7, 119-120, 159-162 [#268] (Aaron Rosenberg admitting that NFD did use Plaintiff's purchase order);  See Incase Inc. v. Timex Corp., 488 F.3d 46, 57 (1st Cir.2007) ("`In determining whether an act or practice is unfair, as opposed to deceptive, we must evaluate the equities between the parties. vol. First, contrary to Plaintiff's claims, the jury had evidence of specific financial harm caused by Plaintiff's lawsuit against NFD. Unlike the plaintiffs in Flores, Quinonez did not — and could not — read the contract before signing it. ), Second, Empire's argument lacks support in case law. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219, citing Code Civ.  Insofar as Silvers adverted to a speculative desire to "hurt" NFD, there is no showing that Plaintiff sued to hurt NFD's finances or to drive it out of business. NFD argues that attorney fees should be awarded to it, the prevailing defendant, because Plaintiff engaged in abusive and expensive litigation and brought unfounded claims. Supp.
7, 28:24-29:12 [#268] (discussing "devastating impact on [NFD's] ability to do business" and resulting layoffs); Trial Tr. This argument misses the point for two reasons. Considering— as we must — the evidence in the light most favorable to the court's determination, we conclude Quinonez was not presented with an opportunity to negotiate the Agreement.  Int'l Fid. (Samaniego, supra, 205 Cal.App.4th at p. Sign-up and get latest news about the courts, judges and latest complaints - right to your  If the advertisement is implicitly false, the plaintiff has an additional burden to show that the advertisement conveys a misleading message to the viewing public. You may update or cancel your subscription at any time. Under M.G.L. .  These television commercials promise to beat "anyone's price by 15% or it's free. vol. A few months later, Empire moved to dismiss or transfer the case to Illinois pursuant to the Agreement's forum selection clause or, in the alternative, to compel arbitration. One of the strategies mentioned was: "We should aggressively work on the legal front. 2d 49, 61 n. 18 (D.P.R.2010); cf.
Plaintiff had identified NFD as an aggressive challenger in the Boston market by April 2007. First, although it is true that the legal costs incurred in defending against Plaintiff's suit are specific damages and such damages must be affirmatively proved, Plaintiff does not provide any authority that the testimony of a company's president is an insufficient basis for a jury to determine damage to a company resulting from defending against a lawsuit. In the final paragraph of his declaration, Lopez stated only: (1) he "knows" Quinonez because he "was an installer in the San Francisco Market.
 See Ting Ji v. Bose Corp., 626 F.3d 116, 129 (1st Cir.2010). , As for the second point, Dan Rosenberg explained that he sometimes took 15% off a competitor's price by dividing the competitor's price by 1.15.
 In response, Plaintiff began sending cease-and-desist letters to NFD.  Pl. Pl. Compl., 46-47 [#148]; Trial Tr. [Citation.]
2, 70:18-22, 72:11-21, Sept. 28, 2010 [#256] (Steve Silvers explaining that Elenowitz is chairman of the board and owner of Mercury, which acquired Plaintiff, and Elenowitz is the "ultimate decision maker"); David Elenowitz Dep., Feb. 24, 2010, 9:15 a.m. (saying that Mercury owned Empire and Elenowitz was chairman of the board and "final decision maker" of Plaintiff) (not marked as exhibit but played to jury on Trial Tr. Mot. In his declaration, Lopez described his general practice of providing "potential installers" with subcontractor installer agreements. 's Rule 50(b) Mot. & Countercl. To establish a false advertising claim under Chapter 93A, a plaintiff must prove all of the elements of a false advertising claim under Section 43(a) of the Lanham Act. EMPIRE TODAY Installed $7,000 carpet in our entire home that was immediately discolored in areas upon installation and is becoming progressively worse since installation. The absence of a shortened statute of limitations and a one-sided attorney fee provision does nothing to diminish the fact that the Agreement does "not display a modicum of bilaterality."
Our notice to you will be sent to you based on the most recent contact information that you provide us. Under M.G.L.
vol. We disagree. 39, 43, 648 N.E.2d 435 (1995) (noting that the rhetoric of "rascality" is "uninstructive"). HH (discussing the commission structure at NFD in an e-mail sent to Steve Silvers). ), In its opening brief, Empire relies on Lopez's declaration and contends the arbitration provision is not procedurally unconscionable because Quinonez had "unlimited time to review the Agreement, had ample opportunity to bargain, was walked through the Agreement's specific terms, and was welcome to keep a copy of the Agreement.
 Ans.  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S. Ct. 2097, 147 L. Ed. 9, 109:1-2, 134:18-25, Oct. 8, 2010 [#294]. vol. Empire Today, LLC Todd Lipton, Salesman Ryan, installer Dawn Lee, Customer Service Misled me from the sales negotiations, then the carpet installation, now through customer service. Mot. [Citations.]" 's Reply Supp.
NFD's estimated financial harm was instead grounded in various considerations, such as NFD's inability to operate certain offices and the Rosenberg's inability to operate NFD during trial.
's Trial Ex. NFD's conduct did not rise to the level of unfair or deceptive conduct required under Chapter 93A. (Lab. There must in addition be evidence that the negligence was or resulted in an unfair or deceptive act or practice."
93A, 4-5 [#327]. (Ibid, quoting Lhotka, supra, 181 Cal.App.4th at p. Plaintiff offers two replies. Plaintiff may argue that the evidence supported a finding that advertising affected leads and leads affected sales. Those premiums are based on an estimate of the . EEEE (NFD order of Joyce Dore); Trial Tr. Finally, the court declined to sever the unenforceable provisions because "[t]he arbitration provision has multiple unconscionability problems involving multiple provisions. vol. Mot. This court later reserved two of those sevens counts against NFD, both Chapter 93A claims, for itself. Here, the court did not abuse its discretion by concluding severance would not serve the interests of justice. select the organizations
In fact, both Parties may have had each others' old par sheets and commission structure.  Moreover, Defendant relies on a Seventh Circuit decision, Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, which recently held that a plaintiff's abuse of process constitutes an "exceptional case" warranting the award of attorneys' fees to a successful Lanham Act defendant. 10, 114:2-25 [#308] (Sam Rosenberg). YOU ACKNOWLEDGE THAT YOU HAVE READ BOTH SIDES OF THE CONTRACT, INCLUDING THE ARBITRATION CLAUSE ON THE REVERSE SIDE, BEFORE SIGNING BELOW. 93A, 6 [#327]. It's, you know, probably 10 percent of our business every day involves price beats."). A [#217].
 See Order Granting Mot.  Plaintiff argues that NFD mentioned its legal fees incurred in the lawsuit only twice at trial, and in merely general and unsubstantiated ways. Moreover, Sam Rosenberg's statement that NFD gives "15% on every single customer" was also not contradictory.  See, e.g., Trial Tr. vol. vol. Among other things, the court concluded the arbitration provision in the agreement was procedurally and substantively unconscionable.  See NFD's Trial Ex.
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