2010-10-04REPLY(FILED)

RECORD NO. 10-1435

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA 23219 (804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

In The

United States Court of Appeals For The Fourth Circuit

HILL HOLLIDAY CONNORS COSMOPULOS,

INCORPORATED, d/b/a Erwin Penland,

Plaintiff – Appellee,

v.

JEFFREY GREENFIELD; 1ST APPROACH LLC,

Defendants and 3rd–Party Plaintiffs – Appellants,

v.

CELLCO PARTNERSHIP, d/b/a Verizon Wireless;

JOSEPH A. ERWIN,

Third Party Defendants – Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA AT GREENVILLE

REPLY BRIEF OF APPELLANTS

Phillip Jeffrey North THE LAW OFFICE OF P. JEFFREY NORTH LLC Post Office Box 7525 Hilton Head Island, South Carolina 29938 (843) 341-5200 Counsel for Defendants and Third Party Plaintiffs – Appellants

Case: 10-1435 Document: 27 Date Filed: 10/04/2010 Page: 1

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1

OVERVIEW ..............................................................................................................1

REBUTTAL OF APPELLEES’ FACT STATEMENT ............................................7 ARGUMENT ...........................................................................................................14

I. BREACH OF FIDUCIARY DUTY....................................................15

II. CONTRACT .......................................................................................16

III. UNJUST ENRICHMENT / QUANTUM MERUIT ............................21

IV. TRADE SECRET................................................................................25

A. If the SCTSA requires “originality,” the Trial Court erred in failing to consider Professor Fournier’s expert report showing an extraordinarily innovative marketing plan ............25

B. The Trial Court erred in finding insufficient effort, under

the circumstances, to preserve secrecy pursuant to S.C. Code Ann. § 39-8-20(5)(a)(ii)...................................................26

V. TRADEMARK CANCELLATION....................................................28

CONCLUSION........................................................................................................33

ADDENDUM

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE


ii

TABLE OF AUTHORITIES

Page(s)

CASES Angel Flight of Georgia, Inc. v. Angel Flight America, Inc., 522 F.3d 1200 (11th Cir. 2008) .....................................................................32 A.V. ex. rel. Vanderhyre v. iParadigms, LLC,

562 F.3d 630 (4th Cir. 2009) ...........................................................................2 BBA Nonwovens Simpsonville, Inc. v. Superior Nonwovens, LLC, 303 F.3d 1332 (Fed. Cir. 2002) .....................................................................25 Bivens v. Watkins, 313 S.C. 228, 437 S.E.2d 132 (Ct. App. 1993) .......................................15, 16 Concerned Dunes West Residents, Inc. v. Georgia-Pacific Corp., 349 S.C. 251, 562 S.E.2d 633 (2002) ............................................................15 Conmar Products Corp. v. Universal Slide Fastener Co., 172 F.2d 150 (2d Cir. 1949) ............................................................................5 Dallier v. Levi Strauss & Co., No. 95-2551, 86 F.3d 1149 (table only), 1996 WL 279003 (4th Cir. May 28, 1996)........................................21, 22, 23 Duncan v. Brookview House, Inc., 262 S.C. 449, 205 S.E.2d 707 (1974) ......................................................15, 16 E.I. DuPont de Nemours Powder Co. v. Masland,

244 U.S. 100 (1917).........................................................................................5 Goddard v. Fairways Development General Partnership, 310 S.C. 408, 426 S.E.2d 828 (Ct. App. 1993) .............................................15 Goiser v. Harper, 307 S.C. 64, 413 S.E.2d 845 (Ct. App. 1992) ...............................................16


iii

Hamilton Nat. Bank v. Belt, 210 F.2d 706 (D.C. Cir. 1953)................................................................passim How. J. Ryan & Associates, Inc. v. Century Brewing Co., 185 Wash. 600, 55 P.2d 1053, 104 A.L.R. 1353 (1936) ...............................22 International News Service v. Associated Press,

248 U.S. 215 (1915)...........................................................................3, 5, 6, 14 Liggett & Meyer Tobacco Co. v. Meyer, 194 N.E. 206 (Ind. App. 1935) ......................................................................22 Meinhard v. Salmon,

164 N.E. 545 (N.Y. 1928) ...............................................................................5 Orient Express Trading Co. Ltd. v. Federated Dept. Stores, Inc., 842 F.2d 650 (2d Cir. 1988) ..........................................................................32 Provident Life & Acc. Ins. Co. v. Waller, 906 F.2d 985 (4th Cir. 1990) ...........................................................................3 Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174 (7th Cir. 1991) .....................................................................5, 28 Servo Corp. of Am. v. General Electric Co.,

337 F.2d 716 (4th Cir. 1964) .......................................................................3, 4

STATUTES 15 U.S.C. § 1051(a)(3)(D) .......................................................................................28 15 U.S.C. § 1051(a)(3)(D)(ii)(I) ........................................................................28, 32 S.C. Code § 39-8-20(5)(a)-(b) .................................................................................25 S.C. Code § 39-8-20(5)(a)(ii)...................................................................................26 RULE Fed. R. App. P. 28(c) .................................................................................................1


iv

OTHER AUTHORITIES II George H. Palmer, The Law of Restitution § 10.11 (1982 & Supp.) ..................23 Annot., Rights and Remedies as Between Originator of Un-Copyrighted Advertising Plan or Slogan, or His Assignee, and Another Who Uses or Infringes the Same, 157 A.L.R. 1436 (1945 & Supp. 2010) (available on WESTLAW; collects cases nationwide, none arise from South Carolina) .............22 Arthur R. Miller, Common Law Protection for Products of the Mind: An “Idea” Whose Time Has Come, 119 Harv. L. Rev. 703 (2006) .... 2-3, 12, 14, 23 Hon. David H. Simmons, The Celotex Trilogy Revisited: How Misapplication of the Federal Summary Judgment Standard is Undermining the Seventh Amendment Right to a Jury Trial, 1 Fla. A & M U. L. Rev. 1 (2006) ..................................................................................................11 Leo J. Raskind, The Misappropriation Doctrine as a Competitive Norm of Intellectual Property Law, 75 Minn. L. Rev. 875 ....................................................14


1

INTRODUCTION

Pursuant to FRAP Rule 28(c), and this Court’s Briefing Order, Appellants–

Defendants 1st Approach LLC and Jeffrey Greenfield (“Greenfield” or

“Appellants”) hereby submit their Reply. Appellees’ Brief is cited as “Opp. Br.”

