Coldwell Banker Sues Windermere Services Southern California for Lanham Act Trade Dress Infringement, Common Law Trade Dress Infringement, and Common Law Unfair Competition in Federal Complaint Alleging:
"23. On or about March 2013, Windermere's Counsel indicated that Windermere would take immediate steps to change the formatting of its WINDERMERE@HOME magazine to alleviate Coldwell. Banker's concerns of trade dress infringement.
24. As of the filing of this Complaint, Windermere has not taken any steps to change the formatting of its WINDERMERE@HOME magazine and continues to incorporate the VIEW Trade Dress in the WINDERMERE@H0ME magazine."
11/13/2013: Notice of Voluntary Dismissal without prejudice filed by Plaintiff Coldwell Banker Residential Brokerage Company.
More Windermere Copyright and Lanham Act Trademark Infringment cases:
Similar lawsuit from another Windermere competitor: U.S.DISTRICT COURT—NO. SACV10-01589 JVS (ex): JOSEPH R. DEVILLE, BOB BENNION, BENNION & DEVILLE FINE HOMES [WINDERMERE COACHELLA VALLEY], A&L PARTNERS, ANDREA MARQUEZ, SUED FOR TRADEMARK INFRINGEMENT
Similar lawsuit: U.S. DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE—CIVIL ACTION NO. 12-cv-271: WINDERMERE REAL ESTATE COMPANY AND SEATTLE-WEDGWOOD BROKER, CARISSA TURBAK [SAFFEL], SUED FOR COPYRIGHT INFRINGEMENT, FALSE DESIGNATION OF ORIGIN AND UNFAIR COMPETITION—VIOLATION OF THE LANHAM ACT—BY FINITO SERVICES LLC, DBA SUNSPOT INNS, RESORTS & VACATION RENTALS
Similar lawsuit: U.S. DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA—NO. CV-05401: WINDERMERE REAL ESTATE BAINBRIDGE ISLAND AND ASSOCIATE BROKER DEBBIE NITSCHE SUED FOR COPYRIGHT INFRINGEMENT, VIOLATION OF THE LANHAM ACT, AND UNFAIR COMPETITION.
DOWNLOAD A PDF COPY OF THE COLDWELL BANKER COMPLAINT HERE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
COLDWELL BANKER RESIDENTIAL BROKERGAGE COMPANY, a California corporation.
Plaintiff,
vs.
WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., a California corporation.
Defendant.
CASE NO. EDCV13 - 01242 JGB (OPx)
COMPLAINT FOR:
(I) TRADE DRESS INFRINGEMENT UNDER §43(a) OF THE LANHAM ACT 15 U.S.C. § 1125(a);
(II) COMMON LAW TRADE DRESS INFRINGEMENT; and
(II) COMMONLAW UNFAIR COMPETITION
DEMAND FOR JURY TRIAL (Rule 38(b) F.R.Civ.P)
Plaintiff Coldwell Banker Residential Brokerage Company ("Coldwell Banker") alleges as fiollows:
1. This action arises from Windermere Services Southern California, Inc.'s ("Windermere") recent publication of its WINDERMERE@HOME magazine that is likely to deceive consumers and dilute the quality of Coldwell Banker's well known and distinctive VIEW magazine. By copying the VIEW's trade dress distinctive style, flip book formatting and blue color scheme, Windermere is infringing Coldwell Banker's Federal trade dress rights and is violating California laws relating to trade dress infringement and unfair competition.
JURISDICTION AND VENUE
2. This Court has original subject matter jurisdiction over the Federal law claim under the trademark laws of the "United States, 15 U.S.C. §§1 et seq including under § 39 of the Federal Trademark Act, 15 U.S.C. § 1051 and 112 1. This Court has subject matter jurisdiction of Claim 1 pursuant to 28 U.S.C. § 1331 and 1338(a).
3. The Court has supplemental jurisdiction over the state law Claims 2 and 3 pursuant to 28 U.S.C. § 1367(a) because the state law claims are so related to the Federal claims that they form part of the same controversy and derive from a common nucleus of operative facts.
4. Plaintiff Coldwell Banker Residential Brokerage Company is a California corporation doing business throughout California and in this District.
5. Windermere Services Southern California, Inc.'s ("Windermere") is a California corporation having its principal place of business in Rancho Mirage, California,
6. Windermere has significant contacts with the State of California and this District and its activities within the State of California and this District and the effects of its activities with the State of California and this District are such that this Court may exercise personal jurisdiction over Windermere consistently with the Constitution of the State of California and the Constitution of the United States.
