Ghasley,
I have no connection with any audio company -- except as a customer. I have no bones to pick with either party here. In fact, the only issue I have ever had with either part is when I had a repair issue with an EMM product. I had it repaired at my own expense before selling it off.
I understand the circumstances of the Tinn vs EMM lawsuit. I have read the court documents from cover to cover.
With all due respect, the court documents show I am not wrong at all. You stated "The case of Tinn vs EMM (please note it was Tinn suing EMM, not the other way)." This is correct, but the fact that Mr. Tinn brought the suit is, ipso facto, proof of nothing at all, per se. In fact, the facts elucidated in the court documents show that essential parts of the judgment actually went against Mr. Tinn. In other words, Mr. Tinn was not able to prove his own claims. This is clearly delineated by the court documents.
I quote from the court documents: "As the proponent of the agreement, Tinn has not met his burden of demonstrating that sufficient facts exist upon which reasonable jurors could find clear and unequivocal proof, by a preponderance of the evidence, that an oral contract existed. Tinn maintains that the parties entered into a binding oral agreement in October 2005, but his own testimony shows they could not have." Mr. Tinn's statements can only be characterized as totally contradictory and confusing -- which is how the court found them.
Please note this paragraph in the court documents:
"As the above discrepancies illustrate, Tinn cannot meet his burden on summary judgment. The court's conclusion in Mukai Living Trust v. Lopez, 199 Or. App. 341, 111 P.3d 1150 (2005) applies with equal force here: "In the present case, nothing in the summary judgment record amounts to evidence from which a rational juror could find that the parties entered into an agreement with terms 'so precise that neither could reasonably misunderstand them.'" Id. at 345 (citation omitted). In this case, no rational juror could find a meeting of the minds on the terms of the alleged oral contract because Tinn himself has not been of one mind about what those terms were. Furthermore, Tinn testified that both he and EMM did not intend to be bound to any agreement without a written contract; given that unrefuted testimony, a rational juror could not find that the parties reached an oral agreement."
All of this cannot reflect well on Mr. Tinn as you will know by reading the details in the court documents. They point out not only to the facts not supporting material claims made by Mr. Tinn, they also point out that Mr. Tinn's memory is woefully deficient as to the major facts in the case. This is clearly shown in this statement in the court documents:
"Thus, Tinn's conflicting testimony about the oral contract's terms is not a basis upon which he may create a question of fact to survive summary judgment." And "Both parties acknowledge the rule that a litigant cannot create a genuine issue of material fact by contradicting prior sworn without explanation" -- which is exactly what the court documents show Mr. Tinn has tried to do in this case.
Further, the court documents state: "This rule does not extend to cases "in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. Rather, [the rule is] concerned with 'sham' testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue offact and avoid summary judgment." Kennedy, 952 F.2d at 267. On summary judgment, it is for the district court to determine whether the contradictory testimony was given in an honest effort to clarify, or was an intentional alteration designed to create a genuine issue of material fact." Please note the court's reference to " ...'sham' testimony".
Further, the court documents state ""Here, Tinn's testimony presented two diverging sets of contract terms. Important to the instant issue, he does not explain the many material discrepancies between his June 2008 deposition description ofthe contract terms and his May 2008 interrogatory description of those terms. Nor has Tinn explained the contradiction between these conflicting accounts of an oral agreement and his unequivocal deposition testimony ... statements which Tinn did not refute at the time and did not refute on summary judgment."
Further, the court refers to Mr. Tinn intentionally misrepresenting his association with EMM. I quote from the court documents: "Taken together, the continued references to EMM on Tinn's websites, Tinn's failure to respond to potential customers' inquiries, his failure to clarify his relationship with EMM, and his affirmative attempts to steer potential EMM customers to his own product line create a genuine issue of material fact as to whether Tinn falsely associated himself with EMM's mark, in commerce, such as to cause confusion about his affiliation with EMM. Therefore, summary judgment on this claim is inappropriate and Tinn's motion is denied."
In the end, what Mr. Tinn ended up with, according to the conclusion of the case, was the following: " ... the court will permit Tinn to proceed on a quantum meruit theory to recover the compensation, if any, EMM did not pay to him for the services and sales he performed for EMM's benefit during the period of their business relationship."
Mr. Tinn was awarded payment for services rendered that may not already have been paid to him. Other than receiving payment for services rendered, Mr. Tinn was clearly not the victor on the major legal points of this case.
Here is the link to those court documents for those who may be interested in reading them:
http://docs.justia.com/cases/federal/district-courts/oregon/ordce/3:2007cv00963/84055/181/0.pdf?1270846062
I believe the points I have made are well founded in fact based on the court record. The relevance to this thread? Would you have confidence in purchasing an expensive audio product from someone who exhibited these characteristics shown in these court records?