OVERVIEW

Greenfield created “Amazing Grace,” a comprehensive “branded

entertainment” marketing plan1 subsequently renamed “How Sweet the Sound”

(“HSTS”),2 which is presently being used successfully by Erwin-Penland’s (“EP”)

largest client, Verizon Wireless (“VZW”), to market wireless phone services to

African-Americans.3 In collaboration with Greenfield over many months, EP also

contributed creative ideas to HSTS. EP’s CEO, Joseph Erwin (“Erwin”), admitted

in 2007 that HSTS was “50% his [Greenfield’s] idea” in response to EP staff

inquiries about ownership of HSTS, for purposes of preparing EP’s trademark

application to the USPTO, so that HSTS could be licensed to VZW.4

1 Greenfield’s Amazing Grace is set forth in three documents: JA-910 to JA-915 (Product Placement, Nov. 3, 2005); JA-921 to JA-941 (Internet Buzz, Nov. 3, 2005); JA-1375 to JA-1379 (Amazing Grace Overview, Nov. 4, 2005). 2 JA-1172 (Nov. 7, 2005 e-mail from EP’s Shannon Wilbanks to EP’s Joe Erwin, et. al., re: Captain D’s Meeting). 3 See www.howsweetthesound.com. 4 JA-1098 (May 9, 2007 e-mail from EP’s Joe Erwin to EP’s Allen Bosworth).


2

Appellees argue that the origin of HSTS is “… irrelevant to the legal claims

at issue in this case … because it is impossible for anyone to ‘own’ an idea,”5

citing A.V. ex. rel. Vanderhyre v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009).

The District Court, citing iParadigms, alluded to the idea-expression dichotomy of

copyright law as a basis for holding that Greenfield’s efforts to protect his trade

secrets, which included a prominent copyright notice,6 were insufficient. To be

clear, Greenfield made no copyright infringement claim in this case, and reliance

upon these cases is inapposite.

Appellees’ claim that “it is impossible for anyone to ‘own’ an idea” is

disingenuous, and the Trial Court appears to have accepted the notion at face

value.7 Appellees’ argument is based upon false premises: 1) that a copyright

claim has been made in this case; and 2) that no legal theory can support recovery,

as between the parties, with respect to financial gains arising from the exploitation

of creative ideas.

Trade secret, contract, quantum meruit, fiduciary duties, unfair competition,

and misappropriation theories have all been applied to resolve disputes involving

the profitable exploitation of “products of the mind.” See generally, Arthur R. 5 Opp. Br. at 7, fn. 4. 6 Tr. Ct. Order as to VZW Motions at 10-11, JA-167 to JA-168; Tr. Ct. Order as to EP Motions at 11-12, JA-186 to JA-187. 7 Opp. Br. at 7, fn. 4.


3

Miller, Common Law Protection for Products of the Mind: An “Idea” Whose Time

Has Come, 119 Harv. L. Rev. 703 (2006). Thus, as between collaborators, it has

always been possible to contractually or equitably “own an idea” in the sense that

one party may agree to exploit an idea developed jointly, while the other may agree

to refrain from doing so, and courts have been willing to enforce such an

agreement.

Outside patent and copyright, courts are justifiably reluctant to grant

monopoly rights in “products of the mind” under a “property right” theory.

Justice Brandeis, in strong dissent to a majority opinion that judicially created a

new species of “property interest” in ideas (“hot news”), concluded that, as

between one party and the entire world, ideas are “free as the air” for common use.

International News Service v. Associated Press, 248 U.S. 215, 250 (1915)

(Brandeis, J., dissenting) (underscoring supplied), while distinguishing recoveries

allowed under state law when relationship trusts are breached. As discussed

below, most courts do not follow the International News “property theory.”8 The

8 Appellants’ WESTLAW research reveals no Fourth Circuit case since Servo Corp. of Am. v. General Electric Co., 337 F.2d 716, 725 (1964) (the first Servo appeal), to specifically address Int’l News in the context of a relationship-based “unjust enrichment” claim, as here. In granting relief for “unfair competition,” while doing so under the heading “unjust enrichment,” Servo’s citation of Int’l News with approval appears to leave open whether this Court relied on the Int’l News majority, or the dissenting view. It appears to have been the latter. See also Provident Life & Acc. Ins. Co. v. Waller, 906 F.2d 985, 993-994 (4th Cir. 1990) (weaving federal common law remedy of unjust enrichment into the statutory fabric of ERISA).


4

issues before the Court in this case concern Greenfield’s rights not as against the

whole world, but as against entities with whom Greenfield had a collaborative

business relationship. The correct outcome of this case, therefore, depends on this

Court’s application of common law causes of action, state law, and federal

trademark law to Greenfield’s relationship-specific facts. Greenfield makes no

claim as to “ownership” of the ideas inherent in his marketing plan as against

anyone but EP and VZW.

Professor Miller’s compelling synthesis of “idea law” states that this Court,

and others faced with similar “idea law” problems, should apply such appropriate

state law causes of action as apply to the facts, but do so guided by a functional

analysis of: (1) the potential monopoly effect (here, allowing Greenfield’s state law

claims to proceed based on relationship-specific facts can have no such effect);

and (2) whether the defendants enjoyed a material gain from unauthorized

appropriation and use (here, EP and VZW’s use of Greenfield’s marketing plan to

gain customers for VZW).

Plaintiffs like Greenfield, who lack effective means of protecting their

“products of the mind” under patent or copyright must pursue civil claims based on

trade secrecy, contract, quantum meruit, and fiduciary law based on relationship-