7. A substantial part of the events giving rise to the claims which are the subject matter of this action occurred in this District. Further, Windermere is a corporation subject to personal jurisdiction in this District. The venue of this action is properly laid in this District pursuant to Title 28 United States Code Section 1391(b) and (c).
GENERAL ALLEGATIONS
COLDWELL BANKER'S VIEW TRADE DRESS
8. Through its predecessors, Coldwell Banker was founded in 1906 to provide real estate brokerage services. Today, Coldwell Banker is one of the largest real estate brokerage companies in the world. Presently, Coldwell Banker has locations in all fifty states, and international expansion has resulted in offices on six (6) continents and in forty-six (46) countries. With its related companies Coldwell Banker Commercial, Century 21, ERA, Sothebys International Realty, and Better Homes and Gardens Real Estate, it is estimated that Coldwell Banker combines to participate in one of every four residential real estate transactions in the United States.
9. In 2005, Coldwell Banker became the first full-service national real estate brand to launch a stand-alone website for upscale properties with www.coldwellbankerpreviews.com. In 2007, Coldwell Banker launched its VIEW magazine which is focused on advertising upscale properties for sale.
10. The VIEW magazine was designed to include unique and stylish features including: 1) a flip-book construction wherein the pages of the back half of the book are flipped vertically to provide a magazine with two front covers; 2) the flip book construction providing a first half of the magazine dedicated to advertising residences from a first location (such as coastal real estate) and the flipped second half of the magazine dedicated to advertising residences from a second location (such as desert region real estate); 3) employing a consistent but different color scheme for each of the two respective covers (including blue for coastal real estate and mustard yellow for desert real estate); 4) employing a predominantly blue color scheme throughout the interior of the magazine to incorporate the blue hue commonly used by Coldwell Banker oil its other advertising; 5) consistently employing blue highlights at the top and bottom of the magazine pages including blue horizontal bands at the bottom of the pages; and 6) unusual dimensions of approximately 10 ½ inches by 11 3/8 inches. A copy of a recent VIEW magazine is attached as Exhibit 1.
11. The overall design and appearance of the VIEW magazine is inherently distinctive and non-functional and serves as an indicator of origin for Coldwell Banker ("VIEW Trade Dress").
12. The VIEW magazine is distributed throughout Southern California, Arizona and in the cities of Beijing, China and Shanghai China through local newspapers including Los Angeles Times, The Orange County Register, The Desert Sun, and The Wall Street Journal. Almost 16 million copies of the VIEW magazine were distributed in 2012. Coldwell Banker has spent more than $4,000,000.00 distributing the VIEW magazine.
13. As a result of Coldwell Banker's wide-spread distribution of its VIEW magazine, the VIEW Trade Dress is well recognized by consumers, and has acquired secondary meaning as an indicator of origin for Coldwell Banker. The VIEW magazine has come to proclaim, represent and symbolize the outstanding quality of Coldwell Banker's services and enjoys substantial goodwill among consumers.
14. Coldwell Banker has diligently enforced its VIEW Trade Dress against competitors who attempt to use confusingly similar designs and formatting for a real estate magazine. Coldwell Banker's policing efforts are necessary to ensure that its VIEW Trade Dress remains unique and highly distinctive and not copied and diluted by competitors.
15. ln approximately the end of 2012 or the beginning of 2013, Windermere launched its WINDERMERE@HOME magazine.
16. The WINDERMERE@HOME magazine includes each of the unique and stylish features of the VIEW magazine including: 1) a flip-book construction wherein the pages of the back half of the book are flipped vertically to provide a magazine with two front covers; 2) the flip book construction providing a first half of the magazine dedicated to advertising residences from a first location (such as coastal real estate) and the flipped second half of the magazine dedicated to advertising residences from a second location (such as desert region real estate); 3) employing a consistent but different color scheme for each of the two respective covers; 4) employing a predominantly blue color scheme throughout the interior of the magazine; 5) consistently employing blue highlights at the top and bottom of the magazine pages including blue horizontal bands at the bottom of the pages; and 6) unusual dimensions of approximately 10 ½ inches by 11 3/8 inches. A copy of a recent WINDERMERE@HOME magazine is attached as Exhibit 2.
