THE BRAILLE MONITOR
Vol. 41, No. 3 March, 1998

Barbara Pierce, Editor

 

Published in inkprint, in Braille, and on cassette by
THE NATIONAL FEDERATION OF THE BLIND

MARC MAURER, PRESIDENT

National Office
1800 Johnson Street
Baltimore, Maryland 21230
NFB Net BBS: (612) 696-1975
Web Page address: http://www.nfb.org

Letters to the President, address changes,
articles for the Monitor, and letters to the Editor
should be sent to the National Office.

 

Monitor subscriptions cost the Federation about twenty-five dollars per year. Members are invited, and non-members are requested, to cover the subscription cost. Donations should be made payable to National Federation of the Blind and sent to:

National Federation of the Blind
1800 Johnson Street
Baltimore, Maryland 21230

 

THE NATIONAL FEDERATION OF THE BLIND IS NOT AN ORGANIZATION
SPEAKING FOR THE BLIND—IT IS THE BLIND SPEAKING FOR THEMSELVES

 

ISSN 0006-8829

Contents

Special Note From the Editor
by Barbara Pierce

The Jury Comes Down Hard on Maxi-Aids

The Copyright Question

Watches

The Tab Grabber

The Voice Print Telephone

Say When

The Department of Veterans Affairs Bids

A Question of Character

The Verdict

 

Copyright 1998 National Federation of the Blind

[PHOTO/CAPTION: Barbara Pierce]

Special Note from the Editor

Occasionally in the blindness field a circumstance so extraordinary arises that it demands unusual treatment in these pages. The recent U.S. District Court decision in the Eastern District of New York in the case of Independent Living Aids versus Maxi-Aids is such an instance. The entire March issue is, therefore, devoted to telling the story of this case as it unfolded. We have tried to do so chiefly in the actual words of the trial transcript prepared by the court reporter, so to the lay mind the narrative line may sometimes seem somewhat repetitive and slow-moving. But it seemed important as far as possible to let the principals tell the story in their own words and to let their actions, as described in their testimony, speak for themselves.

It is important, however, to remember that the case is by no means over. As the counsel for the defense, Mark Mulholland, Esq., told me in no uncertain terms, this decision was only the first round in this case. He explained that in copyright infringement cases the initial damages established by the jury are quite likely—more likely than in almost any other type of case—to be reduced by later court action.

Nonetheless, for four weeks people testified in open court about the actions of the defendants and the plaintiff and the policies of the two companies. After hearing the evidence and spending time carefully considering what they had heard, a jury came to certain conclusions. That story and those conclusions have implications and repercussions for the entire blindness field. For this reason we have devoted the March issue to an account of this trial and only this trial. The April issue will be published soon and will contain the convention information for which everyone has been eagerly waiting. Meanwhile we commend to your attention the important matter of Independent Living Aids and Marvin Sandler versus Maxi-Aids and the Zaretsky family. Read carefully and ponder.

[PHOTO/CAPTION: Marvin Sandler

PHOTO/CAPTION: Dr. Mimi Berman

PHOTO/CAPTION: The Independent Living Aids logo

PHOTO/CAPTION: The stylized title that appears on the Maxi-Aids catalog PHOTO/CAPTION: The Slimline Lo-Vision watches that Marvin Sandler believed had been reproduced in the 1991 Maxi-Aids catalog and called Ultima low-vision watches.]

Jury Comes Down Hard on Maxi-Aids

by Barbara Pierce

Note: As background for this article, Monitor readers may wish to review the article entitled "Was it Swiss or Hong Kong: The Story of Maxi-Aids," which appeared in the December, 1994, issue of the Braille Monitor.

On November 5, 1997, a jury of four men and five women filed into a United States District courtroom to hear the case of Independent Living Aids (ILA) versus Maxi-Aids. Thirty-three days later, following two and a half days of deliberation, the jury returned to that courtroom to announce its verdict. It had found Maxi-Aids guilty of infringing on ILA's copyrighted catalogs over a ten-year period, infringing on the ILA trademark, and engaging in deceptive advertising and unfair business practices. The first two charges were federal, and the last two were New York state charges.

The jury awarded damages of $2,400,000.06. The judge will determine later whether and how much to assess Maxi-Aids to offset ILA's legal fees, but he indicated that he was inclined to make a sizable award; the attorney for Marvin Sandler, who is the owner and chief executive officer of ILA, has submitted a bill of $428,000 to the judge.

The trial was extraordinary in every way. The level of animosity between the plaintiff and the defendant in a small market like the blindness and disability field is perhaps not surprising. But, according to the court reporter in the case, who has worked in the Federal Circuit Court in the Eastern New York district for about twenty years, the size of the award is almost unprecedented. According to him, the huge awards that make the news periodically are made by juries in state courts in cases in which there are punitive damages due to personal injury.

Maxi-Aids will almost certainly appeal this decision, so the case is most probably far from over. But the seriousness of the charges, the unsavory behavior of Maxi-Aids as laid out in the testimony, the significance of the verdict, and the size of the jury's award make the case absolutely unique in the blindness field. For these reasons the case is worthy of careful examination. Unfortunately, when contacted, Mitchel Zaretsky refused to make any comment about the case or answer any questions because, he said, "The case is not over."

Though the charges go back to 1985, the first detailed public discussion of the Maxi-Aids problem took place in the December, 1994, issue of the Braille Monitor. (See the article, "Was it Swiss or Hong Kong: The Story of Maxi-Aids," which appeared in that issue.) In January, 1994, Marvin Sandler, co-owner with his wife Dr. Mimi Berman of ILA, wrote a letter to Dr. Jernigan detailing a number of allegations against Maxi-Aids and its owners: Elliot Zaretsky and his children—Mitchel, company president; Harold, who is deaf; and Pamela Stein. Stein is not now an owner, but exactly when she ceased her ownership became quite an interesting issue during the trial.

Throughout 1994 Dr. Jernigan gathered letters from vendors in the blindness field reporting on the Zaretskys' unsavory business practices as the writers had experienced them. We interviewed a number of people, including Elliot and Mitchel Zaretsky, in preparing the story. As soon as Dr. Jernigan had contacted the Zaretskys for comment in early December, according to Sandler's testimony, Elliot Zaretsky called and threatened him. On February 15, 1995, Marvin Sandler filed suit against Maxi-Aids and the Zaretskys. In April, 1995, Maxi-Aids counter-sued for libel and defamation of character because of Sandler's letter published in the Braille Monitor article.

At once both sides began taking depositions and preparing for trial, but it took them and the legal system two and a half years and one mistrial to get to the November, 1997, hearing. Both sides were represented by bright and competent legal counsel. The principal Zaretsky lawyer was Mark S. Mulholland, and Sandler's principal lawyer was Jack S. Dweck. The judge was Arthur D. Spatt, United States District Judge. To follow the portions of the trial transcript included in this article, it is important to recognize the names of the principal participants.

Unraveling the many strands of this case has been a formidable task. The trial transcript runs to over 3,400 pages. Through the years I have read my share of court decisions. I have even read and corrected my own several-hundred-page deposition. But never before have I read most of an entire trial transcript. Several points leapt out from the text. It was immediately clear that the judge was eminently fair and conducted the trial with humor and consideration.

The jury was extremely conscientious. From comments made by both lawyers and the judge, one gathers that this jury carefully followed the arguments and the testimony, using the copies of documents provided to them. In fact, Marvin Sandler told me that at the close of the trial the judge told them to clear all the material from his courtroom in a hurry because he was starting another trial. All the jurors' document boxes ended up in Sandler's possession. In looking through these he read the comments the jurors had made on their pads. He says it was clear that they were carefully following the arguments and intelligently assessing the evidence as they went along.

Throughout the trial both lawyers demonstrated the courtesy of gentlemen. They were respectful at all times and genuinely seemed to be trying to conform to the judge's rules. They were not pushing the limits of his rules as lawyers seem to do in novels and on television. In fact, they bent over backwards to be polite and patient. The entire proceeding was civilized to an almost startling degree. The only possible exception to the general civility was the occasional flashes of temper, sullenness, and ill-temper on the part of various members of the Zaretsky clan. The following is a brief excerpt from early in Elliot Zaretsky's testimony on November 24, 1997, that shows Mr. Zaretsky's unwillingness to answer questions simply and clearly and the humor and firmness of the judge: Jack Dweck is questioning Elliot Zaretsky about several answers he had given during his deposition.

Q: Mr. Zaretsky, you remember giving testimony before trial in this case?

A: Yes, I do.

Q: Do you remember, sir, Mr. Hubell [ILA's assistant counsel] was the one that questioned you on each of these dates, January 30, 1996--

THE COURT: You will not go through all of that, are you? He was questioned—There's a stack about a foot high, full of transcripts. You have to be an endurance runner—Mr. Hubell is to be congratulated, and we'll award him a medal. MR. MULHOLLAND: What about me, Judge? I was there too. THE COURT: We'll give each of you a medal. We'll give you the Bronze Star, not great, but very good. Very good. Not giving you the Silver Star, Congressional Medal of Honor, or—because you'll have to fill the room with transcripts [to deserve that medal]. THE WITNESS: Your Honor, may I say something?

THE COURT: No, you may say nothing.

THE WITNESS: Thank you.

BY MR. DWECK: [resuming his questions]

Q: You remember when you were questioned by Mr. Hubell on all of those dates for which he has just been given a medal, you were under oath, correct?

A: That's correct.

Q: Did you give this answer to this question, sir, on page 14, line 11?

Question: "How did you come to acquire ownership of the shares that were originally held by Pamela Stein?"

Answer: "She left the company."

Did you give that answer to that question, sir? Yes or no, sir?

A: She left the company for—

MR. DWECK: Your Honor.

THE COURT: Listen to me, Mr. Zaretsky. Let's start off on the right track.

THE WITNESS: Yes, Your Honor.

THE COURT: You're an intelligent man. You understand what he's telling you, don't you—

THE WITNESS: You know my problem is—

THE COURT: No, don't give me your problem. Do you understand what he's saying?

THE WITNESS: Yes, Your Honor.

THE COURT: If you don't understand, say so. Were you asked that question and did you give that answer? That's all. THE WITNESS: I do not recall. . . .

Q: The next question. Did you give this answer to this question, sir?

Question: "When was that, sir?"

"Answer: "I'm not too sure of the date."

Did you give that answer to that question, sir?

A: Yes.

Q: Mr. Zaretsky, at page 15, the very next page, did you give this answer to this question, sir, line 20?

Question: "Does she still own shares in the corporation?"

Answer: "Sort of, yes."

Did you give that answer, sir?

A: Yes.

Q: Mr. Zaretsky, will you agree with me, sir, that from the time you took over Pamela's shares in 1988, Pamela has not been an owner of the company?

A: On paper, sir.

Q: On paper, agreed, yes?

A: On paper, yes.

Q: Mr. Zaretsky, that would mean on paper, as far as the federal government was concerned, Pamela did not have any ownership in the company from the time you got her stock on January 1, 1988; is that right, sir?

A: That's correct.