specific facts. Servo Corp. of Am. v. General Electric Co., 337 F.2d 716, 725

(1964). In those cases, the task of enunciating the proper theory of relief has


5

challenged the 20th century’s most celebrated jurists, including Cardozo,9

Holmes,10 Brandeis,11 Hand,12 and Posner,13 who have engaged in a century-long

9 Cardozo: Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (classic statement of fiduciary duty of business partner to notify joint venture partner of business opportunity within the scope of the relationship, “A trustee is held to something stricter than the morals of the market place. Not honesty alone but the punctilio of honor the most sensitive, is then the standard of behavior.” 10 Holmes: E.I. DuPont de Nemours Powder Co. v. Masland, 244 U.S. 100 (1917) (espousing “relationship view” – as opposed to “property view” of trade secret protection, holding that employer is entitled to protect its trade secrets not as a “property right,” but can enjoin breach of a confidence the employer has reposed in its employee); Int’l News, supra, 248 U.S. 215, 246-248 (terse dissenting opinion urging legislation in lieu of judicial activism; would limit relief to theory of “unfair competition by reason of reverse palming-off,” since INS did not acknowledge AP as its news source, just as EP has refused to publicly acknowledge Greenfield’s intellectual contributions in the present action). 11 Brandeis: Int’l News, supra, 248 U.S. 215, 248-267 (thorough dissenting opinion urging, like Holmes, legislation in lieu of judicial activism to address gaps in monopoly rights in ideas, treating ideas as “free as air” unless Congress grants protection; rejects majority’s “property” interest in otherwise unprotected hot news and serves as road map for issues arising between Greenfield, EP, and VZW, including common law contract, breach of fiduciary duty, and trade secret theories of recovery). 12 Hand: Conmar Products Corp. v. Universal Slide Fastener Co., 172 F.2d 150 (2d Cir. 1949) (in contrast with Holmes and Brandeis, accepts “property view” of trade secrets as a means of protecting trade secrets against acquisition through improper means, as opposed to breach of contract or fiduciary duty; applies property view to “bona fide acquirers” who have no binding obligation until notified such obligation exists). 13 Posner: Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 179 (7th Cir. 1991) (holding that what is “reasonable” in trade secret disclosure analysis depends on balancing costs and benefits, and hence should not be decided at summary judgment stage except in “extreme cases”).


6

debate as to the precise circumstances where recovery should be allowed within a

legal framework that should encourage, rather than restrict, commerce in ideas.

The conclusion reached by these celebrated jurists, over time, is that while

legislation can create new classes of “monopoly rights” or “property rights” in sui

generis cases, as in International News, such legislation is not essential to

adjudicate private disputes.

In this context, Professor Miller reports and analyzes Hamilton Nat. Bank v.

Belt, 210 F.2d 706 (D.C. Cir. 1953) (applying D.C. law), in which the United

States Court of Appeals for the District of Columbia stated as follows:

The law shies away from according protection to vagueness, and must do so especially in the realm of ideas with the obvious dangers of a contrary rule … Protection of ideas at all, in contrast with inventions, literary productions and trade secrets…must be careful to avoid attributing to individual ownership that which is in reality common property; and it would be unwise to place a burden upon communication of ideas by requiring compensation for their adoption and use. But the dangers suggested are sufficiently avoided to warrant the law in placing an idea among protected property rights when it is definite and concrete, new and novel, has usefulness and is disclosed for commercial purposes in circumstances which the parties ought reasonably to construe as contemplating compensation for its use.14 (Underscoring supplied) Belt involved an agreement between private parties to produce for radio a

series of high school talent shows and, as such, it is by far, the closest on its facts

14 Hamilton Nat’l Bank v. Belt, 210 F.2d 706, 708-09 (D.C. Cir. 1953).


7

to the present case that has reached any Federal Circuit Court of Appeals.15 As

shown in Appellants’ Brief and herein, and in Professor Fournier’s scholarly 29-

page analysis of the marketing plan at the core of this dispute,16 Greenfield’s HSTS

clearly meets each of the above-shown underscored tests of the Circuit Court’s

opinion.

For these reasons, this Court should reject Appellees’ self-serving

simplification of “idea law,” and remand the case to the District Court for a jury

trial on Appellants’ claims in regards to trade secret, trademark cancellation,

fiduciary duty and good faith obligations, express or implied-in-fact contract, and

quantum meruit / unjust enrichment.

REBUTTAL OF APPELLEES’ FACT STATEMENT Under a deadline and lacking new ideas,17 EP sought out Greenfield in

October, 200518 to enlist his help in landing a national advertising account for EP,19

15 Hamilton is discussed in detail infra, at p.23. 16 JA-1411 to JA-1440 (Fournier Expert Witness Report). 17 JA-1406 (Oct. 27, 2005 e-mail from Shannon Wilbanks to Joe Erwin et. al. re: Captain D’s “Challenge”). 18 JA-1361 (Oct. 24, 2005 e-mail from Joe Erwin to Jeff Greenfield). 19 Id.; JA-1005 (Slide from Captain D’s Presentation re: “How Sweet the Sound”)


8

and a resulting business opportunity20 for both. Greenfield responded by

delivering a branded entertainment marketing plan21 so perfectly suited for

African-American customers that it won a coveted “Effie” award,22 a fact that EP

continues to tout for its own financial benefit – entirely without attribution to

Greenfield.23

Greenfield protected his marketing plan from unauthorized use: (1) by

insisting to EP, before drawing up the plan, upon a shared ownership interest in it;

and (2) by placing prominent confidentiality notices on the cover pages of his

disclosures to EP.24 While the collaboration of Greenfield and EP (“Greenfield-

EP”) failed to land the first account,25 the prospective client’s enthusiastic

feedback26 convinced Greenfield-EP that the HSTS marketing plan could attract

20 JA-290 (Gf. Dep. at 106:5-11). 21 JA-910 to JA-915 (Product Placement, Nov. 3, 2005); JA-921 to JA-941 (Internet Buzz, Nov. 3, 2005); JA-942 to JA-964 (Branded Entertainment Financing, Nov. 3, 2005); JA-1375 to JA-1379 (Amazing Grace Overview, Nov. 4, 2005). 22 JA-1350 (Effie Award Announcement). 23 See http://www.erwinpenland.com/news/details/48 (last visited Oct. 3, 2010). 24 JA-910; JA-921; JA-942; JA-1375 (cover page confidentiality notices). 25 JA-1514:18 to JA-1516:18 (Nov. 28, 2005 Erwin voice message to Greenfield). 26 Id. at JA-1516:5-14.


9

other sponsors.27 Greenfield-EP then sought a $12.6 million28 funding

commitment from VZW in which VZW, together with Greenfield-EP, would co-

own the marketing plan in an LLC, 29 along with the resulting intellectual property

assets,30 such as concert recordings, that the plan is designed to create.31

Following an April 26, 2006 presentation to VZW by Greenfield-EP, VZW

“rejected” one aspect of the plan, a proposed reality TV series.32 After

considerable discussion between EP and VZW, in June 2006,33 Greenfield-EP

revised the plan34 to reduce the costs substantially by sponsoring smaller events

27 JA-1517 (Dec. 9, 2005 e-mail from Jeff Greenfield to Joe Erwin). 28 JA-1567 (Apr. 26, 2006 presentation deck). 29 JA-1575 to JA-1576 (Mar. 28, 2006 e-mail from EP’s Shannon Wilbanks, for Joe Erwin, to Jeff Greenfield et. al.). 30 JA-1575 (memo); JA-232 (deck slide); JA-239 (deck slide); JA-1185 to JA-1186. 31 Even if EP’s confused argument that “you can’t own an idea,” supra, is true, Greenfield-EP understood they surely could “own” recorded music performances. See www.howsweetthesound.com. 32 JA-386:14-19. 33 JA-1462 – JA-1499:17 (Jun. 9, 2006, recorded phone conversation). 34 JA-1522 – JA-1541 (May 19, 2006 deck).