17. The WINDERMERE@HOME magazine, to the ordinary observer, looks like, and is likely to be mistaken for, the VIEW magazine.
18. Windermere distributes its WINDERMERE@HOME magazine in the same marketing channels, namely the same Southern California newspapers, as Coldwell Banker distributes its VIEW magazine.
19. Coldwell Banker is informed and believes that Windermere designed its WINDERMERE@HOME magazine with knowledge of the VIEW Trade Dress and with intent to copy such VIEW Trade Dress and obtain consumer recognition and interest based upon the success and reputation of Coldwell Banker.
20. Windermere's distribution of its WNDEEMERE@HOME magazine incorporating the VIEW Trade Dress is likely to cause initial interest confusion, mistake and/or deception to customers and potential customers of Coldwell Banker that the WINDERMERE@HOME magazine originates from the maker of the VIEW magazine, or that the maker of the WINDERMERE@HOME magazine is affiliated with the permission of, or approved, sponsored, or licensed by the maker of the VIEW magazine.
21. Windermere's distribution of its WINDERMERE@HOME magazine trades on the goodwill Coldwell Banker has established in the VIEW Trade Dress, and places the valuable reputation of Coldwell Banker in the hands of a third party over whom Coldwell Banker has no control.
22. On or about February 2013, Coldwell Banker's counsel notified Windermere that its use of the VIEW trade dress, in the same industry, in the same advertising channels, distributed to the same consumers was likely to cause customer confusion, and thus trade dress infringement, false representation and dilution under the Federal Lanham Act, Title 15 U.S.C. §§ 1125 et seq, as well as injuries to business reputation and unfair competition under various California state and business professional codes,
23. On or about March 2013, Windermere's Counsel indicated that Windermere would take immediate steps to change the formatting of its WINDERMERE@HOME magazine to alleviate Coldwell. Banker's concerns of trade dress infringement.
24. As of the filing of this Complaint, Windermere has not taken any steps to change the formatting of its WINDERMERE@HOME magazine and continues to incorporate the VIEW Trade Dress in the WINDERMERE@H0ME magazine
FIRST CAUSE OF ACTION
TRADE DRESS INFRINGEMENT UNDER THE LANHAM ACT
(15 U.S.C. §§ 1125 et seq)
25. Coldwell Banker realleges paragraphs 1 through 24, inclusive, and incorporates them by reference as though specifically referenced to herein.
26. Windermere's conduct described above constitutes trade dress infringement of the VIEW Trade Dress and unfair competition in violation of § 43(a) of the Federal Trademark Act, 1.5 U.S.C. § 1125.
27. Coldwell Banker is informed and believes that Windermere's infringement of the VIEW Trade Dress has been willful.
28. Coldwell Banker has been and will continue to be irreparably harmed and damaged by Windermere's conduct, and Coldwell Banker lacks an adequate remedy at law to compensate for this harm and damage.
SECOND CAUSE OF ACTION
COMMON LAW TRADE DRESS INFRINGEMENT
(Under the Lanham Act § 43(a), 15 U.S.C~ § I 125(a)
29. Coldwell Banker realleges paragraphs 1 through 28, inclusive, and incorporates them by reference as though specifically referred to herein.
30. Windermere's conduct and acts described above trades upon goodwill established by Coldwell Banker in the VIEW Trade Dress and constitutes trade dress in violation of the common law of the State of California.
31. Coldwell Banker is informed and believes that Windermere's infringement of the VIEW Trade Dress has been willful.
32. Windermere's aforesaid trade dress infringement will continue until enjoined by this Court.
33. Windermere has greatly profited from their aforesaid trade dress infringement in the State of California, in this District, and elsewhere and has been unjustly enriched.
34. Coldwell Banker has been and will continue to be irreparably harmed and damaged by Windermere's conduct, and Coldwell Banker lacks an adequate remedy at law to compensate for this harm and damage.
THIRD CAUSE OF ACTION
COMMON LAW UNFAIR COMPETITION
35. Coldwell Banker realleges paragraphs 1 through 34, inclusive, and incorporates them by reference as though specifically referred to herein.
36. Windermere's conduct and acts described above trades upon goodwill established by Coldwell Banker in the VIEW Trade Dress and constitutes unfair competition in violation of the common law of the State of California.
37. Coldwell Banker is informed and believes that Windermere's acts of unfair competition has been willful.
38. Windermere's aforesaid unfair competition will continue until enjoined by this Court.
39. Windermere has greatly profited from their aforesaid unfair competition in the State of California, in this District, and elsewhere and has been unjustly enriched.