Q: And from 1988 right until now, as far as the federal government was concerned, whether it is for income tax purposes or any other purposes, Pamela was not an owner. Agreed? A: Agreed.

The Copyright Question

According to Marvin Sandler's testimony, Independent Living Aids was started in 1977 as one of several companies owned by the Sandler family. In April of 1987 he and his wife actually bought ILA from the family and actively took over its management themselves. His wife held 60 percent of the stock, and he held the rest and acted as president. In February, before this transfer, the ILA catalogs of several of the Sandler companies were taken to a firm of copyright attorneys so that all the catalogs could be copyrighted in a group. Copyrights can be obtained after publication, and the ILA catalogs from 1985 on were included in this group of documents. Entered into evidence at the trial were ten copyright certificates from the U.S. Copyright Office for ILA catalogs beginning with 1985.

Notwithstanding this obvious proof of copyright, many hours of questioning in the trial were devoted to such issues as whether or not it was reasonable for ILA to copyright such a document. The Zaretskys maintained that everybody received pictures from manufacturers of the products, so those could not be exclusive to one company. Sandler pointed out in excruciating detail the things he had done to set his catalog apart from others. He inserted pithy little sayings and quotations. The ILA catalogs included service announcements about free materials available to disabled people. Many of the photographs that were used in the ILA catalog Sandler testified were demonstrably taken by his photographers, and the catalog order numbers were specific to his company. ILA began producing a color catalog on slick paper, so it had quite a different appearance from the Maxi-Aids catalog, which was produced on newsprint with black-and-white pictures.

Sandler maintained, and produced charts and blow-ups to support his contention, that Maxi-Aids had taken his order numbers and converted the first number into the letter corresponding to it in the alphabet--7 to G, 8 to H, etc. He also pointed out that the organizing principle for Maxi-Aids's listing sewing products, for example, turned out—by no coincidence to his way of thinking—to be identical to that in the ILA catalogs.

Mulholland argued for the Zaretskys that the catalogs were always different colors. The cover layouts were different. Maxi-Aids carried many more products than ILA did, and they often charged less. There were lots of instances in which both companies used photos provided by manufacturers. All this demonstrated that Maxi-Aids was not infringing on copyright. Furthermore, ILA had no right to obtain copyrights on its catalogs anyway because no one had done that before, and everybody copied from everybody else anyway. But the jury didn't buy it.

Elliott Schreier worked for the American Foundation for the Blind for some years. According to the 1994 Braille Monitor story, he visited the Maxi-Aids offices, where Zaretsky offered him a bribe. Since bribery charges were not at issue in this trial, that part of his story could not be admitted into evidence. But this is what he did say in answer to Jack Dweck's questions on the stand:

Q: And tell us, please, what you observed in that room, at the time that Mr. Elliot Zaretsky told you this was the development room for their catalogs?

A: At that time I observed stacks of catalogs of the companies involved in the blind and vision-impaired business, and it would be ILA; Vis-Aids; AFB, the organization I worked for. There was a drafting table or production type of table. There were knives, scissors, glue, equipment used primarily in cutting and pasting of catalogs.

Q: When you say in cutting and pasting of catalogs, did you actually see this operation?

A: I don't believe there was anybody there at the time cutting and pasting, but there was certainly the appearance that that is the type of activity ongoing there with scraps of paper, scraps of materials and catalogs, as well as the stacks of catalogs. MR. MULHOLLAND: Objection. Move to strike. THE COURT: Sustained. Strike out the entire last answer. He was asked if he saw anybody cutting and pasting. He said no. Other than that the entire answer is stricken. The jury is instructed to disregard it.

Q: Now, at that time did you have a conversation, a further conversation with Elliot Zaretsky?

A: I had mentioned to Elliot in passing whether or not this is where one of the pictures in their catalog of an AFB product we had designed had been taken and cut and pasted into their catalog. And the conversation—he indicated yes, it was, and that this was part of the way that costs were kept down, by using other people's photographs and components in developing their catalog.

Q: And, Mr. Schreier, did you have any further conversation with Elliot Zaretsky at that time, sir?

A: I don't recall so.

Q: Now, how do you know that there were other companies' catalogs in this room?

A: I saw them.

Q: What is the basis of your statement, sir, that you saw ILA catalogs or AFB catalogs?

MR. MULHOLLAND: Objection. No such testimony, Judge.

Q: Well, the witness said he saw catalogs. THE COURT: What catalogs did you see while you were in the defendant's facilities?

THE WITNESS: I remember seeing—

THE COURT: You are getting back to flank speed again.

THE WITNESS: Sorry.

THE COURT: You are not designing catalogs now. You are in a courtroom. So slow down.

THE WITNESS: Sorry.

THE COURT: We don't pay by the hour here. Slow down.

THE WITNESS: Okay.

THE COURT: Now, tell us what catalogs you saw. I lost you. THE WITNESS: AFB, the organization I worked for; Independent Living Aids; Vis-Aids. Those three I specifically remember.

Watches

From the beginning one of Marvin Sandler's biggest complaints against Maxi-Aids concerned Braille and low-vision watches. The Maxi-Aids catalog through the second half of the eighties included pictures of ILA watches, most of which conspicuously included the ILA logo. Sandler argued that this indicated that Maxi-Aids was using a competitor's photos and then undercutting its prices. Elliot Zaretsky explained, however implausibly, that he had bought a small number of ILA watches from ILA in 1986. The same year he bought other ILA watches from another company at a much-reduced price. This enabled him to sell ILA watches from 1986 through 1989 at half the ILA price. Sandler, however, testified and assured the Braille Monitor in an interview that he never sold any watches to Maxi-Aids and would not have sold them to a close-out house while he still carried them at full price in his own catalog. He also said that he had conducted a search for evidence that ILA watches might have been sold to Maxi-Aids before he and his wife took over in 1987. He found nothing to indicate that such a sale had ever taken place. Here is Elliot Zaretsky's testimony on the point. It begins with a reference to two ILA watches by their ILA and then Maxi-Aids order numbers:

BY MR. DWECK:

Q: You got 856824 from ILA, that's your testimony, correct?

A: I got watches from ILA.

Q: Is that correct, sir?

A: Yes.

Q: And you got 856825 from ILA, correct?

A: That's correct, sir.

Q: And you put them in your catalog for half the price that ILA had them; isn't that right, sir?

A: That's correct.

Q: And you were losing money on those watches?

A: No, because I bought it from—

MR. DWECK: Your Honor, I move to strike anything below or after the word "no."

THE COURT: Motion granted. Strike out everything after the word "no." Just listen to the question, Mr. Zaretsky. Try to answer yes or no, if you can. If you can't, say I can't answer yes or no. But please, no explanations. Do you understand, Mr. Zaretsky? THE WITNESS: Yes, sir. Yes, Your Honor.

BY MR. DWECK:

Q: Mr. Zaretsky, in the following year, in 1987 you showed the same watches, 856824 and 856825; isn't that right, sir? A: Yes.

Q: And you again had them at almost half the price of ILA; isn't that right, sir?

A: That's correct.

Q: Mr. Zaretsky, you featured those same watches again in your 1987 second edition, and you again had them at almost half the price of ILA's price; isn't that right, sir? A: That's correct, sir.

Q: Mr. Zaretsky, in the summer of '87 catalog you did it again, didn't you, sir?

A: Yes.

Q: For half the price of ILA, less than, or rather half the price of ILA?

A: Yes, sir.

Q: Mr. Zaretsky, you bought ILA watches from Around the World Distributors, is that your testimony, sir? A: Yes.

Q: And that was in 1986, according to your testimony, correct?

A: I would say so. Around that period.

Q: That's about the same time you bought them from ILA; isn't that right, sir?

A: I would say so.

Q: Mr. Zaretsky—

A: I do not recollect exactly.

Q: Mr. Zaretsky—

A: Yes.

Q: --Why go to a distributor when you could have bought them all from ILA?

A: I'll give you a very good reason, sir. . . .

Q: Let me ask it this way, sir.

Q: You bought them from ILA in '86, right?

A: Yes.

Q: And you bought them from a distributor, according to your testimony, Around the World Distributors, in '86? A: That's correct.

Q: And you didn't buy all of them from ILA in '86; is that correct?

A: Not all of them, no.

Q: Mr. Zaretsky, you had an account with ILA in '86?

A: I'm almost 99.9 percent, yes.

Q: At the same time that you had this account that you're 99.9 percent sure of, you were buying watches from a distributor, sir? A: Yes.

Q: In the same year?

A: In the same year.

Q: And selling them at half price?

A: I could afford it, yes.

Q: You could afford it in the first year you were in business; is that right, sir?

A: Yes, sir, very much.

Q: And the second year you were in business?

A: Yes.

Q: And the third year?

A: Yes.

Q: And the fourth year you were in business, '89; isn't that right, sir?

A: '89 is not the fourth year, sir; it's the third year.

Q: I'm sorry.

A: Okay.

Q: And you could afford it in that year too?

A: That's correct.

Q: To sell them at half price?

A: Yes, very much so.

Q: Mr. Zaretsky, do you have even a single invoice to show the purchase of any of these watches from ILA? A: Mr.—

Q: Yes or no, sir?

A: No, sir.

Q: Do you have a single invoice to show that you purchased these, sir, from this company "Around the World Distributors"? A: Mr. Dweck, it was twelve years ago. I do not recollect. I do not know.

Q: Well, either you have the invoice, sir, or you don't have it.

A: I do not have it now. . . .

[From the redirect examination of Elliot Zaretsky the following day: ]

Q: Mr. Zaretsky, when you submitted the ILA watches in your catalog, did you supply ILA watches to anybody that ordered them, sir?

A: Yes.

Q: Mr. Zaretsky, when you purchased the ILA watches, was it from Mr. Sandler?

A: Say that again?

Q: I said, when you bought these watches that you say you bought from ILA, did you buy them from Mr. Sandler (indicating)? A: As I told you yesterday, I don't remember who it was that I bought it from. From ILA, yes. I don't remember the gentleman's name.

Q: Was it Sandler?

A: I don't think so.

Q: Mr. Zaretsky, you said that you bought about 100 watches from ILA; is that right, sir?

A: I don't remember exactly the number, but I would say so. Maybe more or less.

Q: Was that the supplier of the watches that you used for three years in a row in the catalog?

A: Almost.

Q: Mr. Zaretsky, the rest of the watches that you had for three years in your catalog were the ones you bought from this Around the World Distributors that you are telling us? A: Yes.

Q: And you didn't buy very many from them, did you?

A: They had quite a bit of them.

Q: They had quite a bit of them?

A: Yes.

Q: How many did you buy from them, more than 500?

A: Less than 500.

Q: More than 250, sir?

A: Well, there was a mixture of low vision watches and Braille watches, sir.

Q: Mr. Zaretsky, was it more than 250 in the whole mixture that you bought from Around the World Distributors? A: Honestly I don't recall, sir.

Q: But it was less than 500?

A: Yes.

Q: And about 100 from ILA, that would be less than 600 altogether, from both sources?

A: That's correct.

