The Voice Print Telephone
Then there was the Voice Print telephone. ILA, according to Sandler's testimony, sold one model of this item for $199.95. Maxi-Aids sold the other model for $149.95. Fifty telephone numbers could be programmed into the Maxi-Aids version and 100 numbers into the ILA model so that the user could speak a name and have the phone dial that number. The equipment was voice-activated. The importer discontinued carrying this product in the early nineties, leaving both vendors without the option of reordering the units. Sandler says that he had bought a good number, so he was set for some time to come. But Maxi-Aids had a problem. According to Sandler, during a pretrial hearing in June of 1995, Mitchel Zaretsky told Judge Wexler that the importer assured him that he could easily substitute Radio Shack telephones, which he did.
The trouble was that the Radio Shack phone had a memory of twenty names and numbers and required the user to push a button to initiate its use, so it was, according to Sandler, a very different unit from the one still being advertised by Maxi-Aids and could not be used, for example, by quadriplegics.
According to Sandler, Mitchel Zaretsky testified before Judge Wexler that he bought Radio Shack phones at about $112 and continued to sell them at $149.95. Customers began noticing that they could buy the Radio Shack phone for $99.99 in the store. Judge Wexler asked Zaretsky, according to Sandler, why he did not stock up on the phones at that price, but Zaretsky said that he had a good number on hand and did not need more.
Among the Maxi-Aids documents turned over to the plaintiff before the trial began was a receipt from Radio Shack dated December 22, 1994. It was for the purchase of forty of these phones at $99.99. There was quite a bit of discussion as to whether or not this receipt could be admitted into evidence without bringing in a Radio Shack official to identify it as an actual Radio Shack document. Whether or not Zaretsky bought the units for $112 or $99.99, it is indisputable that Maxi-Aids was making $38 to $50 profit on each unit sold and delivering a unit that did not perform as advertised in the catalog. Sandler reports that at one point Mitchel Zaretsky commented that no one had ever complained about the diminished capabilities of the Radio Shack telephone, as though that justified the Maxi-Aids decision to make the substitution.