United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
CASE is before the Court on Defendants' Motion for
Gass and David Fanning founded SD3, LLC and SawStop, LLC in
August 2000. Both are attorneys. Mr. Fanning serves as a
general counsel for SawStop. Dr. Gass began contacting saw
manufacturers about AIMT in 1999. SawStop demonstrated a
prototype saw at a trade show in August 2000, and SawStop
began discussions with B&D, RBTC and Ryobi thereafter.
SawStop first visited B&D on October 11, 2000. According
to SawStop, B&D's Bill Taylor told Dr. Gass and Mr.
Fanning that B&D would consider partnering with other
power tool manufacturers regarding SawStop's AIMT.
October 11, 2000 meeting, Mr. Taylor allegedly expressed
concern that SawStop would try to get its AIMT mandated by
the Consumer Product Safety Commission and, SawStop claims,
told SawStop that the industry would get together and squish
them if they tried to go to CPSC. Also in October 2000
Ryobi's in-house counsel said that Ryobi should adopt the
technology as fast as they can.
November 10, 2000, SawStop demonstrated its AIMT to members
of the Power Tool Institute. Defendants are members of the
Power Tool Institute. After the demonstration, Dr. Gass told
the audience the terms on which SawStop would be willing to
license its AIMT and attendees asked questions. According to
Dr. Gass, after SawStop's presentation at the November
10, 2000 meeting ended, PTI lawyer Arthur Herold told the
group that they could not collude but have to make their own
decisions. And they all got up and went to the other room.
claims that it has at all times closely monitored industry
activity. Publicly available information in 2000 indicated
that Power Tool Institute members' combined share in
portable electric tools was over 79%. SawStop claimed in 2003
that PTI members, including Defendants, make nearly all the
table saws sold in the United States.
February 2001, Dr. Gass and Mr. Fanning attended a
presentation made by Daniel Lanier. Lanier was B&D's
national coordinating counsel for product liability
litigation. Mr. Fanning's notes recorded his belief that
Mr. Lanier was implying that he expects SawStop to be an
issue in products liability cases and that once one company
adopts it, all will have to. Mr. Fanning testified that the
takeaway from Lanier's presentation was that if none of
the manufacturers adopt something like the SawStop
technology, then, in these product liability cases, saw
makers can argue that the SawStop technology, or something
like it, is not viable and can use as evidence the fact that
nobody's adopted it. Dr. Gass reached a similar
conclusion. SawStop claims that limiting product liability
exposure was the motivation for the alleged conspiracy.
25, 2001, Dr. Gass spoke with Adan Ayala, an in-house patent
attorney at B&D. According to SawStop, Mr. Ayala reported
that former defendant Emerson Electric Company
("Emerson"), then a saw maker and PTI member, had
approached B&D about a joint venture. Two days later, Dr.
Gass spoke with John Remmers of RBTC. Mr. Remmers allegedly
told Dr. Gass that RBTC had talked with Delta and Emerson,
but that they had concerns about antitrust issues concerning
SawStop. In September 2001, Mr. Remmers allegedly reported to
Dr. Gass that RBTC had tried to feel people out on getting an
industry deal but there was not much interest in joint
development. On November 29, 2001, Dr. Gass was present at a
UL meeting where, he claims, the Defendants'
representatives in the working group voiced skepticism about
the efficacy of AIMT, and argued against the adoption of any
standard requiring the implementation of AIMT. According to
Dr. Gass, on January 3, 2002, B&D's Mr. Ayala gave
what Dr. Gass interpreted as a warning that SawStop should
cooperate more with existing manufacturers or risk having the
technology rejected by industry.
and 2002, B&D, RBTC, Ryobi and Emerson all engaged in
licensing discussions with SawStop. SawStop contends that, in
August 2001, Todd Huston from B&D told SawStop that
B&D had decided to move forward with SawStop and that it
was inevitable that they would reach an agreement. In
September 2001, Mr. Remmers told SawStop that RBTC would go
forward with the concept but needed more time. As of January
2002, a license agreement between Ryobi and SawStop was
seemingly reached, and Ryobi sent SawStop a signed license
agreement on January 18, 2002. Contacts with RBTC about
SawStop ended suddenly after an October 18, 2001 telephone
call with Mr. Remmers. In or around January 2002,
negotiations with Ryobi and Emerson collapsed. Ryobi did not
correct a minor ambiguity in the signed agreement and decided
not to further discuss licensing with SawStop. In the same
timeframe, Emerson cut off all license negotiations with
SawStop. B&D made a disingenuous license offer between
April and June 2002. Initial negotiations with Bosch, Ryobi,
B&D and Emerson had ended by June 2002.