Q: And are you telling this Court and jury that, for every watch you sold for the three years that you featured them in your catalog, you lost like $25 and $30 a watch? A: No, sir, I paid only $5--can I say it?

Q: Are you telling us you lost $20 to $30 a watch?

A: No, I didn't lose any money.

Q: I thought five minutes ago you said you could afford it? A: I could afford it. I did not lose any money. That's exactly what I said.

Then there was the problem of Maxi-Aids selling low-vision watches that arrived in boxes that conspicuously said "Swiss," but the watches were actually equipped with Japan movements or made in Hong Kong. The Maxi-Aids catalog pages showing the watches included the word "Swiss" but also bore asterisks that were otherwise unexplained. Here is Mitchel Zaretsky's explanation under questioning by Jack Dweck of what the asterisks meant and how the footnote warning buyers that the models with the asterisks were made in Hong Kong had fallen off the galley of the first catalog in question, and the error had not been noticed the next year:

Q: Mr. Zaretsky, when you advertised in your catalog, sir, for 1993, you had the Ultima low-vision black face with the asterisk; is that right, sir?

A: Yes.

Q: And that's what you told this Court and jury the other day, was where the asterisk fell off the galley that you sent to the printer; is that right, sir?

A: No. I said the footnote.

Q: I am sorry, the footnote fell off the galley; is that right?

A: Yes.

Q: Mr. Zaretsky, you didn't have any other notation of Hong Kong or HK on this 1993 price list besides these two asterisks, which you testified belonged to a footnote that fell off the printer's galley; is that right, sir?

A: Yes.

Q: Mr. Zaretsky, do you have that galley [proof] with you today, sir?

A: No, we do not.

Q: Does it exist, sir?

A: Not to my knowledge.

Q: Mr. Zaretsky, when you did the 1994 catalog, you put asterisks again, did you not, for the same two watches? A: No. It was the same galley.

Q: Did you put the—

MR. DWECK: Move to strike, your Honor.

THE COURT: After the word "no" strike it out. Q: Does your 1994 price list contain two asterisks for the same two watches, B-11 and B-12, as they appear on the 1992 price list?

A: Yes, they do.

Q: Is it your testimony, Mr. Zaretsky, that the footnote fell off the galley the second year?

A: No. We just didn't observe it.

Q: Mr. Zaretsky, in 1993 you had the same watches, B-11 and B-12; is that right, sir?

A: Yes.

Q: And on this photograph you have no asterisk, do you, sir?

A: No.

Q: And there is no HK on it, is there, sir?

A: Not on this one.

Q: There is nothing then to denote that these are watches from Hong Kong, is there, sir? Do you want me to bring it a little closer?

A: Only the movement on the watch.

Q: There is nothing—you can't read anything on this watch, can you, sir?

A: No.

Q: You can't read anything on here (indicating), can you?

A: No.

Q: And, Mr. Zaretsky, in 1995 [immediately following publication of the Braille Monitor story about the Hong Kong watches], when you had this catalog, you put HK below those watches; isn't that right, sir?

A: Yes, we did.

Q: And there is no legend anywhere on this page of what HK means, is there, sir?

A: No.

Q: And there is no legend on the page with the prices on there indicating what the HK stands for, is there, sir? A: No.

Q: Mr. Zaretsky, you did put a legend on the price list page, "E means expansion," right?

A: Yes.

Q: You put another legend, "L means leather," on the top of the page; is that right, sir?

A: Yes.

Q: So, we have a legend for expansion band and leather band, but no legend for what HK means, is that correct? Isn't that right, sir?

A: Yes.

Q: Mr. Zaretsky, in 1992, Exhibits 14-A and 14-B, you have no indication of HK on those watches either, do you, sir, B-11 and B-12?

A: No. I thought we just went over that.

Q: Am I right about that?

A: No HK.

Q: No HK?

A: Right.

Q: And there is no HK on this 1992 catalog sheet, page 19, for those watches either; is that correct?

A: No.

Q: And you can't read anything on the bottom of these watches that shows either a Japan or Chinese movement or anything like that; is that right, sir?

A: No.

Q: And you will agree that this blowup is probably 15 times the size of your catalog?

A: I don't know the exact percentage. It is bigger. Q: Okay. And, Mr. Zaretsky, in your 96-97 catalog you put black print on top of a black band below B-11 and B-12, which reads, if you can read it, Hong Kong; isn't that right, sir? A: Yes.

Q: And this catalog is for low-vision people also; isn't that right, sir?

A: Yes, it is.

Q: And you were talking about the contrast of the letters and the numbers on the black face with the white face, or the white numbers on the black face, and the black numbers on the white face?

A: Yes.

Q: And, Mr. Zaretsky, where you put Hong Kong on this catalog, it is black on black, isn't it, sir?

A: Not everywhere.

Q: Where it says Hong Kong, it is black on black, isn't it, sir?

A: Not in this catalog.

Q: Mr. Zaretsky, this is a 1996-1997 catalog. That's black on black, isn't it, sir?

A: On this location, but not on others.

Q: Is that a yes or no?

A: In this location it is black on gray, yes. Q: Black on gray. Would you say, sir, being in the catalog business for low-vision people, that is suitable for a person with low vision to see?

MR. MULHOLLAND: Objection.

THE COURT: Overruled.

Q: Black on gray as you put it, sir.

A: Yes.

Q: That's suitable for a low-vision person to see?

A: They might have a hard time with that. Q: Mr. Zaretsky, you continued the black on black, or black on gray, as you put it, with the Hong Kong, B-11, B-12, into the 1998 catalog, didn't you, sir?

A: On that page, yes.

Q: I am only talking about B-11 and B-12.

A: It appears elsewhere.

Q: Mr. Zaretsky—

MR. DWECK: Move to strike, your Honor.

THE COURT: Motion granted. Strike it out.

Q: Mr. Zaretsky, follow my question. If you have trouble tell me;

I will change it.

A: Okay.

Q: On B-11, B-12, in your 1997-1998 catalog, you put the words Hong Kong, in black on black, didn't you, sir? A: On the photograph, yes.

Q: Would you say it is suitable for a person of low vision to see or read?

A: They might have a hard time with it. Q: Mr. Zaretsky, when Mr. Mulholland was questioning you yesterday, I believe you testified, sir, that these were not copied into your catalog; is that right, sir? A: To the best of my knowledge, that's correct. Q: And, Mr. Zaretsky, you would agree with me, sir, that this is that copy of page 19 from your '92 catalog? A: Yes.

Q: And these are the Ultima low-vision quartz [watches]; is that right, sir?

A: Yes.

Q: And your testimony in response to a question from Mr. Mulholland was that these were not copied from an ILA brochure or catalog; is that right, sir?

A: To the best of my knowledge, yes.

Q: Mr. Zaretsky, the reason you said—the reason you said that is because the hands didn't line up on both watches; isn't that right?

A: That's part of the reason, yes.

Q: Mr. Zaretsky, I am going to have these two cut-outs, which I represent to the Court are from the ILA Exhibit 10, put on— superimposed on your page 19. Would you agree with me, Mr. Zaretsky, that those watch cutouts came from an ILA brochure, Exhibit 10?

A: No.

MR. MULHOLLAND: Objection.

THE COURT: Overruled.

MR. MULHOLLAND: I don't know what he is referring to, the cutouts that he pasted on or what was on the face of the catalog. THE COURT: Does the witness know what he was referring to?

MR. DWECK: He knew. These items here.

THE COURT: Excuse me. Did you know what he was referring to? THE WITNESS: The cutouts he made from his brochure, he was asking me if they were the same as the images depicted on my catalog. And my answer was no.

THE COURT: Very well.

Marvin Sandler explains that during the last part of that testimony, while Dweck was talking about the cutouts from the ILA brochure depicting two low-vision watches, Sandler was moving to the blow-up of the Maxi-Aids catalog picture of two watches and arranging and then taping the cutouts onto the large picture so that they exactly mirrored the Maxi-Aids pictures. Zaretsky had maintained that the two watches in his catalog were in different positions in relation to each other than the ILA watches were in the ILA brochure. Sandler says that his action demonstrated to the jury conclusively that the pictures of the two watches were identical in the two catalogs.

In 1991 the Texas Commission for the Blind put out bids for a number of items for purchase. When taxed with having submitted an ILA watch as the sample of the Maxi-Aids product for bid, Mitchel Zaretsky explained that, since the ILA watch had been the standard, he was merely indicating that he was prepared to provide that quality watch. He said that he sent pictures of the ILA watches to Hong Kong manufacturers only to get cost information for the Texas bid so that he could produce the same watch with a Maxi-Aids logo instead of the ILA one. He denied that he had been arranging to produce a knock-off of the ILA watches. The only problem with this explanation was that Jack Dweck produced the Maxi-Aids bid to the Texas Commission, which was dated in July of 1991, and also the faxes to Hong Kong, which demonstrated that the first one was sent in September. So Zaretsky's alleged inquiry about production took place at least two months after the bid for those watches had been submitted.

The Tab Grabber

A recurring theme throughout the trial was the Maxi-Aids practice of advertising one product and substituting another for it. The tab grabber is a case in point. Marvin Sandler describes this small tool as an aid to opening soft-drink cans using a slot on one end and opening bottles using a fluted hole at the other. Sandler says that it is helpful to people with arthritis and to those like airline cabin personnel who have lots of bottles and cans to open. Here is Jack Dweck questioning Elliot Zaretsky about first the Maxi-Aids simple soft-drink can opener that Maxi-Aids sold and identified by sticking on a label as a tab grabber and then the ILA product, which includes the fluted hole for opening bottles.

THE COURT: What is this?

MR. DWECK: That's the product that Mr. Zaretsky just identified as the tab grabber that Maxi-Aids ships in response to the advertisement contained in their catalog. THE COURT: Any objection?

MR. MULHOLLAND: No objections, Judge.

THE COURT: Plaintiff's Exhibit 29 in evidence.

(Plaintiff's Exhibit 29 received in evidence.) Q: Mr. Zaretsky, on the card on which this product comes, it says "magnetic pull top can opener," correct? A: Mr. Dweck, the way you describe it—

MR. DWECK: Your Honor, I'm going to again object to Mr.

Zaretsky's editorializing, Judge.

THE COURT: Well, I'm going to strike the answer. The jury is instructed to disregard it.

BY MR. DWECK:

Q: Mr. Zaretsky, can we read this together, sir? "Magnetic pull top can opener."

A: That's correct.

Q: And can you read for the Court and jury the description you have in your 1993-1994 catalog for the tab grabber? A: "The tab grabber opens cans and soda bottles easily. Excellent for people with arthritis. Opens cans and bottles instantly and safely. It is magnetic so you can keep it on the refrigerator door." I'm sorry. "Has a magnet so you can keep it on the refrigerator door."

Q: Mr. Zaretsky, I have this bottle for you, sir. Will you please demonstrate to the Court and jury how your product which you advertise as a tab grabber opens cans and soda bottles easily? A: It opens cans very easily, but it is not made for this screw-on cap; it's made for a lift-off cap.

Q: So are you telling me, sir, that that item will not open up this bottle?

A: Not a screw-on cap. We never said a screw-on cap.