10

with less TV.35 Thereafter, VZW began funding36 HSTS with a Memphis pilot in

2007,37 followed by a national campaign in 2008.38

As soon as HSTS funding began in 2007, EP, even as Erwin acknowledged

Greenfield’s co-creation of HSTS,39 concealed VZW’s acceptance of the marketing

plan,40 and stonewalled Greenfield’s inquiries about VZW’s commitment.41

Thereafter, EP applied for federal trademark protection,42 concealing from the

USPTO Greenfield’s co-authorship of HSTS and the Greenfield-EP uses of it in

commerce;43 registered domain names;44 and filed a “hip pocket” declaratory

35 JA-1539 and JA-1522. 36 JA-1593 (Feb. 19, 2007 e-mail from EP’s Beth Carter to EP’s Allen Bosworth re: “approval”). 37 JA-1606 to JA-1613. 38 JA-1613. 39 JA-1098. 40 JA-1321 ¶ 18 (Greenfield Affidavit). 41 JA-1602 to JA-1603. 42 JA-1099 (Carter e-mail); JA-1620 to JA-1632. 43 JA-1172 (Capt D’s presentation); JA-1577 et. seq.; JA-208 et. seq.; JA-1523 et. seq. (three VZW presentations on 12/29, 4/26, 6/19). 44 JA-1701 to JA-1702 (May 15, 2007 domain name registration).


11

judgment action against Greenfield in South Carolina state court that was not

served upon him until nearly three months after its filing.

In granting summary judgment against Greenfield, the District Court failed

to consider notes of meetings from EP’s Shannon Wilbanks, plans, proposals,

confidentiality notices, memoranda, draft and final presentations, or the many e-

mail exchanges between Greenfield-EP,45 all of which show genuine issues of

material fact. From dozens of documents on record, the Trial Court singled-out

one,46 appearing to base summary judgment upon it, and repeatedly applying the

Trilogy’s “no reasonable jury” standard47 without drawing any reasonable

inferences in favor of Greenfield, the non-moving party. Moreover, the Trial

Court’s opinions relied on deposition passages frequently taken out of context, and

ignored the abundant documentary evidence submitted by Greenfield in support of

his claims. The District Court appears to have been guided by the desire described

45 E-mail and telephone conference calls were the primary means of the parties’ interactions, and Erwin’s Executive Assistant, Shannon Wilbanks, recorded and distributed copious notes as events unfolded. 46 JA-208 – JA-243 (April 26, 2006 Presentation Deck). 47 Hon. David H. Simmons, The Celotex Trilogy Revisited: How Misapplication of the Federal Summary Judgment Standard is Undermining the Seventh Amendment Right to a Jury Trial, 1 Fla. A & M U. L. Rev. 1 at 1 (2006).


12

by Professor Miller to bypass the “evidentiary and administrative difficulties”

associated with this complex case.48

Appellees’ attempted diminution of Greenfield’s professional qualifications

is refuted in Professor Fournier’s expert report49 in which she acknowledged

Greenfield’s national reputation as an expert in branded entertainment marketing.50

As to the origin of HSTS, Professor Fournier concluded:

“… (g)iven his role as originator of the above foundational documents, I believe that Greenfield could be considered the lead developer of the Amazing Grace Choir Competition idea.”51

Fournier’s 29-page report explains that Greenfield’s genius in HSTS was to

apply entertainment industry techniques in creative combinations to build an

effective grass roots marketing campaign.52 It was error for the Trial Court to fail

to consider Fournier’s report.

48 Miller, supra, 119 Harv. L. Rev. at 711, 731-732 (2006) (“Although idea cases can be complicated, fact-driven, and somewhat evanescent, courts should not bar plaintiffs to save costs by avoiding difficult evidentiary inquiries and ambiguities. Doing so creates new costs by producing inequitable results and maintaining a legal system providing no incentive for mental creativity.”) 49 Professor of Marketing, and Dean’s Research Fellow at Boston University’s Graduate School of Management. See JA-1411 et. seq. 50 JA-1421 to JA-1422. 51 JA-1426. 52 JA-1414.


13

As to Greenfield’s allegedly “limited role” at the Greenfield-EP presentation

to VZW, it is contradicted by the extensive collaboration between Greenfield-EP

described by Professor Fournier;53 by email correspondence from Erwin to

Greenfield on March 20, 2006,54 and on March 27, 2006;55 by documents showing

that Greenfield addressed 13 of the slides presented;56 the presentation ‘deck’ itself

in which Greenfield-EP were introduced as the “How Sweet the Sound Team,”57

and in which the following masthead was shown:58

“HOW SWEET THE SOUND” A branded entertainment concept for Verizon Wireless

Copyright by Erwin-Penland/1st Approach April 26, 2006

In his deposition more than three years after the event, Greenfield testified

that he could not recall who said what at the April 26, 2006 presentation to VZW,

in part due to the many “trial-runs” that Greenfield-EP had made in preparation.59

53 JA-1425-1429. 54 JA-1057. 55 JA-1056. 56 JA-1324 – JA-1335 57 JA-215. 58 JA-243. 59 JA-1054.


14

ARGUMENT

When “products of the mind” lie at the core of an “idea claim” case, courts

have struggled to do justice between the parties without running afoul of the

Copyright Act’s prohibition of creating “ownership” in an idea. See generally,

Arthur R. Miller, Common Law Protection for Products of the Mind: An “Idea”

Whose Time Has Come, 119 Harv. L. Rev. 703 (2006). Some federal courts have

applied a “misappropriation doctrine” pursuant to International News Service v.

Associated Press, 248 U.S. 215, 242 (1915). However, most courts have not

followed the Int’l News “property right” theory, but rather, have found a violation

of common law duties arising from the relationship between the party making

disclosure, and the party making unauthorized use.60 See generally, Leo J.

Raskind, The Misappropriation Doctrine as a Competitive Norm of Intellectual

Property Law, 75 Minn. L. Rev. 875.

The ascendancy of “relationship” theory over the “property right” assertion

of Appellees is central to the case, and the Trial Court erred by failing to consider

the abundant relationship-specific facts between the parties which contradict

Appellees’ assertion that Greenfield has no property right in his own creation.

60 See footnotes 10-12, supra (Holmes, Brandeis, and Hand)


15

I. BREACH OF FIDUCIARY DUTY

Appellants’ Brief, at pp. 42-52, presents undisputed facts that mandate

applying Duncan v. Brookview House, Inc., 262 S.C. 449, 205 S.E.2d 707 (1974).

