Floorgraphics Inc. v. News America Marketing In-Store Services, Inc., 042011 FED3, 10-2721

Docket Nº:10-2721
Opinion Judge:SMITH, Circuit Judge.
Party Name:FLOORGRAPHICS INC., Appellant v. NEWS AMERICA MARKETING IN-STORE SERVICES, INC; NEWS AMERICA MARKETING IN-STORE INC.
Attorney:Thomas S. Biemer, Esq. (argued), Laura E. Vendzules, Esq., Dilworth Paxson., William Isaacson, Esq., Boies, Schiller & Flexner. Counsel for Appellant. Lee N. Abrams, Esq. (argued) James C. Schroeder, Esq., Kristin W. Silverman, Esq., Mayer Brown, Steven P. Goodell, Esq. Herbert, Van Ness, Cayci &...
Judge Panel:Before: FUENTES, SMITH, and GREENBERG, Circuit Judges.
Case Date:April 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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FLOORGRAPHICS INC., Appellant

v.

NEWS AMERICA MARKETING IN-STORE SERVICES, INC; NEWS AMERICA MARKETING IN-STORE INC.

No. 10-2721

United States Court of Appeals, Third Circuit

April 20, 2011

NOT PRECEDENTIAL

Argued March 24, 2011

On Appeal from the United States District Court for the District of New Jersey District Court No. 3-04-cv-03500 Senior District Judge: The Honorable Anne E. Thompson.

Thomas S. Biemer, Esq. (argued), Laura E. Vendzules, Esq., Dilworth Paxson., William Isaacson, Esq., Boies, Schiller & Flexner. Counsel for Appellant.

Lee N. Abrams, Esq. (argued) James C. Schroeder, Esq., Kristin W. Silverman, Esq., Mayer Brown, Steven P. Goodell, Esq. Herbert, Van Ness, Cayci & Goodell Diane Green-Kelly, Esq. Reed Smith Counsel for Appellees.

Before: FUENTES, SMITH, and GREENBERG, Circuit Judges.

OPINION

SMITH, Circuit Judge.

In 2004, Floorgraphics, Inc. (FGI), a company that "pioneered the use of floor advertising in retail grocery stores, " filed suit against, inter alia, News America Marketing In-Store Services, Inc., and News America Marketing In-Store, Inc. (collectively News). FGI asserted federal claims under the Computer Fraud & Abuse Act and the Lanham Act, as well as ten state law claims alleging that News had engaged in unfair competition. After protracted discovery and the denial of cross-motions for summary judgment, a jury trial commenced on March 3, 2009, before United States District Judge Anne Thompson. On March 10, in the midst of trial, the parties settled the case and the jury was discharged. The parties executed a Mutual Release. Although the Mutual Release did not provide for an exchange of consideration, it did reference the fact that the parties were contemporaneously executing an Asset Purchase Agreement, Goodwill Purchase Agreements with the majority stockholders, Non-Compete and Non-Solicitation Agreements, as well as Consulting Agreements. Pursuant to the terms of these agreements, FGI, its principals and its majority shareholders received a total of $29.5 million.

On March 9, 2010, a day shy of the one year anniversary of FGI's settlement with News, FGI filed a motion seeking relief from judgment under Federal Rule of Civil Procedure 60(b)(2), (3), and (6). FGI filed the motion "because it ha[d] recently learned of a substantial body of evidence that was produced by [News] in separate litigation, [i.e., the federal antitrust action of Valassis Communications, Inc. v. News America, Inc., No. 06-10240 (E.D. Mich.)], which appears critically important to FGI's claims and should have been – but was not – produced in this matter." It cited a number of video recordings of meetings of News' executives, which pertained to News' competition with FGI and other companies in the advertising market for consumer goods. FGI also explained that it had discovered that "budget books, " which it had requested during...

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