40. Coldwell Banker has been and will continue to be irreparably harmed and damaged by Windermere's conduct, and Coldwell Banker lacks an adequate remedy at law to compensate for this harm and damage.
PRAYER FOR RELIEF
WHEREFORE, Coldwell Banker respectfully prays that:
(1) For a temporary restraining order and a preliminary and permanent injunction, restraining Windermere, their agents, servants, employees and attorneys and those persons in active concert or participation with it from further acts of trade dress infringement, false designation of origin and unfair competition;
(2) For judgment against Windermere in the amount of Coldwell Banker's damages to the extent such damages can be ascertained;
(3) For punitive damages in a sum to be fixed by the Court, in consequence of Windermere's willful trade dress infringement, false designation of origin, and unfair competition, as aforesaid;
(4) For interest on all damages due hereunder at the legal rate from the time first allowed by law;
(5) For restitution of such profit and compensation derived by Windermere as a result of its unlawful, unfair and fraudulent practices;
(6) For its reasonable costs and attorney's fees herein incurred pursuant to 15 U.S.C. § 1117;
(7) For increased damages, costs, expert witness costs, and attorneys' fees to the extent permitted by law; and
(8) For such other and further relief as the Court shall deem just and proper in the premises.
Date: July 15, 2013 Respectfully submitted,
_________________________
David G. Duckworth
RUSSO & DUCKWORTH, LLP
Attorneys for Defendant
Coldwell Banker Residential Brokerage Company
RE/MAX Files Registration Statement for
Proposed Initial Public Offering
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Morgan Stanley, BofA Merrill Lynch and J.P. Morgan will act as joint bookrunning managers for the offering. Perella Weinberg Partners is acting as advisor to RE/MAX.
Copies of the preliminary prospectus relating to the offering may be obtained, when available, from Morgan Stanley, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014, or telephone: 1-866-718-1649, or email: prospectus@morganstanley.com; BofA Merrill Lynch, 222 Broadway, New York, NY 10038, Attn: Prospectus Department or email: dg.prospectus_requests@baml.com; or J.P. Morgan, Attention: Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, or telephone: 1-866-803-9204.
The registration statement relating to these securities has been filed with the SEC, but has not yet become effective. The registration statement had previously been submitted on a confidential basis under the Jumpstart Our Business Startups (JOBS) Act of 2012. These securities may not be sold, nor may offers be accepted, prior to the time the registration statement becomes effective. This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor may there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. The proposed offering will be made only by means of a prospectus.
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29 PALMS BAND OF MISSION INDIANS CASE (cont'd.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE—CASE NO. RIC10006101
DOWNLOAD A PDF COPY OF THE FULL BRIEF HERE
CLICK HERE TO PAGE ONE OF RESTITUTION BRIEF
March 12, 2007. (Ex. 46.) Kovall wrote back, "Looks good. I also need the name of your principal sub as I do not want Worth asking who "Cadmus" is ... " (Ex. 47.) Bardos forwarded the email to Heslop stating, "Alan, I am going to delay answering this email until after you have had a chance to meet with Gary and after the Tribal meeting today." (Id.)
One day later, on March 21, 2007, Kovall presented the Cadmus proposal to the Tribe which was approved and called for Cadmus to be paid more than $750,000 for the work. (SF ¶ 24, Ex. 46.) Later that afternoon, Bardos signed Laird's proposal effectively subcontracting the entire work for less than half of what Bardos charged the Tribe.10 The work Laird performed was less in scope than that proposed by the Worth Group. So, the Tribe ended up paying more money for less work.
The correspondence is insightful. First, it makes clear that Bardos directly discussed with Heslop his intention to charge the Tribe more than double the actual cost of the construction. Second, it confirms that all three defendants wanted to hide Bardos' involvement with Cadmus from the Worth Group. Third, the fact that Kovall at first wanted to disclose the name of the principal subcontractor for the project - Laird, but did not do so after his talk with Heslop, suggests that Heslop likely discussed the inflated mark-up of the contract price with Kovall as well, as they all would profit greatly and revealing the identity of the subcontractor could thwart their scheme. This correspondence further proves that Bardos was not simply an innocent cog in the scheme but a fully committed conspirator.