Under South Carolina law, a “promoter” is defined as one who “plans or

organizes” a new business venture. Bivens v. Watkins, 313 S.C. 228, 233, 437

S.E.2d 132, 135 (Ct. App. 1993). Appellees have produced nothing to contradict

the undisputed fact that Greenfield and EP were co-promoters of the HSTS

business plan, and in particular with respect to VZW’s prospective $12.6 million

investment therein.61

EP’s attempt to distinguish Duncan v. Brookview House, Inc., 262 S.C. 449,

205 S.E.2d 707 (1974) on its facts fails because the South Carolina Supreme Court

has applied the entrepreneurial co-promoter’s duty found in Duncan broadly in

analogous situations. See Goddard v. Fairways Development General Partnership,

310 S.C. 408, 426 S.E.2d 828 (Ct. App. 1993); Concerned Dunes West Residents,

Inc. v. Georgia-Pacific Corp., 349 S.C. 251, 562 S.E.2d 633 (2002).

61 See JA-1244 to JA-1245 (memorandum showing key points the parties agreed to present to VZW at their April 26, 2006 presentation); compare JA-214 to JA-215; JA-238 to JA-239 (April 26, 2006 presentation slides showing actual terms of VZW’s prospective investment as co-presented by EP-Greenfield, with VZW to invest $12.6 million, and VZW to receive 40% of the revenues).


16

Moreover, EP’s argument that it cannot be found liable for breaching its

fiduciary duty to Greenfield because How Sweet the Sound LLC never came into

existence62 is rejected in both Bivens, supra, 437 S.E.2d at 134 (compensable

injury arose from promoters’ pre-incorporation breach of fiduciary duty) and

Goiser v. Harper, 307 S.C. 64, 413 S.E.2d 845, 847 (Ct. App. 1992) (dispute arose

not within the partnership but because the promoter failed to create the intended

partnership).

Since Duncan creates a fiduciary duty among co-promoters, and since

Appellees have failed to identify any genuine issue of material fact negating the

co-promoter relationship or its breach, the Trial Court erred in refusing to grant

summary judgment in Greenfield’s favor as to his claim arising from EP’s breach

of fiduciary duty.

II. CONTRACT

Throughout this litigation, Appellees have mischaracterized this case as a

“failed contract negotiation” between Greenfield-EP and VZW to develop a reality

TV series that Greenfield-EP proposed. The Trial Court, in using “speculative” 18

times in regards to Greenfield’s marketing plan, appears to have accepted

Appellees’ mischaracterization. It was error for the Trial Court to fail to consider

facts which show: a) that an innovative, award-winning and successful marketing

62 Opp. Br. at 38, fn. 23.


17

program that continues in use today cannot merit the label “speculative;” and b)

that HSTS – an enormously successful national campaign – cannot be the result of

a “failed transaction.” If by “speculative” the Trial Court meant a lack of similarity

between Greenfield’s work product in 2005/2006, and the HSTS program as it

exists today, Professor Fournier’s Report proves otherwise, and it was error for the

Trial Court to fail to consider her Report because it clearly shows genuine issues of

material fact which are at the heart of this case.

Appellees claimed, and the Trial Court recited as fact, that Greenfield

admitted in deposition that he never had a contract with Erwin-Penland.63

Greenfield’s testified 64 that while he did not have a formal written contract with

EP,65 he did have an agreement with EP.66 Clearly, Greenfield made no

“admission” warranting the District Court’s finding.

Equally important, Appellees claimed, and the Trial Court found, that

Greenfield’s only reasonable expectation from his collaboration with EP was to act

as a television producer for a reality TV series.67 Whether such an understanding

63 Opp. Br. at 43. 64 JA-800:12-801:25. 65 JA-802:13-18. 66 JA-800:22 to JA-801:7. 67 Opp. Br. at 10.


18

existed is for a jury to decide. As Greenfield explained in his deposition,68 this

mischaracterization confuses “event production” with “television production,” and

ignores the fact that the choir competitions must be arranged, orchestrated, and

produced, with or without TV cameras present.69

Moreover, as a grass-roots campaign, HSTS does not even require television

to be successful.70 The campaign as it is running today does not involve a reality

TV series, per se, although several television shows have been made of it. See

www.howsweethesound.com.71

It was error for the Trial Court to fail to consider that in their June 9, 2006

conference, more than two months after the April 26, 2006 presentation at which

Appellees claim VZW rejected HSTS, EP’s Bosworth said to Greenfield “there’s

momentum (at VZW) around this, because they’re having a significant numbers

68 JA-783 to JA-784. 69 Greenfield repeatedly reminded EP, long before VZW chose not to pursue an episodic TV series, that the marketing benefit from HSTS would be realized even if concerts were never televised. JA-1184 to JA-1185. 70 JA-1417 (Fournier Expert Witness Report). 71 Opp. Br. at 14; JA-1344 to JA-1345.


19

(sic) of meetings up there on how to – you know, how to construct this thing;”72

and that HSTS is “perfect” except that issues remained as to costs.73

To address VZW’s cost concerns, Bosworth, Erwin and Greenfield agreed to

revise the marketing plan to bring the costs down “…in the couple, $3 million

range.”74 Those revisions modified HSTS from a big-budget reality TV Series

costing $12.6 million to a $5.4 million program with more events in smaller

venues, and a season-ending TV special,75 or documentary.76

Near the end of the discussion, the following exchange occurred between

Erwin, Bosworth and Greenfield:77

JOE: …. Let me --when -- when we talked yesterday, before I called you, the -- the real purpose to – to get back engaged with you was to make sure that we were on the same boat, that despite the fact that this is changing and that the budget’s not going to be what we went in with originally and thought was smart, as we discussed yesterday, Jeff, when I spoke with you, is for me to place that call and make sure you were still just as engaged and just as interested. And I think you are. (underscoring supplied). JEFF: Absolutely.

72 JA-1464:10-13. 73 JA-1469:16-23. 74 JA-1476. 75 JA-1470 to JA-1476; JA-1345. 76 JA-1492 to JA-1493. 77 JA-1496 to JA-98.