MR. DWECK: Motion to strike.

THE COURT: Motion granted. Jury is instructed to disregard. Q: Are you telling this Court and jury that that product will not open up that product, Mr. Zaretsky?

A: It will not—

Q: Yes or no, sir?

A: It will not open this particular bottle.

MR. DWECK: I'll take that, Judge.

Q: Mr. Zaretsky, I'm now going to hand you this item and ask you if you can identify this item as a tab grabber opener. A: This is a different type of grabber.

Q: Does that mean yes?

A: Yes, it is.

Q: And would you agree with me, Mr. Zaretsky, that that product is labeled "tab grabber"?

A: Yes, it is.

Q: Mr. Zaretsky, would you please, sir, using that item, open the bottle.

A: First of all, it is very difficult for an arthritic person to open it.

MR. DWECK: Objection, Your Honor.

THE COURT: Motion granted. Strike the answer as not being responsive.

THE WITNESS: I cannot open this bottle. MR. DWECK: May I ask, with your permission, to allow Mr. Sandler to open that bottle with that item.

THE COURT: Yes.

(Mr. Sandler opens the bottle.)

THE WITNESS: Very good.

BY MR. DWECK:

Q: Mr. Zaretsky, is it correct, sir, that your product which you advertise as a tab grabber will not open that bottle? A: It wasn't meant to open up this bottle, no.

Mr. DWECK: Move to strike, Your Honor.

THE COURT: Motion granted. Strike the answer as not being responsive.

THE WITNESS: I'm sorry.

BY MR. DWECK:

Q: Is it your testimony, sir, that your item will not open up that bottle?

A: That's correct.

Q: Would you agree with me then, sir, that the description contained in your advertisement in your catalog 1993-94 is incorrect when it states "tab grabber opens cans and bottles easily"?

A: I do not agree with you, sir.

MR. DWECK: Move to strike on the ground it is not responsive, Your Honor.

THE COURT: It is responsive. He says no.

MR. MULHOLLAND: Thank you, Judge.

MR. DWECK: Okay.

BY MR. DWECK:

Q: Now, sir, --

THE COURT: What page was that on?

MR. DWECK: That was page 72.

JUROR NO. 4: 72.

JUROR NO. 3: 72.

MR. DWECK: 72 is right, Your Honor.

Q: Now, Mr. Zaretsky, would you agree with me, sir, that Maxi-Aids advertised that same tab grabber that I showed you from your 1993-1994 catalog, from 1986 right into the present catalog 1997? A: Honestly, I do not know what has been advertised.

THE COURT: You are not going to go through all of these catalogs.

If you say it is, we'll take your word for it, right, Mr.

Mulholland?

MR. MULHOLLAND: I'll read them later on, Judge; then I'll take his word for it.

THE COURT: All right. Go ahead.

MR. MULHOLLAND: Judge, we can concede for now. If I feel there is something that I have to bring to the Court's attention, I'll do that later on.

THE COURT: All right. You don't have to go through all of these.

BY MR. DWECK:

Q: Would you agree with me, sir, that you advertised a "tab grabber" from your 1986 catalog right into your 1997 catalog? A: I'll be honest with you, I do not remember what we advertised.

THE COURT: All right. Is it in there?

MR. DWECK: Yes, it is, Your Honor.

THE COURT: Okay. We'll accept your word as an officer of the Court that it is in there.

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.

Say When

In about 1980 Dr. Tim Cranmer, a leader in the National Federation of the Blind of Kentucky and associated at the time with the Bureau for the Blind in that state, began working with a couple of Bureau employees to design a liquid level indicator which eventually became the Say When®. Kentucky Industries for the Blind, also a division of the state's vocational rehabilitation agency, recognized the value of this little product and made plans to manufacture it, using blind and visually impaired people to do the production. They took the precaution of having the name trademarked and began production with two people working every day on the job.

During the early eighties, according to Bob Byrd, Director of Kentucky Industries, sales began to take off. Not only were the catalog houses ordering the units for resale in their catalogs, but state agencies, individuals, and even agencies around the world began ordering the product. Kentucky Industries for the Blind eventually put three blind people to work full-time on the project, and they were turning out 2,400 units a month. They sold for $13.95 and held up well under steady use. At its peak the Say When was generating $700,000 a year in sales for KIB and was providing very fine jobs for three blind people.

Then, Byrd reports, in the early nineties business began to fall away. They soon discovered that Maxi-Aids was selling a product called Say Stop, which was also a liquid level indicator, and the price was $1 less than the Say When. As people began to contact Kentucky Industries to complain about the Say When, Kentucky personnel discovered that the units that were giving trouble were Say Stops. When they examined the Maxi-Aids product, they discovered that the Say Stops were not waterproof, and the wires to the battery—a hearing aid battery—were very light-gage and were corroding quickly. Byrd and company did not worry much because, according to him, they decided that as soon as people got used to the confusion in names and learned that the Say When® was superior, the market would pick up again.

But things did not get better; in fact, they got gradually worse. They discovered that someone had begun producing a product being called "Say When" as well. It was being imported from Asia, so it cost significantly less than the Kentucky Say Whens®. Not until about a year ago did Bob Byrd learn that Maxi-Aids was responsible for this infringement of its trademark. One by one the various suppliers abandoned the Kentucky product for the cheaper one. Marvin Sandler said he was the last to jump ship, but he was being priced out of the market, so he eventually had no choice but to find cheaper units to sell.

When asked whether Kentucky had plans to sue Maxi-Aids for infringement of trademark, Byrd said that he had discussed it with the Attorney General's office and that the decision was not to do so. The problem seems to be that the state would have to employ an attorney specializing in trademark law in the state where the suit would be brought, and it would simply be too expensive. Byrd pointed out, however, that a transition is taking place, and Kentucky Industries for the Blind is gradually becoming Kentucky Industries for the Blind, Inc. The transformation will be complete by June of 2000, and the trademarks will belong to the new, private entity. At that point the company will be free, if it chooses, to pursue those who infringe on its trademarks in the future or even those who did so in the past.

Byrd commented wryly that he should have suspected that Maxi-Aids was the culprit in the Say When® disaster. At about the same time as the Say When problem was heating up, they discovered that Maxi-Aids had begun advertising its own version of another Kentucky trademarked product, which it called by the Kentucky trademarked name—he thought it was Hi-Marks—and a marketing person from Kentucky Industries for the Blind called Maxi-Aids to protest the action and demand that they remove the product from the Maxi-Aids catalog. Apparently without comment Maxi-Aids complied with the demand. But that did not stop the Zaretskys from pulling the same stunt with the Say When®.

Bob Byrd was to have testified at the Maxi-Aids trial until serious illness in his family kept him at home. Bits of the story came out during the trial, but without Byrd's testimony it was somewhat unclear. Part of the difficulty, according to Sandler, was Harold Zaretsky. Harold is deaf and used an interpreter, which in itself compounded the problems of getting accurate testimony. Sandler says that Harold has limited intelligence but that he is innately honest, though easily led by members of his family.

During his deposition, Sandler says, Harold testified that in the early nineties he was producing Say Whens in the Maxi-Aids warehouse. Eventually production was moved overseas. By the time Harold got onto the stand during the trial, he had a different story to tell. He said that he had made one Say When to show to the Asian manufacturers but that he had not produced them for sale in quantity. Dweck got permission to read Harold's conflicting testimony from the deposition into the court record, but in the end he did not do so. It is clear from talking with Sandler that he has no stomach for attacking Harold. In fact, one of the things he holds against the other members of the Zaretsky family is what they have done to Harold through all this.

The Department of Veterans Affairs Bids

One of the subjects of inquiry during the trial was Maxi-Aids' efforts to strengthen its hand in the bidding process conducted by the Department of Veterans Affairs. In 1993 the Maxi-Aids bid on a number of items came in indicating that the vendor was a woman-owned company, which gave it an advantage. The next year it announced that it was minority-owned. The story was that Pamela Stein had been the majority shareholder and was running the business, even though Mitchel was the president. Then, the story went, Pamela sold her interest to Harold, who became the majority shareholder.

Sandler called to the VA's attention the fact that in neither instance was this the case with Maxi-Aids, but the VA dismissed his claims because he was a competitor. Sandler's anger over this ploy continued, apparently, to be a mystery to the Zaretskys. During the trial Elliot pointed out that, even if Maxi-Aids had been eliminated from the VA bidding, ILA would not have gotten the bids in question, so he could not see what all the fuss was about.

Here are the facts that clearly emerged during the trial. Apparently Pamela has never owned more than a third interest in the company, and she has never run its day-to-day operations. She was paid for her stock at the end of 1987, a full six years before she was supposed to have sold her interest to Harold. Harold has never held more than a third of the company's stock and, of course, has never been a part of the company's management.

When Marvin Sandler was gathering documents for the trial, he received a copy of a document from the VA dated May 25, 1993, which stated that by April 30, 1994, Pamela Stein would sell her interest in Maxi-Aids to Harold. VA officials said that Elliot Zaretsky had turned over this document shortly after a VA investigator came to interview him in the summer of 1994 about whether or not his company had been woman-owned in '93 and was minority-owned in '94. The Zaretskys maintained that this had been an internal document only and that they had not given it to the Department of Veterans Affairs. The fact remains, however, that the plaintiff knew of the document's existence and knew to demand that the defendant produce it because the Department of Veterans Affairs had received it from somebody and, upon request, had turned it over to Sandler.

The allegations in this part of the case, if found to have substance, may well lead to criminal charges. The VA has reopened its investigation. It certainly did not do much of a job investigating the first time around; only time will tell whether more zeal will be shown in round two. Here is Mitchel Zaretsky's testimony under direct examination by Jack Dweck:

MR. DWECK: I call for the production of the original guaranty, your Honor. This is a copy that counsel furnished us. THE COURT: Do you have an original, Mr. Mulholland? MR. MULHOLLAND: I have never seen an original, judge. I have to inquire of Mr. Zaretsky.

THE COURT: You can inquire at the proper time. (Plaintiff's Exhibit 110 received in evidence.)

Q: Mr. Zaretsky, when this guaranty was signed by you and your brother Harold—you identified your signatures the other day; do you remember that, sir?

A: Yes.

Q: And you submitted that guaranty to the Veterans Administration, did you not, sir?

MR. MULHOLLAND: Objection.

THE COURT: Overruled.

A: I did not.

Q: Did someone from your company submit this guaranty to the Veterans Administration?

MR. MULHOLLAND: Objection.

THE COURT: What ground?

MR. MULHOLLAND: Asked and answered. Judge, we covered that ground.

THE COURT: I don't recall if we did. If it was, it will have to be repetitive. Overruled.

A: I did not, no.

Q: Mr. Zaretsky, you signed this guaranty, did you not, sir?

A: It has my signature on it, yes.

Q: And you signed this guaranty for a governmental agency; is that correct?

A: No.

Q: Who did you sign this guaranty for, Mr. Zaretsky?

A: I don't recall for whom, but it wasn't a governmental agency. Q: Did you not submit this to Thomas Valerie of the investigative unit of the Veterans Administration?