On April 26, 2007, the Tribe paid Cadmus the first installment of $517,105 for the temporary access road and parking lot. (SF ¶ 28.) On this same day, Kovall sent Heslop an email instructing Heslop to "send larger checks now." (Id.) On May 3, 2007, the Tribe paid Cadmus the second installment of $196,440. (Id.)
On May 4 and 9,2007, Bardos caused Cadmus to pay Heslop a total of approximately
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10 Bardos' mark-up prices of more than double the cost of construction are shocking and well outside of the market. In contrast to the grossly inflated prices Bardos charged the Tribe, the Worth Group's mark-up fee was always specified in each project and generally ranged from 5% to 6 %. (Worth FBI interview).
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$203,000. Heslop paid Shambaugh $80,000 on May 10 and $24,541 on May 23. (SF ~ 29.) On June 20, Shambaugh sent Heslop an email stating that she would "open the account today and deposit your check. Thanks Alan ... this is a very happy thing and Gary is delighted." (Id.,
Ex. 70.) Bardos thus paid Heslop approximately half of Cadmus' net profit on the temporary access road and parking lot even though Heslop and Bardos performed no real work.
F. The Cogeneration Oversight Scam ($410,000 + 154,208.89 (PI) = $564,208.89)
1. The Scheme
During the spring of 2007, Kovall, Heslop and Bardos saw an opportunity to convince the Tribe that it needed to install chiller/cogeneration systems in the existing casino and for Cadmus to "oversee" the work and receive a big payout. All three worked together to manipulate proposals submitted by the Worth Group (which they requested after they hatched the scheme) and to convince the Tribe that Cadmus' proposal was superior. Bardos, at Kovall's request, instructed Heslop to write up a proposal favoring Cadmus over Worth for the oversight work, which Kovall presented to the Tribe as his [Kovall's] own work product. Because of the scheme, Cadmus was able to secure the work at a grossly inflated price. Bardos, who did not have any expertise, did not do any actual work or have any additional expenses. He thus received a huge windfall for doing nothing, which he passed on to his co-conspirators.
On March 31, 2007, Bardos emailed Heslop that the Tribe was nearing a decision on whether to build a cogeneration and solar power plant adjacent to the casino and that he was in a position to coordinate these efforts:
I'm already ready in a position coordinating the several systems along with Worth Group ... and the question of charging the Tribe a percentage fee is timely now .... For instance, I can probably do the same on the permanent road as was done on the temporary road and parking lot playing off Worth's proposed costs without disclosing profits.
(Ex. 49 (emphasis added).)
A day later, Heslop responded as follows: "Paul: Yes, you raise all the important issues and espress [sic] the correct reservations about this deal. Attractive as the profit may be, it could jeopardize more important profits in the future. I think the answer may be to have Gary handle it in your absence. But let's think about it further and talk later this weekend. I'll give you a call. AH." (Id.)
The email chain demonstrates that Heslop and Bardos schemed over ways to make more money off the Tribe, discussed how Kovall could assist them, and plotted to manipulate the Worth Group proposals and hide their own profits from the Tribe. The correspondence also proves that the three, working together, had a big picture in mind and did not want to jeopardize bigger payouts by appearing too greedy too soon. Ironically, the ultimate proposal presented and approved by the Tribe, did in fact consist of a windfall on the cogeneration work on top of Bardos' monthly owners representative fee, which was doubled by September 2007.
A day later, on April 1 , Bardos again emailed Heslop highlighting reasons why the Tribe should undertake the chiller/ cogeneration work, noting that the Worth Group would stand to see $1.6 million in profits for overseeing the work and opining that Cadmus could do the work "for a fee of at least 2%." (Ex. 50.) The next day, Heslop emailed Kovall and Bardos and instructed Kovall how to sell the oversight proposal to the Tribe, recommend Bardos over Worth, and increased Bardos' suggested fee from 2% to 2.75%. (Ex. 51.)
The email chain demonstrates direct collusion among the three conspirators. At the time, the Worth Group had not presented any proposal for the oversight work so the numbers attributed to Worth were made up. Moreover, Heslop increased Bardos' suggested fee of 2% to 2.75% of the total cost and outlined how Bardos would be paid, e.g., on a monthly basis. Thus, Heslop was clearly involved in the pricing of Cadmus' projects and Kovall was aware how much Cadmus would gross.11
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11 Notably, Bardos lied to FBI agents about his discussions with Heslop and Kovall about his profit margins (apparently not anticipating that the emails would come to light). Bardos told the FBI:
BARDOS denied having any communications with HELSOP or KOV ALL regarding profits or how BARDOS bid on projects for the Tribe. BARDOS was the contractor and in charge of the projects and the bidding. BARDOS said he bid according to what he [BARDOS] thought was appropriate and did not consult with HELSOP regarding how he [BARDOS] priced projects. (Ex. 37.)