20

Following the above-shown affirmation of the Greenfield-EP agreement, a

discussion about ‘next steps’ occurred in which Greenfield agreed to prepare a

revised HSTS plan and production budget involving smaller crews and smaller

venues to be presented to VZW to secure the commitment.78 On June 13, 2006,

Greenfield prepared a revised plan and production budget for 25 local competitions

at a cost to VZW of $2.5 million, and a national televised, season-ending show at

$2.9 million with Greenfield “… to handle all production and EP to handle all

other marketing.”79 On June 19, 2006, Bosworth prepared a revised ‘deck’

incorporating Greenfield’s plan and production budget, and forwarded it to VZW.80

Thereafter, on July 12, 2006 Bosworth informed Greenfield that HSTS is “… still

very much a go. They (VZW) are reviewing things internally based on my last

submission. It looks like a 2007 initiative.”81

The June 9, 2006 Greenfield-EP agreement to limit TV coverage to a finale

or a documentary contradicts the Trial Court’s ultimate finding of fact that

78 JA-1496 to JA-1498. 79 JA-1065. 80 JA-1522. 81 JA-1343.


21

Greenfield could expect nothing further when VZW’s chose not to produce the

big-budget reality TV series.82

Bosworth’s prediction that HSTS would be a 2007 VZW initiative was

accurate in that the Memphis Pilot was conducted in October 2007. However, it

was produced without Greenfield since by that time EP had embarked upon a

campaign to extinguish Greenfield’s interests in HSTS by refusing to respond to

Greenfield’s communications, un-consented intellectual property registrations, and

a cover story that he was nothing more than the producer of a reality TV Series that

was never made.83

III. UNJUST ENRICHMENT / QUANTUM MERUIT

Appellees characterize this Court’s unpublished opinion in Dallier v. Levi

Strauss & Co., No. 95-2551, 86 F.3d 1149 (table only), 1996 WL 279003 (4th Cir.

May 28, 1996), as “closely on point.” Dallier applied California law to affirm

summary judgment upon copyright infringement claims. There, Defendant

introduced “independent creation” evidence the claimant could not rebut. Id. at *1.

“Substantial similarity” was lacking as between proposed ads and those the

defendant actually used. Id. at *2. The Court cited these fatal shortcomings in

rejecting plaintiff’s implied contract and unjust enrichment claims, both of which

82 JA-386:14-19. 83 JA-1508.


22

failed because no request for compensation had been made, as California law

required. Id. at *3. Thus, the Dallier claims failed because they were weak claims.

This Court’s observation in Dallier that “there is no evidence of an industry custom

to compensate for ideas submitted in such a manner” shows only that the Dallier

plaintiff failed to produce evidence of any such custom.

Dallier does nothing to negate a legal obligation to compensate for

advertising idea submissions that are accepted and used under circumstances where

a reasonable expectation of compensation is present. See, e.g., How. J. Ryan &

Associates, Inc. v. Century Brewing Co., 185 Wash. 600, 55 P.2d 1053, 104

A.L.R. 1353 (1936) (jury verdict on fact issues; finding no express contract, court

granted quantum meruit relief); Liggett & Meyer Tobacco Co. v. Meyer, 194 N.E.

206, 210 (Ind. App. 1935) (jury verdict for advertising idea submitter; court uses

language of “property right” in ideas, but jury instructions suggest verdict rendered

on implied contract theory); see generally, Annot., Rights and Remedies as

Between Originator of Un-Copyrighted Advertising Plan or Slogan, or His

Assignee, and Another Who Uses or Infringes the Same, 157 A.L.R. 1436 (1945 &

Supp. 2010) (available on WESTLAW; collects cases nationwide, none arise from

South Carolina).

Unlike the Dallier plaintiff, Greenfield has made no copyright claim. As to

Greenfield’s contract, implied-in-fact contract and quantum meruit claims, the lack


23

of similarity between what was proposed and what is running today has not been

seriously contested, but if were, Professor Fournier’s expert report and testimony

furnish extensive support.84 EP and VZW, by contrast, have produced no evidence

showing independent creation of HSTS, and have failed to rebut Professor

Fournier’s detailed analysis showing substantial similarity.85 To the extent South

Carolina law might require these elements, as in Dallier, summary disposition is

inappropriate.

In contrast with the legally and factually inapposite Dallier, the D.C.

Circuit’s Hamilton Nat. Bank v. Belt, 210 F.2d 706 (D.C. Cir. 1953) (applying

D.C. law) is squarely on point, and furnishes a principled basis for granting relief

upon Greenfield’s quantum meruit claim. According to the most comprehensive

treatise on unjust enrichment, Belt contains “one of the most accurate formulations

of current law” regarding misappropriation of creative ideas that have been

submitted in confidence. II George E. Palmer, The Law of Restitution § 10.11 at

468, fn. 18 (1978 & Supp.) (Palmer’s full analysis of Belt attached hereto at p. 4 of

Addendum to Reply Brief); see also Miller, 119 Harv. L. Rev. 703, 721-722

(2006) (quoting extensively from Belt in connection with broader discussion of

novelty requirement).

84 JA-1411 to JA-1440. 85 JA-1436 to JA-1440 (chart comparing attributes).


24

In Belt, as here, an “idea man” created a sponsorship opportunity based on a

series of school-based talent competitions, with performances of selected

participants to be broadcast on radio. The defendant bank agreed to pay the “idea

man” $25/week to orchestrate the talent competitions. Two weeks into the

arrangement, the bank canceled the contract based on an unmet contingency, paid

the “idea man” $50, and disclaimed any further obligation to compensate for use of

the creative idea. Later, the bank resumed the talent competition, hiring a different

party to orchestrate the competitions and broadcasts. Following a jury trial and a

verdict for, the District Court denied post-trial motions, and the D.C. Circuit

affirmed.

In this case, as in Belt, all factors that the D.C. Circuit found necessary to

recover are present and were shown to the Trial Court, as follows:

1. As in trade secret law, the idea must have some minimal element of

novelty or originality. The question of novelty is for the jury, if conflicting

evidence raises the issue. Id. at 708. There, the plan for the talent competitions

was sufficient.

2. The idea must be sufficiently concrete to be deserving of protection.

This, too, may be submitted as a fact question to the jury. Id. at 708-709. The jury

found sufficient concreteness in the plan.


25

3. The idea must be disclosed under circumstances that contemplate

compensation for its use. Id. at 710. The court found that a personal services

contract, abandoned due to delays arising from outside forces, provided a sufficient

expectation of compensation if the idea subsequently was put to use, and thus

warranted compensation to its originator.

The 1953 Belt case remains good law today, having been cited with approval

as recently as 1987, and it is the only case with facts virtually identical to this case

to reach a Federal Circuit Court.

IV. TRADE SECRET

A. If the SCTSA requires “originality,” the Trial Court erred in failing to consider Professor Fournier’s expert report showing an extraordinarily innovative marketing plan.