A: No.

Q: Isn't it a fact that this guaranty was delivered by your father Elliot Zaretsky to special Investigative Agent Thomas Valerie of the Veterans Administration? A: I don't know what my father did.

Q: You are telling us that you as president and a one-third owner signed the guaranty and you don't know what it was for; is that what you are telling us?

A: Yes.

Q: Wasn't this guaranty in connection with a representation by you to the Veterans Administration, sir, that your sister, Pamela Stein was to relinquish her majority interest in Maxi-Aids by April 30th, 1994?

A: No. I never met with a representative from the Veterans Administration.

Q: You signed this statement, sir, which says that in order to induce your sister Pamela Stein to relinquish her majority in Maxi-Aids by April 30th, 1994, a certain sum was to be paid to her; isn't that correct?

A: I don't recall what is on that statement. Q: Let me read the first paragraph, sir. "On retirement of Elliot Zaretsky on May 31, 1993, and in order to induce Pamela Stein to relinquish her majority in Maxi-Aids by April 30th, 1994, the sum of blank dollars will be paid to her, payee, and as of May 1, 1994, Harold Zaretsky will become the majority stockholder"; that's your statement, is it not, sir, in the first paragraph? A: I am not familiar with this document.

Q: You are not familiar with it, but you signed it?

A: I sign tons of things.

Q: Did you read this document before you signed it, sir?

A: I don't recall.

Q: Do you normally sign a document entitled "guaranty" without reading it?

A: I sign a lot of things without reading it.

Q: A guaranty, sir?

A: Even guaranties, yes.

Q: And who asked you to sign it?

A: I don't recall when it was signed.

Q: It is dated May 25, 1993. Do you see that, sir?

A: It has a date on it, yes.

Q: According to the documents we have in evidence, your sister didn't even own one share of Maxi-Aids as of the date of this guaranty; isn't that correct, sir?

A: I am not sure.

Q: Do we have to go through the K-1's again for '91, '92, '93, '94 that we brought in evidence? [The K-1 is a tax form filed by shareholders in small companies indicating the extent of their holdings.]

A: On the K-1's, yes.

Q: Your sister didn't own one share?

A: The K-1's show that just Harold, Elliot, and myself own shares, yes.

Q: Mr. Zaretsky, what was this document signed for if your sister didn't even own one share as of May 25, 1993? A: As I stated, I don't recall that document. Q: Your attorney produced during the course of the discovery your stock minutes and stock transfer ledger and your stock certificate receipt book; is that right, sir? A: Yes.

Q: Initially, when the stock was issued in the beginning of the corporation, your sister had 50 shares, then it was changed to 33 and a third as of what looks like 5/15/86, correct? A: Yes.

Q: And Harold as of the same date, who originally had 50 shares, had his reduced to 33 and a third also; isn't that correct, sir? A: Yes.

Q: And Mitchel, and that's you, who also had 50, had that changed to 33 and a third as of the same date, 5/15/86; is that correct? A: Yes.

Q: It looks to us from the stock book, which are the official corporate records, your sister, Harold, and you each owned a third as of 5/15/86, correct?

A: Way back in '86.

Q: Way back in '86?

A: Way back in '86.

Q: Okay. Then your father as of 1/1/88 got the 33 and a third shares in the company, and presumably that was transferred by Pamela Stein because that sheet says canceled, correct? A: You can presume—

THE COURT: Is that in evidence?

MR. DWECK: I will offer it now.

THE COURT: Do not show it to the jury.

MR. DWECK: Sorry, your Honor. I would like to offer this in evidence, your Honor.

THE COURT: Show it to counsel.

MR. MULHOLLAND: I have no objection to it.

THE COURT: I don't hear the number.

MR. DWECK: 111, your Honor.

THE COURT: Is that a stock transfer book? MR. DWECK: These are, as the combined exhibits, it looks like the corporate minutes with a copy of the certificate of incorporation of Maxi-Aids, with a copy of the by-laws, with a specimen stock certificate, with some shareholders' minutes meeting— shareholder meeting minutes, and with the stock receipt from the stock receipt book or from the stock book, which I was just questioning Mr. Zaretsky about, and blank stock certificate number five.

THE COURT: Plaintiff's Exhibit 111 in evidence.

(Plaintiff's Exhibit 111 received in evidence.) Q: Mr. Zaretsky, the certificate on the receipt page as part of this 111 exhibit shows that the 33 and a third shares of Pamela Stein were canceled; is that right, sir? A: It shows they were canceled, yes.

Q: And presumably it was canceled as of the date that your father took over the 33 and a third shares, which is 1/1/88, correct? A: I don't know when, so I can't assume.

Q: You see your father's share was issued on 1/1/88, correct?

A: Yes.

Q: That we see?

A: That we see.

Q: So we see the 33 and a third share to you and your brother Harold; the receipt doesn't say canceled, does it, sir? A: No, it doesn't.

Q: But the one to Pamela says canceled?

A: Yes.

Q: Then certificate number four was issued to your father as of 1/1/88; is that correct?

A: Originally it was 50 shares, crossed out to 33 and a third, yes.

Q: Okay. Mr. Zaretsky, as of the time that your sister's stock certificate was canceled, she didn't own a single share in Maxi-Aids, correct?

A: Can you repeat that?

Q: I said, as of the time that that stock certificate was canceled, that was issued to your sister, she did not even have a single share of ownership in the corporation; isn't that right, sir?

A: I honestly don't know.

Q: Well we know that as of '92, '93, '94, she didn't have a single share; isn't that right, sir?

A: According to the K-1's, yes.

Q: So sometime between '88 and '92, presumably something took place where your father took over the one-third interest that Pamela had, agreed?

A: No.

MR. DWECK: Your Honor, I would call for production of the K-1's for the years 1986 through 1991 inclusive on behalf of Maxi-Aids. We have subpoenaed them, your Honor.

THE COURT: Do you have those records?

MR. MULHOLLAND: We don't have them here today, no, Judge.

THE COURT: Do you want to bring them here tomorrow?

MR. MULHOLLAND: Surely. If they exist, Judge. THE COURT: If they exist. You are going to keep a record of all these things, Mr. Dweck?

MR. DWECK: We are.

THE COURT: I am not.

MR. DWECK: That's why we have Mr. Hubell, Mr. Sandler, and Dr.

Berman [Marvin Sandler's wife].

Q: Mr. Zaretsky, isn't it a fact that your sister sold her shares in the company, and the company paid her out? A: She sold shares, and she was paid.

Q: Your sister received $833.33 on a monthly basis over a number of years; isn't that right, sir?

A: I don't recall the exact number, but she received, yes. Q: And that was the monthly basis that she was paid out; is that correct?

A: She was paid. I am not sure of the timing, yes. Q: Okay. I show you this document, Maxi-Aids check $833.33. The first one is dated, it looks like 8/6/92. Do you see that check number 14539, $833.33, correct?

A: Yes.

Q: And you signed that check?

A: Yes.

Q: And the next check 10/29/92, a check 14736, the same amount, Pamela Stein, correct?

A: Yes.

Q: The first check was signed by you, and the next one signed by your father, correct?

A: Yes.

Q: And then after that, I am sorry, it looks like March 12th or March 6th, 1412 check number, the same amount, Pamela Stein, correct?

A: It is cut off, but yes.

Q: In April of '92 the same amount, same person, check number 14215, to Pamela Stein?

A: Yes.

Q: August of '92, check number 14594 to Pamela Stein, same amount, is that correct?

A: Yes.

Q: Signed by your father?

A: Yes.

Q: And then we have one in January '92, $833.33, correct?

A: Yes.

Q: And that check is marked stock sale?

A: Yes.

Q: Pamela Stein?

A: Yes.

Q: Does that refresh your recollection that your sister sold her shares at least, and as of at least January of '92, she was being paid out at the rate of $833.33 every month? A: Yes, it says stock, yes.

MR. DWECK: Your Honor, these checks, on eight pages, and consist of 23 checks, I would like to offer it as Plaintiff's Exhibit 112.

THE COURT: Show it to counsel.

(Whereupon, at this time there was a pause in the proceedings.)

THE COURT: Any objection?

MR. MULHOLLAND: No, Judge.

THE COURT: Plaintiff's Exhibit 112 in evidence. MR. DWECK: Correct, Judge. (Plaintiff's Exhibit 112 received in evidence.)

Q: Mr. Zaretsky, can we agree, sir, that some of these checks are signed by you, and some signed by your father? A: It appears, yes.

Q: And can we agree that the earliest of these checks as they appear on these copies date back to 1992? A: Some date back to '92, yes.

MR. DWECK: I am sorry, I was remiss, and I left two pages out which I would respectfully request to be added to that exhibit. I was mixed up.

THE COURT: Show it to counsel. (Counsel confer.)

THE COURT: Any objection?

MR. MULHOLLAND: No, Judge.

THE COURT: You will add the two pages to Plaintiff's Exhibit 112 in evidence.

MR. DWECK: Thank you, your Honor.

Q: With the admission of these two pages, Mr. Zaretsky, can we agree, sir, that the first of the checks issued to your sister is January 3rd, 1992?

A: You said that was June of '92 before. Q: Well, we have one in April, and we have one in March; is that correct?

A: March of '92, yes.

Q: Okay. Can we agree from March of '92, right into '94, where some of those checks continue, your sister was paid out on the sale of her stock in Maxi-Aids, yes?

A: She was paid out on stocks.

Q: Mr. Zaretsky, when you were questioned on a deposition on September 10th, 1996, did you give these answers to these questions, page 55, line 11--

MR. MULHOLLAND: Objection.

THE COURT: What ground?

MR. MULHOLLAND: Foundation. I don't know where we are going with this, Judge.

THE COURT: I have to see a copy of the transcript.

MR. DWECK: Just the portion I highlighted, your Honor.

(Handed to the Court.)

THE COURT: Overruled. I will allow it.

MR. DWECK: Thank you, your Honor.

Q: Did you give these answers to these two questions, sir:

Question: Mr. Zaretsky, did your sister Pamela ever transfer her shares in Maxi-Aids?

Answer: I don't recall.

Question: Did your sister Pamela ever sell her shares in Maxi-Aids?

Answer: I do not know.

Did you give those answers to those questions, sir?

A: I believe I did.

Q: Mr. Zaretsky, when you signed this guaranty for whatever purpose you signed it for, your sister had no ownership of shares in Maxi-Aids as of May 25, 1993, correct? MR. MULHOLLAND: Objection.

THE COURT: Sustained.

MR. MULHOLLAND: Thank you.

Q: Mr. Zaretsky, when you signed this guaranty which said: On the retirement of Elliot Zaretsky as of May 31, 1993, and in order to induce Pamela Stein to relinquish her majority in Maxi-Aids by April 30th, 1994, the sum of blank dollars will be paid to her— she never owned the majority, did she, sir? MR. MULHOLLAND: Objection.

THE COURT: Overruled.

A: According to the K-1's, no.

Q: And according to the stock receipts in your own stock book, she didn't either, did she, sir?

A: No.

Q: So this statement was false, wasn't it, sir?