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Shortly thereafter, Kovall met with the Tribe and presented the scheme. On April 4, 2007, Kovall wrote to Heslop and Bardos:
I began opening this thing up with the creatures this morning there is definite interest [sic] in making sure that the electrical projects are fully coordinated with the garage and casino modifications. However, they are very aware of the "role" that they primarliy [sic] want Paul to play -overseeing our contractor Worth. They expressed concern that in "heading up" this work, Paul's resources might be diluted and he would not be able to oversee Worth as well. I suggested that Paul come and explain to them how this would work and allowed as to that being an excellent question to address to Paul. I think we might be close. I told them if Worth does it there will probably be a 5-6% "oversight" fee for no particular enhanced expertise and Paul would likely be substantially less, and that our existing relationship with Paul specifically did not include the solar/cogen oversight work anyway. So I think this is best sold as an oversight responsibility for a fee as well as some independent engineering related to installation of various components along with the Worth casino modification work.
(Ex. 52) (Emphasis added).
In addition to demonstrating his contempt for the Tribe, Kovall's email shows that the Tribe was initially skeptical of retaining Bardos to oversee the cogeneration work. However, through further colluding, the co-conspirators convinced the Tribe to retain Bardos. The email proves that Kovall was undermining the Worth Group to the Tribe even before they had presented an estimate and that Kovall was intimately involved on how to present Bardos' proposal to the Tribe. The proposal Bardos ultimately presented to the Tribe was for oversight responsibility and independent engineering, like Kovall suggested. (Ex. 57.)
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Multiple emails produced by the defendants prove that this statement was false. See,~, Ex 44 (March 16, 2007 email from Bardos to Heslop attaching Worth Group and Laird proposals for temporary access road and indicating Cadmus' net profit of over $464,000); Ex 49, (3/31/07 email from Bardos to Heslop indicating his intention to continue bidding on work by "play[ing] off of Worth's proposed costs without disclosing profits."); Exs. 50-51 (4/2/07 email chains, Bardos suggesting a fee of2% of$30 million construction cost and Heslop increasing it to 2.75%); Ex. 63 (5/28/07 email from Heslop instructing Bardos about including an owners' representative fee); Ex. 63 (5/28/07 email from Heslop to Bardos attaching drafts of proposal comparisons); Ex. 65 (6/09/07 email from Bardos to Heslop asking whether the proposed Cadmus fee should be lowered); Ex. 66 (6/10/07 email from Heslop to Bardos attaching draft memorandum for Kovall to present to Tribe favoring terms of Cadmus cogen oversight proposal over Worth Group); see also Exs. 133-136 (communications between Heslop, Bardos and Kovall concerning Bardos' increased owners representative fee.).
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2. Manipulation of the Worth Group Estimate
After the co-conspirators had set the course for Cadmus to obtain the oversight work, Kovall, in an effort to make the process look unbiased and to provide Bardos with a framework for his proposal, directed the Worth Group to submit a proposal. (Exs.22-23). On April 25, 2007, the Worth Group submitted a proposal for the oversight work described by Kovall for a fee of $267,300.00 plus reimbursable expenses at actual cost plus 15% (SF ¶ 32; Ex. 57.) For the fixed fee, the Worth Group would assign a point person to perform the designated management services, which included developing a program for project organization, tracking all work on the project schedule, managing bid and contract procurement, tracking all project costs, maintaining all documents, coordinating all contractors and architects, submitting monthly reports, coordinate meetings throughout the process, reviewing and approving all progress payments, and the project close out. (Ex. 57.) This was a proposal for expert work beyond what Bardos proposed or did. The proposal also identified and disclosed what would constitute reimbursable expenses, e.g., consultants, travel, reproduction, presentation, material costs, shipping, etc. and contained a provision seeking to limit Worth Group's liability to $50,000. (Id.) The provision had nothing to do with Worth Group's insurance coverage and the proposal specifically contemplated that additional insurance could be obtained at the Tribe's request.
(NEXT—RESTITUTION BRIEF CONTINUED)