Watches

Watches

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.

The Slimline Lo-Vision watches that Martin

Sandler believed had been reproduced in the

1991 Maxi-Aids catalog and called

Ultima low-vision watches.

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.

t

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.