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Case 1:05-cv-21113-EGT Document 517 Entered on FLSD Docket 10/31/07 20:24:00 Page 1 of 63 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 05-21113-CIV-TORRES CONSENT CASE SLIP-N-SLIDE RECORDS, INC., Plaintiff, vs. TVT RECORDS, LLC, Defendant. _____________________________________/ TEEVEE TOONS, INC., Counterclaimant, vs. SLIP-N-SLIDE RECORDS, INC., et al., Counter-Defendants. _____________________________________/ ORDER ON DEFENDANT TEEVEE TOONS, INC.’S MOTION FOR A NEW TRIAL OR REMITTITUR This matter is before the Court on Defendant Teevee Toons, Inc.’s (“TVT”) Motion for a New Trial or Remittitur [D.E. 452], Plaintiff Slip-N-Slide Records, Inc. (“SNS”) Response in opposition thereto [D.E. 471], and TVT’s Reply thereto [D.E. 487]. After due consideration of the motion and related filings, the Court will grant in part and deny in part TVT’s motion for a new trial and alternative motion for remittitur, for the reasons discussed below. Case 1:05-cv-21113-EGT Document 517 Entered on FLSD Docket 10/31/07 20:24:00 Page 2 of 63 I. BACKGROUND SNS sued TVT for tortious interference, declaratory relief, and temporary and permanent injunctive relief in connection with the sale, marketing, and distribution of an album entitled “Welcome to the 305” (“305 Album”) that contained musical recordings by rap artist Armando Perez (“Perez”), known professionally as “Pitbull.” TVT counterclaimed against SNS, Rudebwoy Entertainment (“Rudebwoy”), 305 Music (“305 Music”), and individuals Allen Waserstein (“Waserstein”), Robert Henderson (“Henderson”), and Theodore Lucas (“Lucas”) for trademark infringement and Lanham Act claims under 15 U.S.C. 1125(a) in connection with TVT’s “Pitbull” mark and logo. After a two-week jury trial, the jury returned a verdict for SNS on the tortious interference claims. See Special Verdict Form [D.E. 430]. Specifically, the jury determined that: • TVT intentionally and unjustifiably interfered with SNS’s contract with Alternative Distribution Alliance, Inc. (“ADA”) that was known to TVT, and TVT intentionally and unjustifiably interfered with SNS’s business relationship with ADA and ADA’s retailers; • TVT acted partly out of malice and also through improper methods; • TVT’s interference was the cause of damages to SNS; • SNS suffered compensatory damages in the gross amount of $2,279,200.00; • SNS did not fail to mitigate damages; • TVT engaged in intentional misconduct or gross negligence in interfering with SNS’s contract with ADA or with SNS’s business relationships with ADA and ADA’s retailers; and • a total amount of $6,837,600.00 in punitive damages was awarded to SNS against TVT. Case 1:05-cv-21113-EGT Document 517 Entered on FLSD Docket 10/31/07 20:24:00 Page 3 of 63 The jury also rejected TVT’s counterclaims for trademark infringement of TVT’s stylized “Pitbull” logo and false advertising. TVT has moved for a new trial pursuant to Federal Rule of Civil Procedure 59(e), claiming that the evidence adduced at trial does not support the jury’s findings on either liability or damages. TVT also asserts that this Court abused its discretion with regard to many of the evidentiary rulings made before and during trial, as well as with regard to certain jury instructions and the verdict form. In the alternative, TVT seeks a remittitur of the damage awards on the grounds that both the compensatory and punitive damages awards are unsupported by the record and punitive in nature. II. ANALYSIS A. Standard of Review for Motion for New Trial under Rule 59 Rule 59 does not enumerate all the grounds for a new trial but speaks instead in broad terms. 11 Wright & Miller, Federal Practice and Procedure § 2805 (2d ed. 1995). Pursuant to Rule 59(a), “[a] new trial may be granted to all or any of the parties and on all or part of the issues . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. .” See, e.g., George v. GTE Directories Corp., 195 F.R.D. 696, 701 (M.D. Fla. 2000) (new trial may be granted “for any reason recognized at common law, even where there is substantial evidence supporting the verdict.”). A party may seek a new trial by arguing that “the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940); see also Weisgram v. Marley Co., 528 U.S. 440, 452 (2000). However, a motion brought pursuant to Rule 59 may not “relitigate old Case 1:05-cv-21113-EGT Document 517 Entered on FLSD Docket 10/31/07 20:24:00 Page 4 of 63 matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005) (motion to amend or alter judgment was essentially a motion to reconsider the district court’s prior summary judgment order). The decision to alter or amend a judgment is committed to the sound discretion of the trial judge. E.g., American Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985). When ruling on a Rule 59(e) motion for new trial, the judge must determine “if in his opinion, ‘the verdict is against the clear weight of the evidence . or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.’” Insurance Co. of N. America v. Valente, 933 F.2d 921, 922-23 (11th Cir. 1991) (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)). “[T]o assure that the judge does not simply substitute his judgment for that of the jury, . we have noted that new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great – not merely the greater – weight of the evidence.” Id. at 923 (quoting Hewitt). “The trial judge’s discretion to set aside a jury verdict based on the great weight of the evidence is very narrow.” Hewitt, 732 F.2d at 1559. The judge must protect against manifest injustice in the jury’s verdict, but it is not his role to assess credibility where conflicting testimony has been presented during the trial. Id. at 1558-59. Instead, the judge must defer to the jury on the weight to be given to each witness’s testimony. Id. at 1558-59. B. Liability for Tortious Interference The jury found that TVT tortiously interfered with SNS’s advantageous business relationship with ADA, the intended distributor of the 305 Album, as well as SNS’s contractual relationship with ADA. TVT contends that the jury’s finding of liability on these claims is against the great weight of the evidence. Case 1:05-cv-21113-EGT Document 517 Entered on FLSD Docket 10/31/07 20:24:00 Page 5 of 63 To prevail on its tortious interference claims at trial, SNS was required to prove (1) the existence of a business relationship with ADA; (2) TVT’s knowledge of the relationship; (3) TVT intentionally and unjustifiably interfered with the relationship; and (4) that SNS suffered damages as a result. Gossard v. Adia Serve., Inc., 723 So. 2d 182, 184 (Fla. 1998); KMS Rest. Corp. v. Wendy’s Int’l, Inc. 361 F.3d 1321, 1325 (11th Cir. 2004). 1. Malice The jury determined that TVT intentionally and unjustifiably interfered with SNS’s relationship with ADA, acting partly with malice and through improper methods, when Jacqueline Sussman, Esq., TVT’s Executive Vice President in charge of legal and business affairs, sent the March 28, 2005, Cease and Desist (“C&D”) letters to ADA and its retailers. See Special Verdict Form 1b. [D.E. 430 at 2]. Those letters threatened litigation against the recipients if SNS released and distributed the 305 Album. TVT argues that the evidence does not support a finding of malice. Malice may be shown indirectly “by proving a series of acts which, in their context or in light of the totality of the circumstances, are inconsistent with the premise of a reasonable man pursuing a lawful objective, but rather indicate a plan or course of conduct motivated by spite, ill-will or other bad motive.” Gregg v. U.S. Indus., Inc., 887 F.2d 1462, 1476 (11th Cir. 1989); see also McCurdy v. Collis, 508 So. 2d 380, 382 (Fla. 1st DCA 1987) (citing Southern Bell Tel. & Tel. Co. v. Roper, 482 So. 2d 538, 539 (Fla. 3d DCA 1986)). Here, TVT posits that the evidence does not suggest malice; rather, it shows that TVT had a good-faith basis to send the C&D letters, given its reasonable belief that SNS was competing with its contractual grant of exclusivity to Pitbull’s recordings without legal authority, and that SNS was engaged in false advertising. TVT points to the testimony of its president, Steve Gottlieb, who stated that TVT conducted an investigation Case 1:05-cv-21113-EGT Document 517 Entered on FLSD Docket 10/31/07 20:24:00 Page 6 of 63 into SNS’s legal rights to release the 305 Album and determined, among other things, that SNS had no right to release at least 6 of the 16 tracks on the 305 Album.

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