eventually realized that his technology would never be
available on table saws unless he made and sold table saws
himself, so in the summer of 2002, the SawStop co-founders
decided to sell table saws. In February and April 2003, Dr.
Gass publicly stated that saw manufacturers had done
everything they could to avoid implementing the technology.
In 2004, Dr. Gass was interviewed for an article in his
hometown newspaper, The Oregonian. The article
reported Dr. Gass's claim that Defendants were colluding
to suppress his technology. It linked this alleged collusion
to a desire to avoid the product liability claims that could
result because they failed to adopt a technology that could
have prevented hand injuries. The article also expressed Dr.
Gass's belief that PTI's joint venture was designed
to squelch his technology or get around his patents.
Gass testified that he probably read The Oregonian
article when it was published. He described The
Oregonian article's reference to his belief that saw
makers were colluding as consistent with his sense of what
was going on at the time. In 2005, Inc. Magazine
reported Dr. Gass's recollection of Mr. Lanier's 2001
presentation was this: If we all stick together and don't
license this product, the industry can argue that everybody
rejected it so it obviously wasn't viable, thereby
limiting any legal liability the industry might face as a
result of the new technology. Product liability, the article
continued, is the main reason, Gass believes, that the big
tool makers are refusing to deal with him. Dr. Gass testified
that he is sure that he read the Inc. Magazine
article when it was published. SawStop distributed the
Inc. Magazine article to third parties, describing
it as probably the best article that outlines the history of
SawStop, especially in relation to the Power Tool Industry.
2006, SawStop inquired of antitrust counsel regarding a
potential antitrust claim against members of the Power Tool
Institute based on suspicions of collusion. SawStop's
suspicions were based on, among other things, actions by PTI
members concerning SawStop technology, responses to
SawStop's demonstrations, and actions in opposition to
active injury mitigation technology standards by UL or the
Consumer Product Safety Commission. Mr. Fanning explained
that over time, you develop a suspicion because one company
and then another company and then another company expressed
sentiments like "[w]e usually can squish you guys."
In that same year, SawStop had at least seventeen
communications with outside counsel seeking or providing
"legal advice concerning potential antitrust
Gass acted as an unpaid expert witness in at least fifteen
products liability cases brought against table saw
manufacturers, including Osorio v. One World Tech.,
Inc., No. 06-10725-NMG (D. Mass.), Kent v. Robert
Bosch Tool Corp., 06-CV-11555-RWZ (D. Mass.) and
Eddery v. Black & Decker Corp., No.
1:08-cv-10849 (D. Mass.). Dr. Gass initially hoped that these
product liability lawsuits would motivate saw manufacturers
to change their products to incorporate AIMT. In at least two
of the cases in which Dr. Gass acted as an expert witness
(Kent and Eddery), Boies Schiller, acting
as counsel for personal injury plaintiffs, alleged that the
plaintiff's injury could have been mitigated if saw
manufacturers had not "colluded" against awStop.
Boies Schiller remained one of SawStop's antitrust
counsel from no later than September 2006 through the date of
2008, Dr. Gass submitted a report in a products liability
case where he stated that he believed other manufacturers
agreed amongst themselves not to license the technology in an
attempt to avoid having to redesign their saws. In September
2008, Dr. Gass testified that he believed members of PTI
colluded to drive SawStop out of business or to avoid
licensing SawStop. On October 7, 2008, the plaintiff in
Kent submitted a publicly-available pretrial
memorandum to a federal district court in Massachusetts.
Boies Schiller served as counsel for the plaintiff in
Kent. In the pretrial memorandum's Statement of
the Evidence, the plaintiff in Kent stated that the
evidence demonstrated that ...