A: I mean I don't recall that document.

Q: This statement was false, wasn't it, sir?

A: Again, I don't recall that document. Q: Did you ever tell anybody that the statement that you signed on this guaranty about your sister relinquishing her majority interest was false, sir?

A: No.

A Question of Character

Setting aside, if that is possible, the formidable body of evidence of Maxi-Aids' shoddy business practice amassed during this trial, there is an interesting and significant collection of statements that shed light on the characters of the people involved. For example, Milton Kaye, who worked at various times for the American Foundation for the Blind, Vis-Aids, and ILA developing and designing catalogs, offered two interesting comments. He was a witness for the defense because he believed that he had certainly had a strong impact on the content of the ILA catalog and that he always brought much of the work he had done previously when he came to a new company. In the following interchange Jack Dweck is cross-examining Mr. Kaye:

Q: Mr. Kaye, being the dean in the industry as Mr. Mulholland described you before, you were successful in getting a recognition for the ILA name in the two or three or four years that you were there, weren't you, sir?

Q: Yes, that's true. Let me say this. My chief, my one aim was not to make money for anybody. My one aim was always to get the prices down on these aids and appliances for the blind. They were being very badly treated, and I got a free hand from Ernie Sandler [Marvin Sandler's brother, who was running ILA in the early eighties], and I was able to do this. The name of ILA became a blessing in the industry, and it was certainly recognized as having done a great job for the blind and low vision.

Q: Mr. Kaye, the success that you achieved was in getting the prices down, correct?

A: That's right.

That shows pretty decisively what Mr. Kaye thought of ILA when it came on the scene. Now here is his comment when Mulholland tried to question him on redirect examination about the numbering system used to identify the various products in vendor catalogs. At the time under discussion in this excerpt, Kaye was working for Vis-Aids at a point when Elliot Zaretsky was a partner. Kaye had apparently said during his deposition that he was responsible for the product numbering in the Vis-Aids catalog while he was there. Here is the testimony:

Q: Let me show you some numbers from some of the products in this compilation that Mr. Dweck has put together, some of the product numbers. Do you see the Lux long-ring timer, which is on page 2 of his compilation?

A: Yes.

Q: What is the product number there in the ILA catalog?

A: 450755.

Q: And that is the product number, sir, that you are not sure how it was created, correct?

A: No, obviously not.

Q: At your deposition you testified that you had created those numbers, but today you are saying you don't recall? A: Right.

Q: Mr. Kaye, I'm handing you the 1985--I'm sorry, 1985 Vis-Aids catalog, and I have it opened to page 10. This is from 1985, sir. Is the Lux long-ring timer shown on that page?

A: Yes.

MR. MULHOLLAND: And so the jury can follow, sir, this is Defendant's Exhibit AD in evidence.

Q: Mr. Kaye, in the Vis-Aids Lux long-ring timer ad, what is the product number?

A: The first digits have been changed.

Q: Read the whole number.

A: Instead of 450755 in that catalog it is D50, D as in David 50755.

Q: Mr. Kaye, were you involved in the process of substituting a D for the 4 for the first letter in the ILA numbers? A: I'm going to retract my statement. I don't think I would be that devious, I'm sorry. I don't think I was involved. I would have changed it a little more radical. I would have made a little more radical change rather than just one digit.

One of the more disillusioning themes running through this trial was the repeated six-cent margin by which Maxi-Aids bested ILA on seven watches in five different bids in recent years. The jury was clearly impressed enough with this recurring alleged coincidence to comment on it in its damage award of two million, four hundred thousand dollars and six cents. In fact, after the completion of the trial, Marvin Sandler reports that he met members of the jury in the hall and thanked them for their conscientious service. He says that the foreperson shook hands with him and said, " I hope you liked the six cents. We tagged it on to let them know that we know."

Attorney Mulholland did his best to undercut the significance of the repeated six-cent difference by calling attention in his cross-examination of Marvin Sandler to a number of bids through the years in which he, too, had beaten competitors by very small amounts. Mr. Mulholland's efforts crumbled into disaster for his clients in this exchange between Jack Dweck and Marvin Sandler during redirect examination on the subject:

Q: Mr. Sandler, I direct your attention, sir, to Exhibit B.

A: I have it.

Q: Wasn't this the bid that Mr. Mulholland was questioning you about being a penny or two pennies or five pennies cheaper than another bidder?

A: Yes.

Q: Who was the other bidder, Mr. Sandler, on this solicitation? A: Actually there were two of them. One is an organization known as the American Printing House for the Blind. The second is an organization called the Howe Press, which is a division of the Perkins School for the Blind.

Q: And those are both organizations operated by or for the blind, is that right, sir?

A: Yes.

Q: Nonprofit?

A: They are both not-for-profit organizations. Q: And you are a profit-making organization; is that correct, sir?

A: Well, there's a debate on that; we are a for-profit company. Q: Mr. Sandler, you were bidding against two not-for-profit organizations on the sale for product?

A: Yes.

Q: I direct your attention, Mr. Sandler, to the second page of that Exhibit B.

A: Yes.

Q: Do you see on the bottom third of the page, the category is books, recorders, accessories?

A: Yes.

Q: ILA bid on the first item $14.94.

A: Yes.

Q: And the American Printing House for the Blind bid a penny more than you, $14.95.

A: That's correct.

Q: Is there an explanation as to how you were a penny cheaper?

A: Yes, there is.

Q: Would you share it with us?

A: The American Printing House for the Blind and let me to save time say that the Perkins School for the Blind also published a price list, each of them are one-price houses. If you buy one unit, ten units, or 10,000 units you pay the same price. No matter who bid or buys that book, or in this case the abacus, their price is $14.95. I bid $14.94 and lost a penny on every single one.

Q: How did you lose a penny, sir?

A: Because I paid them the full price of $14.95, and I sold them to the State of Texas for $14.94.

Q: Let me understand something, Mr. Sandler. You bought this product, the abacus from American Printing House for the Blind, at $14.95, and you listed it and bid $14.94? A: That's correct.

Q: You are in business to make money?

A: Also in business to do what I feel is the right thing. Q: How do you explain, sir, bidding a penny cheaper on that product?

A: It requires a bit of an explanation. I've testified to the fact that I do volunteer work at the Helen Keller National Center. This is a center that is located in Sands Point, and it is used as a training center for people who are deaf and blind both. I do volunteer work there. I also employ deaf-blind people in a work-experience program, I have a relationship with them, I know them. When somebody goes to the Helen Keller National Center, their transportation is paid for. They stay there anywhere from six months to three years doing their training while they train to be independent. At the end of their six months to three-year period, their transportation is paid back home, and hopefully the job situations are established for them. During that period, if they want to go home for the holidays, if they want to see a relative, if they have any reason at all to go home, it is not paid for; they have to do it themselves.

I saw that, and in 1987 or '89, I forget, I wrote to American Airlines. I am an American Airlines Advantage card holder. The Advantage program is a program under which, when you fly, you get mileage credit which can be saved up for free tickets. Many credit card companies also allow you to charge a credit card and get miles on a specific airline, and I happen to use the American Airlines Advantage. So I wrote to American Airlines, and I said you've got people here who are deaf and blind. You have other people who are accumulating miles. Wouldn't it be a nice thing and wouldn't it also be good publicity for American Airlines if we were to allow people to contribute their miles to give free tickets to deaf-blind people to go home, and I just think it would be a nice thing. American Airlines turned me down.

I tried again two years later, and I got turned down again, and then I decided to do something about it myself. Now I can give you a more dramatic example. A Perkins Brailler, which is made by the Howe Press, Perkins division, currently sells for $640. I bid $639.95. I lose a nickel on every one. Forty of them are worth about $25,000. On $25,000 worth of merchandise, I lose 40 nickels, that's $2, but that gives me 25,000 miles, and I take those 25,000 miles and, when somebody from Helen Keller needs to fly home, I give them a free ticket. And I feel that is a win, win, win, win—four wins—situation. The American Printing House for the Blind or the Perkins School for the Blind gets their money in full, and they get it immediately. Texas, or whoever I bid to, gets the item a little bit cheaper, a few pennies, but nonetheless cheaper than they otherwise would have to pay. Number three, a deaf-blind person can go home. Number four, I feel good.

Now I have letters of appreciation from Helen Keller. I have some of them written by deaf-blind people, some written by their counselors, some written by the head of Helen Keller thanking me for my contribution for the tickets, and that's why I bid a few pennies lower, and throughout all of these bids you will find I'm anywhere from a penny to a nickel cheaper than the American Printing House for the Blind or the Perkins School for the Blind. Q: Mr. Sandler, how many items did you underbid either Howe or American Printing House for the Blind on that bid alone? A: I'll have to count. Twenty for the American Printing House for the Blind, and six for the Howe Press division of the Perkins School for the Blind.

Q: Mr. Sandler, roughly how many miles did you generate from your credit card purchases from APH and from the Howe School, that you used for contributions to provide people's transportation? A: I've been averaging about 200,000 miles per year.

Q: How many tickets does that amount to?

A: Eight.

Q: And there's no strings, no fees?

A: To a blind person, no.

Contrast the impression that story gives of Marvin Sandler with the impact of Bill Ankenbrant's testimony of his telephone conversations with Elliot Zaretsky. Ankenbrant owns and operates New Vision, a small retail outlet carrying products for blind and visually impaired people in Philadelphia. It used to be owned by Associated Services for the Blind and was called Sensations. Jack Dweck's assistant counsel Richard Hubell is questioning Mr. Ankenbrant.

Q: Did you ever receive a call from someone from Maxi-Aids concerning Independent Living Aids?

A: Yes.

Q: And who called you?

A: Mr. Elliot Zaretsky.

Q: And when did he call you?

A: I am not great with dates. It was a November, prior to an article in the Braille Monitor regarding Maxi-Aids, either the same November or the November prior to it. Q: And did Mr. Zaretsky identify himself during that telephone conversation?

A: Yes.

Q: What did he say to you, and you say to him during that telephone conversation?...[discussion between the judge and the attorneys resulting in Mr. Hubell's being allowed to continue with his line of questioning]

A: Well, basically, Mr. Zaretsky said to me that he wanted to let me know that the NFB was very upset with ILA and another company and that he was giving me the feeling that, it was sort of advice, that I should be very careful, being that New Vision is a small store, and Sensations was a small store, and when I worked for Sensations, I was pretty low on the totem pole, if I would deal with ILA, AFB would be mad at me. [obviously a slip of the tongue]

Q: AFB would be mad at you is what you said?

A: Yes.

Q: Did anyone else say anything else during that telephone conversation that you can recall?

A: I am not sure. That's the brunt of it.

THE COURT: What is AFB?

A: National Federation of the Blind, they are a famous group, a watchdog for rights of the blind. For instance, if a restaurant doesn't admit a blind person with a guide dog, they will make sure that the restaurant is aware of the blind person's rights to use a guide dog in any facility.

Q: Subsequent to the telephone conversation that you had with Mr. Zaretsky, did you find out whether or not what he told you during that conversation was true?

MR. MULHOLLAND: Objection.