When contested issues arise under S.C. Code § 39-8-20(5)(a)-(b),86 juries,

not judges, must review the evidence and weigh expert testimony showing that a

business technique is “very novel,” “really quite unusual,” and “very, very

unusual.” BBA Nonwovens Simpsonville, Inc. v. Superior Nonwovens, LLC, 303

F.3d 1332, 1340 (Fed. Cir. 2002) (affirm jury verdict as to “combination” trade

secret based on expert’s testimony).

Greenfield’s expert, Professor Fournier, explained the originality in HSTS as

follows:

86Attached hereto at pps.12-13 of Addendum.


26

If Greenfield’s model and perspective were commonplace, as claimed by EP, campaigns adopting them would not win awards and garner front page news (as [Greenfield’s] Hottest Mom did in the Wall Street Journal). I am not aware of other branded entertainment programs from this period that leveraged Greenfield’s approach.87 T]he HSTS campaign is noteworthy in many ways, none of which are the historical strengths of ad agencies. Further, the campaign that Greenfield contributed to EP and VZW was not characteristic of the work that EP was doing for VZW at that time.88

The Trial Court erred in holding as a matter of law,89 that an existing show

called “Sunday’s Best” put Greenfield’s marketing plan in the public domain. In

fact, “Sunday Best” is not a gospel choir competition at all. It is a talent

competition among individuals, that bears little resemblance to HSTS except for its

gospel music theme.90

B. The Trial Court erred in finding insufficient effort, under the circumstances, to preserve secrecy pursuant to S.C. Code Ann. § 39-8-20(5)(a)(ii).

Contrary to Appellees’ claim, Greenfield never said that all of his trade

secrets were disclosed in the April presentation to VZW.91 In fact, numerous

87 JA-1420 (Fournier Expert Witness Report). 88 JA-1424 (Fournier Expert Witness Report). 89 JA-166; JA-184 to JA-185 (Tr. Ct. Ops.) 90 Compare http://www2.howsweetthesound.com/contest/overview to http://www.bet.com/OnTV/BETShows/sundaybest/default 91 JA-743 (Gf. Dep. 65:16-19).


27

components of the overall HSTS marketing strategy, were not revealed in the April

26, 2006 presentation slides.92

Appellees overlook the April 25, 2006 draft of the presentation, the last one

to leave Greenfield’s desk for EP’s final edits on April 25, 2006 at 3:28 p.m.93

That draft included language insisting upon full confidentiality at the bottom of

every page as follows94:

Confidential and proprietary material for authorized Verizon Wireless personnel only. Use, disclosure, or distribution of this material is not permitted by any unauthorized persons or third parties except by written agreement.

As to the alleged presence of “numerous third parties” at the April 26, 2006

meeting with VZW,95 Greenfield’s testimony was that representatives of two of

VZW’s existing contractors, Global Hue and Zenith, “may have been there.”96

92 See JA-1575 (Erwin summary of key points discussed); compare JA-1695– JA-1699 (pre-presentation speaking assignments). 93 JA-1060 to JA-1064 (Greenfield slide updates, 4/25/2006). 94 JA-1695 through JA-1699 (preliminary slides with speaking assignments, showing disclosure notice); JA-1061 to JA-1064 (slides Greenfield provided EP, showing disclosure notice). 95 Opp. Br. at 32, fn. 21. 96 JA-791:1 to JA-793:2 (Gf. Dep. at 166:1 to 168:2); JA-417 (VZW’s Lou Rossi came from Zenith); JA-420 (Global Hue was VZW’s “agency for multi-cultural advertising.”); JA-495 (showing Global Hue, Zenith roles in HSTS); JA-1230 (showing Global Hue, Zenith compensation for work on HSTS).


28

This Court should follow Judge Posner’s view that “only in an extreme case

can what is a “reasonable” precaution [to protect secrecy] be determined on a

motion for summary judgment.” Rockwell Graphic Systems, Inc. v. DEV

Industries, Inc., 925 F.2d 174, 179 (7th Cir. 1991).

V. TRADEMARK CANCELLATION

Citing 15 U.S.C. § 1051(a)(3)(D),97 Appellees claim that an applicant

seeking to register a mark with the USPTO is only required to state under oath that

to the best of the verifier’s knowledge and belief, no one else has a superior right

to use the mark.98 However, 15 U.S.C. § 1051(a)(3)(D)(ii)(I) also requires an

applicant to “…specify to the extent of the verifier’s knowledge any concurrent

use by others.” (Emphasis added.) The following facts clearly show Greenfield’s

“concurrent use” and EP’s knowledge thereof:

1. Greenfield e-mail to EP: “I have officially registered ‘How Sweet the

Sound’ with the WGA under both myself and Joe’s name” with attached copy of

Registration Confirmation.99

97 Attached hereto at pps.14-26 of Addendum. 98 Opp. Br. at 33. 99 JA-1518 to JA-1521.


29

2. Greenfield Affidavit: “…at no time did Joe Erwin, Erwin-Penland, or

anyone at Erwin-Penland, object to my registration of ‘How Sweet the Sound’ with

the Writer’s Guild.”100

3. Greenfield-EP jointly presented HSTS, including its graphics, to

VZW on April 26, 2006, thereby introducing it into the stream of commerce. In

that presentation, the “HSTS Team” is described in the ‘deck’ as consisting of EP

and 1st Approach (Greenfield),101 and it showed joint authorship in the form of a

copyright notice, with both EP and 1st Approach (Greenfield) shown as copyright

holders. The presentation materials included the HSTS mark showing birds in

flight with outspread wings (subsequently assigned Mark No. 77203814).102

HSTS, and its graphics, would later form the basis of EP’s trademark

application.103 Greenfield-EP also introduced into commerce “How Sweet the

Sound,” which was subsequently assigned No. 77203718 by the USPTO).104

100 JA-1319 at ¶ 8. 101 JA-1193. 102 JA-1544. 103 JA-1186 to JA-1220. 104 JA-1551 – JA-1552.


30

4. The same marks were again presented to VZW on June 19, 2006,105 and

the entire presentation was copyrighted to both EP and 1st Approach (Greenfield).

6. Greenfield’s Affidavit: “In early 2007, and following my statement

that I wanted to “…take the [HSTS] program to other clients,” Erwin-Penland

stopped responding to my numerous requests for status reports on “How Sweet the

Sound” [regarding VZW’s acceptance or lack thereof] which I sent to EP on

January 26, [2007], March 29 [2007], and July 26, 2007.”106

5. On February 12, 2007, after EP learned that VZW would fund HSTS,107

and after EP had ceased responding to Greenfield’s communications,108 EP

submitted to the USPTO an edited version of the presentation deck without the

prior reference to 1st Approach (Greenfield). No. 77203814, see JA-1608. As to

No. 77203718, see JA-1609 – JA-1610. From these facts, it is clear that EP made

a conscious effort to “erase” all evidence of Greenfield’s involvement in HSTS in

its subsequent trademark applications.

