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9/29/2010
Second Photo Ticketing Trial Receives Court Date
Second federal court case pitting Redflex against ATS receives 2011 court date.

Randy J. McClanahan
The two largest photo enforcement companies in the US on Monday tentatively agreed to fight it out for a second time before a jury in a federal courtroom in December 2011. Lawyers for Redflex Traffic Systems and American Traffic Solutions (ATS) held a pre-trial conference to lay out the ground rules and timing for the case that the Australian company, Redflex, brought against its US-based rival for claiming its products were "made in the USA" when the company's cameras are manufactured by Nikon in Japan. In May, ATS had sued Redflex and lost in a case that made claims under the same statute.

"The issue there was Lanham Act false advertising," ATS lawyer Randy J. McClanahan said Monday. "Frankly, we believe that Redflex brought this as a retaliatory case."

US District Court Judge Susan R. Bolton was surprised at how much time the attorneys involved were asking to prepare for trial. Redflex also wants to get its hands on documents belonging to its main marketplace competitor.

"We were hired two weeks ago and we're still getting our arms around it, and more importantly, there's going to need to be a discussion between counsel about what use if any can be made of confidential documents that were disclosed in the other matter that came before Judge Martone," Redflex lawyer Daniel Dowd explained regarding the delay. "Much of that material is subject to a confidentiality order in that case. We think a lot of the discovery that took place is relevant to the issues in this case and rather than recreate the wheel, we'd like to get access to those materials but under the terms of the existing protective order, I don't think that we can."

Judge Bolton picked up on the acrimonious nature of the legal battle and suggested that the parties seek a professional mediator to work out their problems, but she said that she could not require them to do so. In the case before Judge Martone, Redflex has revised its request for attorneys' fees from $3,753,687 to $3,055,770, reflecting 12,438 hours of legal work claimed. Redflex argues that court precedent requires any party that brings a vexatious case to pay the winning side's legal fees and that it should be awarded this money because it is a victim.

"Nor does ATS' fanciful presentation of the record, which attempts to cast Redflex as the antagonist in this debacle, rather than as the victim of what was nothing less than an anticompetitive initiative to bring Redflex to its knees, to dispossess it of its contracts and customers, and to destroy its reputation in the marketplace, lend support to ATS' position that fee-shifting is unwarranted here," Redflex lawyer Robert A. Mandel wrote in a September 2 filing. "In the end, ATS made no genuine effort to present a false advertising case to the jury. Instead, ATS wagered that the jury, if sufficiently incensed about Redflex's purported use of mobile radar that lacked FCC-approval, would gloss over the dearth of evidence proffered to substantiate the legal elements of its purported false advertising claims and render a windfall damages award against Redflex merely as punishment for its alleged use of 'illegal radar.'"

Redflex went so far as to introduce as evidence statements that ATS General Counsel George Hittner made to Redflex General Counsel Adrejs Bunkse in a private conversation. Hittner allegedly said the company "always knew" it would lose its claim for a number of cities involved in the case. Hittner insists that he was misquoted. The companies now must prepare for the initial disclosure phase of the trial.



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