THE COURT: I don't understand that question.

MR. HUBELL: I will rephrase it, Judge.

Q: What did you do after the telephone conversation with Elliot Zaretsky?

A: What did I do with Elliot or what—

Q: What did you do after the conversation? A: Well, I was a bunch younger then and insecure because, you know, I was working for a company, and being they are a social services company I never felt they completely—that I completely understood retail. I was very nervous. So I spoke to the man who started the store for the Associated Services for the Blind. THE COURT: Never mind what he told you, sustained. MR. MULHOLLAND: I move to strike about being nervous and young, et cetera.

THE COURT: I will let that stand. Your motion is denied.

Q: Did you ever find out whether or not NFB was upset with ILA?

MR. MULHOLLAND: Objection.

THE COURT: Sustained. When you see—I am sorry. When you hear the objection, don't answer.

THE WITNESS: Okay.

THE COURT: All right.

Q: Did you ever read the article that was published in the NFB?

A: Yes.

THE COURT: What article are you referring to, the article that has been the subject of a lot of discussion? MR. HUBELL: That's correct.

MR. MULHOLLAND: Objection.

THE COURT: Did he read it?

MR. HUBELL: That's correct.

THE COURT: Sustained.

Q: Did you ever listen to the article?

MR. MULHOLLAND: Objection.

THE COURT: How is that relevant?

MR. HUBELL: It goes to the conversation, Judge, that Mr. Zaretsky had with Mr. Ankenbrant.

THE COURT: No, it doesn't. Sustained. Nothing to do with the conversation.

Q: Did you continue to do business with ILA?

A: Yes, I did.

Q: And why?

A: Well, I was given a copy of the Braille Monitor. MR. MULHOLLAND: Objection. Move to strike any testimony concerning the Braille Monitor article. It is not in evidence yet.

THE COURT: Sustained.

Q: Prior to coming to court today, have you spoken to Elliot Zaretsky?

A: Yes.

Q: When was the last time you spoke to Elliot Zaretsky?

A: Not very long ago.

Q: Can you recall the date?

A: I am sorry, I am not great with dates. THE COURT: Was it a year ago, two years ago, a day ago, a month ago?

THE WITNESS: Less than a month ago, I guess—within two weeks, maybe three.

THE COURT: You are not too bad, after all; I mean at judging dates.

THE WITNESS: Thank you.

Q: Did you call Mr. Zaretsky?

A: No.

Q: Did he call you?

A: The last time. But it was in a group of three, four phone calls. The last time I called him.

Q: Can you describe the last conversation you had?

A: Yes.

Q: Who called?

A: I answered the phone, New Vision. And Mr. Zaretsky identified me, and then he identified himself. And he seemed very upset with me. And his words were, I understand you are going to be in New York. What did we ever do to you? What did I ever say to you? I basically said that I didn't feel comfortable talking about it. Q: Did he say anything else during that telephone conversation? A: He said we have always treated you—he either used the word "good" or "nice." I told him again I really didn't feel comfortable talking about it.

Q: Did you terminate the conversation?

A: Unfortunately, yes.

Q: How did you terminate the conversation? A: I told him I really don't feel comfortable. I am going to go now. It is not my standard practice.

Q: What do you mean, it is not your standard practice?

A: I don't believe in cutting people off.

Q: Why did you cut Mr. Zaretsky off then?

A: I didn't feel comfortable. He seemed angry.

MR. HUBELL: Thank you, Mr. Ankenbrant.

Then there was Pamela Zaretsky Stein, who takes the prize for unresponsiveness and arrogance, considering the relative brevity of her testimony. She was determined to admit as little as possible and make Jack Dweck work as hard as possible for what he got. This is the way it went:

Q: Did you file income tax returns with the federal government for each of the years from 1990 through 1996 for the salary that you received from Maxi-Aids for the work you did there? A: Yes.

Q: Mrs. Stein, did you own stock in Maxi-Aids in 1996?

A: I don't recollect that.

Q: Was that a yes or a no?

A: I can't answer yes or no.

Q: How about for 1995, were you an owner of stock in Maxi-Aids?

A: That's not a yes or no answer.

Q: Well, how about for 1994, either you owned stock or you didn't. Can you answer that with a yes or no? A: No, I can't. It's not a yes or no answer. I really don't know.

I can't answer that.

Q: In 1993, Mrs. Stein, did you own stock in Maxi-Aids?

A: I don't know.

Q: How about in 1992?

A: I don't know.

Q: If I were to ask you the same questions for 1991 right back to 1986, what would your answer be?

A: The same answer.

Q: You don't know?

A: That's right.

Q: Mrs. Stein, were you ever issued a stock certificate for any shares in Maxi-Aids?

A: Not that I can recall.

Q: You know what a stock certificate is, do you not?

A: Somewhat.

Q: Did you ever get a piece of paper that said you owned so many shares in Maxi-Aids?

A: Not to my knowledge.

Q: Is that a no?

A: I said not to my knowledge.

Q: Well, Mrs. Stein, were you ever a stockholder in Maxi-Aids at any time from 1986 right up until now?

A: You would have to ask my father that. I did not handle that.

MR. DWECK: Move to strike, Your Honor.

THE COURT: Yes. Motion granted. Strike the answer as not being responsive. The jury is instructed to disregard it. Q: Mrs. Stein—

A: Yes.

Q: Did you or did you not ever own any stock in Maxi-Aids from 1986 right up until now?

A: I can't answer that yes or no. I don't know. Q: Well, Mrs. Stein, have you ever received checks for the sale of stock that you owned in Maxi-Aids?

A: Not to my knowledge.

Q: Mrs. Stein, I'm going to show you these documents which have been marked in evidence as Plaintiff's Exhibit 12. These are checks made out to you, are they not?

A: That's correct, yes.

Q: Did you receive these checks?

A: Yes, I did.

THE COURT: You say this is?

MR. DWECK: 112.

THE COURT: Okay.

BY MR. DWECK:

Q: Do you know what these checks were for, Mrs. Stein?

A: My belief was that they were salary checks. Q: Mrs. Stein, I show you this check from this same Exhibit 112, and the check number is 14023. That's made out to you, isn't it? A: Yes, it is.

Q: Do you see it says stock sale?

A: Yes, I see it. Yes.

Q: Were these checks for the sale of your stock? A: To my knowledge, it was for the work that I've done. I was not told otherwise.

Q: Did you ever sell stock in Maxi-Aids for which you received these checks?

A: That was for salary.

Q: So whoever wrote "stock sale" on the check, according to what your testimony is, made a mistake?

A: You have to ask them. I can only tell you what I know. Q: Well, when you saw this check, you got the money from this check, did you not?

A: Yes, that's correct.

Q: And you deposited the money into your account?

A: Yes.

Q: Did you tell anyone that the word "stock sale" was wrong? A: I never noticed that. I cashed that check for the work that I've done.

Q: So according to what you're telling us then, you never got paid for any stock in the company; is that right? A: My understanding is those checks were for services rendered.

Q: Did you ever get paid for the sale of your stock in Maxi-Aids?

A: Not to my knowledge.

Q: Did you ever have any stock in Maxi-Aids?

A: I really believe I did, but we were very informal.

MR. DWECK: Move to strike, Your Honor.

THE COURT: After the words "I really believe I did," strike out the rest of the answer. The jury is instructed to disregard it. Q: Ms. Stein, do you own stock in Maxi-Aids as of today?

A: I honestly don't know.

Q: Well, did you ever stop being a stockholder in Maxi-Aids?

A: I don't know.

Q: Ms. Stein, do you remember in the course of the discovery in this case that you were examined before trial? A: Excuse me? Repeat that, please?

Q: Do you remember that you were asked questions and answers in this case back on August 5, 1996?

A: What are we referring to?

Q: Do you know what a deposition is, Mrs. Stein?

A: Yes, but you did not say that.

Q: Well, do you remember attending a deposition?

A: Yes, I do.

Q: Do you remember Mr. Hubell from my office asked you questions during this deposition?

A: Yes, of course I do.

Q: And there was a stenographer present taking this down in shorthand; is that correct?

A: Yes, it is.

Q: At the time of your deposition you were under oath, do you remember that?

A: Yes.

Q: And you swore to tell the truth?

A: What I believe, yes.

Q: Mrs. Stein, did you give this answer to this question? Page 66, line 25.

"Question: Did a time come you ceased being a shareholder of Maxi-Aids?

"Answer: Not to my knowledge, sir."

Did you give that answer to that question? A: At that time, at that date, if that's what is stated, then I did.

Q: Mrs. Stein, were you or were you not ever a shareholder in Maxi-Aids?

A: I believe I was a shareholder.

Q: And, as of August 5, 1996, your testimony was you still continued as a shareholder; isn't that right? A: My understanding, yes. I really don't know. I can't answer that yes or no. That would be my answer. Q: Mrs. Stein, are you a shareholder today?

A: I don't know.

Q: Have you sold your shares from the day of this deposition, August 5, 1996, until today?

A: I don't know.

Q: Mrs. Stein, did you ever receive any W-2 forms for the work you did at Maxi-Aids from 1986 right through until 1996? A: I'm sure I did, but I don't recall every year. I don't know what you're trying to get at, you are talking about—say that again, please.

Q: Mrs. Stein, you know what a W-2 is?

A: Yes, I know.

Q: You are the bookkeeper for Maxi-Aids?

A: I am not.

Q: Did you ever handle the books?

A: Yes.

Q: Did you handle the payroll?

A: Payroll is not the same as bookkeeping.

Q: So you did handle the payroll?

A: Only the last two years.

Q: You know what a W-2 is?

A: I never said I didn't.

Q: Did you ever get paid from Maxi-Aids?

A: Yes.

Q: Every year?

A: Depends on the year. If I worked and I did not get paid, I don't get a W-2.

Q: But you worked for Maxi-Aids every year, didn't you?

A: I also worked for free.

MR. DWECK: Move to strike, Your Honor.

THE COURT: Yes. Motion granted. Strike out the entire answer as not being responsive. The jury is instructed to disregard it.

BY MR. DWECK:

Q: Mrs. Stein, you say these checks, Plaintiff's 112, were salary checks; is that right?

A: That's my understanding, yes.

Q: Were there any deductions taken from your salary that reflected itself in these checks?

A: You'd have to ask the person who made the checks. I don't have any idea.

Q: You mean to know if anybody took out withholding from your salary?

A: No, I don't. You'd have to ask the person.

Q: Mrs. Stein, do you know if FICA taxes were taken out? A: I understand that, but it could have been built into the check too. I don't know.

Q: Do you know if Social Security was taken out from your salary?

A: As I say again, I don't know.

Q: Do you know if state withholdings were taken out of your salary check?

A: And I'll tell you again. I don't know. I did not write the check.

MR. DWECK: Move to strike, Your Honor.

THE COURT: After the words "I don't know," the rest of the answer is stricken.

BY MR. DWECK:

Q: Mrs. Stein, when did you become a shareholder in Maxi-Aids? A: I believe in the very beginning, when it was started, but I don't really recall.

Q: Well, did you own shares in Maxi-Aids in 1991?