105 (JA-1523) and (JA-1525 – JA-1526), respectively. 106 JA-1321 at ¶18. 107 JA-1606 to JA-1613. 108 JA-1603.


31

7. EP’s Alford e-mail to Bosworth (May 4, 2007): “Andy [Mendelsohn]

mentioned we made (sic) need to check [with Greenfield] because he [Greenfield]

owns part of the idea.”109

8. Bosworth to Erwin (May 4, 2007): “What’s your opinion of this” (the

Alford query).110

9. Erwin’s reply: (May 9, 2007): “I think we should talk about it, and

likely call Jeff [Greenfield]. This is about 50% his idea and he comes from a world

in which “intellectual property” is a very big thing.”111

10. EP’s Carter to Bosworth (May 11, 2007): “… any issue with the

original producer partners … Greenfield …?” Also, “…can we trademark How

Sweet the Sound – or is this ‘owned’ by someone other than EP/VZW?”112

11. Greenfield affidavit: “I was not consulted by EP in its trademark and

domain name registrations of “How Sweet the Sound,” and I did not approve of

such registrations.113

109 JA-1098. 110 JA-1099. 111 JA-1098. 112 JA-1099. 113 JA-1322 at ¶ 26.


32

The Trial Court should have denied summary judgment on the ground that

the non-moving party, Greenfield, had produced sufficient evidence from which a

jury could reasonably find that Erwin and EP were fully aware Greenfield had

made concurrent use of HSTS in commerce in tandem with EP. 15 U.S.C.

§ 1051(a)(3)(D)(ii)(I); Angel Flight of Georgia, Inc. v. Angel Flight America, Inc.,

522 F.3d 1200 (11th Cir. 2008) (canceling registration on the ground of fraud

where others with an equal right to use were knowingly left undisclosed).

Greenfield’s evidence supports the inference, made in a light most favorable

to him, that there was no “mere error or inadvertence, but … a deliberate attempt to

mislead the [USPTO].” Orient Express Trading Co. Ltd. v. Federated Dept.

Stores, Inc., 842 F.2d 650, 653 (2d Cir. 1988)

In dismissing Greenfield’s trademark cancellation claim, the Trial Court

stated that Greenfield’s argument arises from his allegation that he co-owned or

co-created the HSTS concept, and that this argument fails because trademark rights

are “…not based on creativity, but on use in commerce.”114 This reasoning is

faulty since co-ownership and/or co-creation gives one the right to use a mark in

commerce. Moreover, EP, at the time of its original application to the USPTO,

had made exactly the same use of HSTS in commerce as Greenfield, since both

114 JA-201.


33

had received protection of the mark through Greenfield’s WGA Registration;115

both presented HSTS to VZW as the “HSTS Team” on April 26, 2006;116 and both

jointly refined HSTS for VZW on June 19, 2006.117 Because of the Trial Court’s

errors, the trademark cancellation claim should be remanded for further

proceedings.

CONCLUSION

For the reasons set forth herein, this Court should remand the case to the

District Court for a jury trial on Appellants’ claims in regards to trade secret,

trademark cancellation, fiduciary duty and good faith obligations, express or

implied-in-fact contract, and quantum meruit / unjust enrichment. Because this is a

case of first impression in this Circuit oral argument should be heard.

115 JA-1518 to JA-1521. 116 JA-1186 to JA-1220. 117 JA-1343; JA-1522 to JA-1541.


34

Respectfully submitted, The Law Office of P. Jeffrey North LLC By: /s Phillip Jeffrey North, Esq. Attorney ID #9885 P.O. Box 7525 Hilton Head SC 29938 Phone: (843) 341-5200 Fax: (888) 487-7624 Email: [email protected]

October 4, 2010 Hilton Head, SC


ADDENDUM


ADDENDUM TABLE OF CONTENTS

Page

II George H. Palmer, The Law of Restitution § 10.11 (1978 & Supp. 2010)................................................................................... Add. 1-11 S.C. Code § 39-8-20(5)(a)-(b) .................................................................. Add. 12-13 15 U.S.C. § 1051(a)(3)(D) and 15 U.S.C. § 1051(a)(3)(D)(ii)(I)............. Add. 14-26


Add.1


Add.2


Add.3


Add.4


Add.5


Add.6


Add.7


Add.8


Add.9


Add.10


Add.11


Add.12


Add.13


Add.14


Add.15


Add.16


Add.17


Add.18


Add.19


Add.20


Add.21


Add.22


Add.23


Add.24


Add.25


Add.26


CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P.

28.1(e)(2) or 32(a)(7)(B) because:

[ X ] this brief contains 6,776 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[ X ] this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2000 in 14pt Times New Roman; or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].

Dated: October 4, 2010 /s/ P. Jeffrey North Counsel for Appellants


CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 4th day of October, 2010, I caused this Reply

Brief of Appellants to be filed electronically with the Clerk of the Court using the

CM/ECF System, which will send notice of such filing to the following registered

CM/ECF users:

Brenda R. Sharton David M. Chromy GOODWIN PROCTOR Elizabeth M. Zwickert Timmermans Exchange Place MCGUIREWOODS, LLP 53 State Street Bank of America Corporate Center Boston, Massachusetts 02109 100 North Tryon Street, Suite 2900 (617) 570-1214 Charlotte, North Carolina 28202

(704) 343-2093

Counsel for Plaintiff – Appellee and Counsel for Third Party Counsel for Third Party Defendant – Defendants – Appellees Cellco Appellee Erwin

Bernie W. Ellis Robert A. Muckenfuss Rita M. McKinney MCGUIRE WOODS, LLP MCNAIR LAW FIRM, PA 201 North Tryon Street 101 North Main Street, Suite 900 Post Office Box 31247 Greenville, South Carolina 29601 Charlotte, North Carolina 28231 (864) 271-4940 (704) 343-2052

Counsel for Plaintiff – Appellee and Counsel for Third Party Third Party Defendant – Defendant – Appellee Cellco Appellee Erwin


I further certify that on this 4th day of October, 2010, I caused the required

number of bound copies of the foregoing Reply Brief of Appellants to be hand-

filed with the Clerk of this Court.

/s/ P. Jeffrey North Counsel for Appellants


2010-10-04REPLY(FILED)

Documents

trial court

approach llc

united states district

party defendants appellees

service i case

jeffrey greenfield

rdparty plaintiffs appellants

district of south carolina