Plaintiff fails to provide sufficient evidence of how it has been harmed by NFD's alleged conduct in the 15% Promotion. .  See Trial Tr. But this assertion crumbles upon closer inspection of the record, which reveals, at most, an internal disagreement. After a Motion Hearing held on January 19, 2011, this court hereby orders that, for the reasons set forth in the accompanying Memorandum:  Plaintiff's Assented to Motion to Redact Portions of Trial Record [#320] and NFD's Assented to Motion to Redact Portion of Trial Record [#337] are ALLOWED. seller and installer of flooring and window treatments, has withdrawn a lawsuit  Compl. 7, 171:5-11 [#268] ("The way we discount the price is the same way that our computer discounts the price and discounts the percent off the order, which is, to divide it by 1. (Pinnacle Museum Tower Assn. Aaron Rosenberg, NFD's president, testified that NFD incurred more than $1.5 million in defense costs.  NFD's Trial Ex. (Flores, supra, 212 Cal.App.4th at p. 's Trial Ex. NFD has not argued here (nor demonstrated) that the suit is generally oppressive. vol. See Trial Tr. 93A, 5 [#327]. & Countercl. © 2020 Cook County Record. 10, 109:10-111:7 [#308] (Sam Rosenberg). 10., 109:12-18 [#308] ("We beat the price by 15 percent. , The First Circuit has explained that "[i]n order to prove causation under § 1125(a) of the Lanham Act, the aggrieved party must demonstrate that the false advertisement actually harmed its business.  See Trial Tr. Empire Today, LLC's Mem. McManus is similarly inapposite. There, we concluded an arbitration provision in an automobile lease was procedurally unconscionable because the "lease was presented to plaintiffs for signature on a `take it or leave it' basis. On Jan. 15, 2014, attorneys Rather, since Concepcion, the court has found the FAA applied in a construction defect dispute and proceeded to analyze whether the arbitration clause was unconscionable under California law, all without reference to Concepcion." vol. 921.)  Second, NFD argues that Plaintiff's conduct was undertaken willfully and knowingly to harm NFD's business and, therefore, multiple damages are justified under Chapter 93A, Section 11. 2, 24:2-25:25 [#256] (Plaintiff's version of Amidon's departure). 2, 15:17-18 [#256]. 93A [#331].  Id. 103, and little to no dispute that NFD had used Plaintiff's mark without permission, see Trial Tr., vol. indicate if mediation occurred, nor what the outcome of that mediation may have Court of Appeals of California, First District, Division Five.https://leagle.com/images/logo.png, California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Sign-up Plaintiff's second reply falters for a few reasons. However, where an unconscionability determination "is based upon the trial court's resolution of conflicts in the evidence, or on the factual inferences which may be drawn therefrom, we consider the evidence in the light most favorable to the court's determination and review those aspects of the determination for substantial evidence." YOU CONFIRM THAT YOU RECEIVED A COMPLETELY FILLED-IN COPY WHEN YOU SIGNED IT.'" We disagree. And in contrast to Flores, the arbitration clause was not highlighted in any meaningful way. GG; NFD's Trial Ex. vol.  See Trial Tr. 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.  Eventually Plaintiff filed a Third Amended Complaint, which contained ten counts. Phrased another way, unconscionability has both a procedural and a substantive element.  Additionally, a court "may not set aside the jury verdict and direct the entry of a contrary verdict, unless no reasonable jury could have returned a verdict adverse to the moving party. 93A, 8 [#327].  In response, Plaintiff began sending cease-and-desist letters to NFD.  See Trial Tr. In support of the motion, Empire submitted a copy of the Agreement and the declaration of Mario Lopez, an install manager for Empire. " Filing a groundless claim or having an improper motive of "vexation, harassment, or annoyance" is relevant but does not alone suffice to demonstrate ulterior purpose. Precedential, Citations: vol. It contends: (1) the Illinois choice of law provision is enforceable; (2) it has standing to enforce the arbitration provision; (3) the arbitration provision is enforceable under Illinois and California law, particularly in light of AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ [131 S.Ct. vol. One provision of the Agreement requires the subcontractor to "waive all right[s] to file a Mechanic's Lien" and provides remedies for Empire if the subcontractor does so: The Agreement requires the subcontractor to maintain an "escrow account" and describes the uses for such an account: The arbitration provision is set forth in the 34th and final section on pages 9 and 10 of the Agreement. John Jary & RJ Connection Group, LLC [#205]; Order Dismissal [#258]. "`[S]ubstantive unconscionability focuses on the one-sidedness of the contract terms. (internal citation and quotation marks omitted); see also Broadway Mgmt., 652 F.Supp. Relying on Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 464-465 (Nedlloyd), Empire claims the choice-of-law clause must be "construed broadly" to encompass plaintiffs' claims. 's Mem. Trial Tr. In support of the motion, counsel for Quinonez submitted a declaration averring Quinonez's damages were approximately $22,000.  Trial Tr. A Lanham Act defendant is entitled to an award of its attorneys' fees in "exceptional cases" if it succeeds on its defense. In his declaration, Lopez averred he is "familiar with . 15, should have said NFD divided by 1.15). In keeping with California's strong public policy in favor of arbitration, any doubts regarding the validity of an arbitration agreement are resolved in favor of arbitration. 1148. Choice-of-law provisions contained in [adhesion] contracts are usually respected. BB. vol.  Nat'l Floor Direct, Inc.'s Mem. First, it is contradicted by the record: NFD did in fact provide specific damages in some instances. ." vol. 2005) (holding that an insurer's statements regarding coverage that were based on a reasonable but incorrect interpretation of the policy did not rise to a violation of 93A). Supp. Eulitt v. Me. And even the customer orders showing Dan Rosenberg's alleged miscalculations of 15% (and other percentages) were not definitively established as qualifying for the 15% Promotion.. See Trial Tr. Law Supp. As for the first e-mail, NFD has shown no casual connection between the March 2008 e-mail sent by Dickson and Plaintiff's (not Dickson's) decision to bring suit about eight months later. 3, 102:XX-XXX-XX, 105:5-20 [#260] (testimony of Diane Johnston). Despite the impact of the COVID-19 pandemic, imports of tropical flooring grew 2% in the European Union during the first eight months of 2020 compared with the same period last year, ITTO reports. See Trial Tr. Citations are also linked in the body of the Featured Case. , Plaintiff also alleged three counts against former sales representatives and employees for breaching their sales agreements, confidentiality agreements, and *12 duties of loyalty.  See Id.  See, e.g., Trial Tr. (Samaniego, supra, 205 Cal.App.4th at p. Subcontractor shall pay Empire for all costs and expenses incurred including attorneys fees as well as interest on the amounts due.