A: I don't know.

Q: How about in 1992?

A: I don't know.

Q: How about in '93?

A: I don't know.

Q: And would your answer be the same for '94, '95, and '96?

A: That's correct.

Q: How about for 1989 and 1990, Mrs. Stein?

A: The same.

Q: You don't know?

A: Right.

Q: How about the '88 area or '87?

A: I'll say again, the same.

Q: '86?

A: I believe that I was, but I really don't know. Q: Mrs. Stein, was your brother Harold ever a shareholder of Maxi-Aids?

A: I can only answer for myself.

MR. DWECK: Move to strike, Your Honor.

THE COURT: Motion granted. Strike the answer as not responsive.

BY MR. DWECK:

Q: Mrs. Stein, was your brother Harold ever a shareholder of Maxi-Aids?

A: I believe he was.

Q: When did he acquire any stock?

A: I don't know.

Q: Well, was he a shareholder in 1986?

A: I don't know.

Q: What about '87?

A: I don't know.

Q: And how about if I asked you for every year from '88 right up to '96, what would your answer be?

A: I don't know. You would have to ask him. Q: Mrs. Stein, you worked on the catalog for Maxi-Aids, did you not?

A: What year are we talking about?

Q: In any of the years you say you worked for Maxi-Aids.

A: You have to tell me the year.

Q: How about 1986?

A: Absolutely not.

Q: How about '87?

A: Absolutely not.

Q: '88?

A: Absolutely not.

Q: When was the first year you say you worked on the Maxi-Aids catalog?

A: Somewhere in 1995.

Q: And before that, did you ever work on any of the Maxi-Aids catalogs before '95?

A: Only for part of mine, but I did not get involved in the catalog, actual catalog.

Q: And you worked on the '95 catalog; is that right?

A: I didn't put it together. I got product line.

Q: Okay.

Mrs. Stein, when you worked on the catalog for Maxi-Aids, did you look at any of the competitors' catalogs? A: Absolutely not.

Q: Well, would you agree with me, Mrs. Stein, that ILA is a competitor of Maxi-Aids?

A: Absolutely not.

Q: They are not a competitor?

A: To me, no.

Q: Does Maxi-Aids have any competitors?

A: We stand alone.

"We stand alone." One certainly hopes that no other firm in the blindness field can compete with Maxi-Aids in all the various cut corners, shortcuts, tricks, double-dealings, and immoral practices laid out in the testimony of this trial. The Zaretskys did their best to suggest that Marvin Sandler single-handedly tried to destroy their livelihood and their good name in the blindness field. They claimed that they had lost money, but Jack Dweck produced evidence that their profits had doubled in the year following the Braille Monitor story. In the end the jury spoke clearly in rendering its verdict. Here is that verdict as read by the foreperson count by count in response to inquiries by the clerk:

THE CLERK: I will review the verdict with you and ask for your responses. As to the federal copyright infringement claim, question 1. Did the plaintiff Independent Living Aids prove that it changed the product listing from its non-copyrighted catalogs, so that the listing as changed in the copyrighted catalogs were removed from the public domain and were original and protected? THE FOREPERSON: Yes.

THE CLERK: Question two.

Did the plaintiff ILA prove that it is the owner of a valid registered copyright to the Independent Living Aids, Inc. catalogs to the years 1985 to 1995?

THE FOREPERSON: Yes.

THE CLERK: Question three.

Did the plaintiff ILA prove that the defendant Maxi-Aids, Inc. infringed the plaintiff's copyrights in its 1985 through 1995 catalogs by copying original product listings in any of the plaintiff's copyrighted catalogs?

THE FOREPERSON: Yes.

THE CLERK: Question four. Did the plaintiff ILA prove that the defendant Maxi-Aids acted willfully when it infringed the plaintiff's copyrights?

THE FOREPERSON: Yes.

THE CLERK: As to the federal trademark and service mark infringement claim. Question five. Did the plaintiff ILA prove that the term "Can-Do Products" is a suggestive term and does not require proof of secondary meaning?

THE FOREPERSON: Yes.

THE CLERK: Question six.

Did the plaintiff ILA prove that prior to any copying of the terms the plaintiff had so used each of the following terms so that it developed a secondary meaning, so as to associate that term with the plaintiff, Independent Living Aids? THE FOREPERSON: Yes.

THE COURT: There is no answer to Can-Do Products, correct?

THE FOREPERSON: Yes, correct.

THE CLERK: Question seven. Did the plaintiff ILA prove that the defendant Maxi-Aids in its advertising, catalog, and sales program used the following terms "Independent Living" "ILA" the ILA logo "Do More Products," "Maxi-Aids," and "Appliances for Independent Living" and "Maxi-Aids products for Independent Living" in a manner likely to cause confusion as to the source among persons using ordinary care in the purchase of the products sold by both companies? Independent Living. THE FOREPERSON: No.

THE CLERK: ILA.

THE FOREPERSON: No.

THE CLERK: ILA logo.

THE FOREPERSON: Yes.

THE CLERK: Do More Products.

THE FOREPERSON: No.

THE CLERK: Maxi-Aids and Appliances for Independent Living.

THE FOREPERSON: No.

THE CLERK: Maxi-Aids Products for Independent Living.

THE FOREPERSON: No.

THE CLERK: As to the federal trade dress infringement claim as to the watches. Question eight. Did the plaintiff ILA prove that the trade dress of its Slimline Lo-Vision watches were distinctive or had acquired secondary meaning?

THE FOREPERSON: Yes.

THE CLERK: Question nine. Did the plaintiff ILA prove that the defendant Maxi-Aids in its catalog and sales program advertised and sold its Ultima Low-Vision Watches in a manner likely to cause confusion as to the source among persons using ordinary care in the purchase of the watches?

THE FOREPERSON: Yes.

THE CLERK: Question 10. Did the defendant Maxi-Aids prove that the features of the plaintiff's Slimline Lo-Vision watches it allegedly copied and advertised are functioning, meaning that such features are essential to the basic purpose of such watches? THE FOREPERSON: Yes.

THE CLERK: Question 11. Did the plaintiff ILA prove that the following individual defendant was an actual participant in the infringement of the defendant Maxi-Aids or that the following individual defendant authorized or approved the acts of infringement or was a conscious moving force behind the infringements?

Harold Zaretsky.

THE FOREPERSON: No.

THE CLERK: Mitchel Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Elliot Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Pamela Zaretsky Stein.

THE FOREPERSON: Yes.

THE CLERK: As to the New York Deceptive Acts and Practices Claim. Question 12. Did the plaintiff prove that the defendant Maxi-Aids engaged in a materially deceptive act and practice with regard to the advertising and sales of its products? THE FOREPERSON: Yes.

THE CLERK: Question 13. Did the plaintiff prove that the primary injury resulting from the said deceptive act and practice was suffered by the public?

THE FOREPERSON: Yes.

THE CLERK: Question 14. Did the plaintiff ILA prove that it was injured by the said deceptive act and practice?

THE FOREPERSON: Yes.

THE CLERK: Question 15. Did the plaintiff ILA prove that the defendant Maxi-Aids acted willfully when it committed the deceptive act and practice?

THE FOREPERSON: Yes.

THE CLERK: As to the New York false advertising claim. Question 16. Did the plaintiff ILA prove that the defendant Maxi-Aids engaged in false advertising that was misleading in a material aspect with regard to the sale of their products? THE FOREPERSON: Yes.

THE CLERK: Question 17. Did the plaintiff ILA prove that it was injured as a result of such false material misleading advertisement?

THE FOREPERSON: Yes.

THE CLERK: Question 18. Did the plaintiff ILA prove that the defendant Maxi-Aids acted willfully when it committed the false advertising?

THE FOREPERSON: Yes.

THE CLERK: As to the New York State intentional interference with economic benefits claim. Question 19. Did the plaintiff ILA prove that the defendant Maxi-Aids knew that the plaintiff had made certain bids to the Veterans Administration in 1993 and 1994? THE FOREPERSON: Yes.

THE CLERK: Question 20. Did the plaintiff ILA prove that the defendant Maxi-Aids intentionally interfered with the plaintiff's bids?

THE FOREPERSON: Yes.

THE CLERK: Question 21. Did the plaintiff ILA prove that it would have been a successful bidder if not for the interference of the defendant Maxi-Aids.

THE FOREPERSON: No.

THE COURT: You didn't answer 22, correct?

THE FOREPERSON: Correct.

THE COURT: Let's go to 23.

THE CLERK: Question 23. Did the plaintiff ILA prove that the following individual defendant was an actual participant in the wrongful acts comprising the New York State claims or that the individual defendant authorized or approved of the wrongful acts or was a conscious moving force behind the wrongful acts? Harold Zaretsky.

THE FOREPERSON: No.

THE CLERK: Mitchel Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Elliot Zaretsky.

THE FOREPERSON: Yes.

THE CLERK: Pamela Zaretsky Stein.

THE FOREPERSON: No.

THE CLERK: As to the libel counterclaim of the defendants Maxi-Aids, Harold Zaretsky, Mitchel Zaretsky, and Elliot Zaretsky against plaintiff Marvin Sandler. Question 24. Did the defendant Maxi-Aids prove that the statements by Marvin Sandler in his letter dated January 17, 1994, sent to Dr. Jernigan, and published in the December, 1994, edition of the Braille Monitor were defamatory?

THE FOREPERSON: No.

THE COURT: Did you answer questions 25, 26, and 27?

THE FOREPERSON: No, Judge.

THE COURT: All right. Let's proceed to the damages question.

THE CLERK: Damages in the plaintiff's claims. Compensatory damages. Question 28. What amount of damages, if any, do you award to the plaintiff ILA for loss of business and profits as a result of any of the wrongful acts in the three federal and three New York State claims?

THE FOREPERSON: $2,400,000.06.

THE CLERK: As to punitive damages, question 29. In the intentional interference with economic benefits claim, do you award punitive damages in favor of the plaintiff ILA against the defendant Maxi-Aids?

THE FOREPERSON: No.

THE COURT: Do you answer any of the other questions?

THE FOREPERSON: No, Judge.

There you have the highlights of a trial that will probably remain a unique legal episode in the blindness field. The Zaretskys have submitted motions to Judge Spatt, and Marvin Sandler's attorney has responded. Each side gets another chance to respond to what its opponent has argued. Then the judge will decide whether or not to accept any of the Zaretskys' motions. If he does not, the Zaretskys will have to decide if they want to try an appeal. Since Mitchel Zaretsky would not speak to the Braille Monitor, we could not confirm Marvin Sandler's understanding that Mark Mulholland will not be serving as counsel to the Zaretskys during any possible appeals. Mulholland himself sidestepped the question by saying that the appeal process was still a long way in the future and that he is certainly the attorney of record at present.

Marvin Sandler makes no bones about the fact that he undertook this legal action because he thought it was in his own financial interest to do so. But in the next breath he adds that somebody had to let the world know what the Zaretskys think of their competitors and customers and how they are prepared to treat them. From now on no one in the blindness field can claim that they didn't know about Maxi-Aids and the way the Zaretskys do business—let the buyer beware.