Sentences with phrase «settling defendant»

The Master went on to say that the settling defendant may even be required to give evidence so the court can assess the proportion of fault of the non-settling defendant.

On the other hand, if it «over-recovers» from the settling defendant (as in Bedard) it will not be allowed to keep the windfall.

If it settles and «under - recovers» from the settling defendant, it will not be able to make up that shortfall from the non-settling defendants.

Recently in Illinois, the state supreme court held that a counterclaim for contribution by joint tortfeasors following an injurious truck accident was rightly dismissed, despite defendants» claims that a prior settlement was not reached in good faith because the settling defendant's conduct was intentional.

If the settling defendant is based in a different jurisdiction than the plaintiff, the defendant should also consider including a choice of venue / jurisdiction provision and a waiver of personal service on the counterparty with respect to any complaint arising from breach of the settlement agreement (e.g., if a company based in San Francisco is sued in a Small Claims Court in New York and the San Francisco company agrees to settle the claim, it should consider including a provision in the agreement that the courts in San Francisco shall have exclusive jurisdiction over any disputes arising from the breach of the settlement agreement, and the counterparty submits to the personal jurisdiction of such courts).

Thus, if the fault of others, including the plaintiff, is reasonably evaluated to approximate 20 %, then the settling defendant should offer close to 80 % of the plaintiff's damages in settlement.

The settlement document actually says that there are some restrictions in customer discounts going forward, but that «such agreed restrictions shall not interfere with the E-book Retailer's ability to reduce the final price paid by consumers to purchase the Settling Defendant's E-books by an aggregate amount equal to the total commissions the Settling Defendant pays to the E-book Retailer.»

The settling publishers can also negotiate one - year contracts that «prevent e-book retailers from cumulatively selling that Settling Defendant's e-books at a loss over the period of the contract.»

There are a few exceptions: The settlement allows publishers the option to negotiate retailer contracts that include «a commitment from an e-book retailer that a retailer's aggregate expenditure on discounts and promotions of the Settling Defendant's ebooks will not exceed the retailer's aggregate commission» — though that doesn't prevent deep discounts on specific titles.

In May, as it negotiated a new contract with Hachette Book Group (a settling defendant in the ebooks price - fixing case), Amazon pulled the preorder buttons on most Hachette titles, stopped recommending its authors» works, and burdened Hachette's books with artificial delivery delays.

For example, one Settling Defendant's CEO e-mailed Macmillan's CEO to tell him, «I can ensure you that you are not going to find your company alone in the battle.»

The date on which the Settling Defendant notifies the E-book Retailer in writing that the Settling Defendant will not enforce any term (s) in its agreement with the E-book Retailer that restrict, limit, or impede the E-book Retailer from setting, altering, or reducing the Retail Price of one or more E-books, or from offering price discounts or any other form of promotions to encourage consumers to Purchase one or more E-books.

D. Each Settling Defendant shall furnish to the Department of Justice (1) within seven days after entry of this Final Judgment, one complete copy of each agreement, executed, renewed, or extended on or after January 1, 2012, between the Settling Defendant and any E-book Retailer relating to the Sale of E-books, and, (2) thereafter, on a quarterly basis, each such agreement executed, renewed, or extended since the Settling Defendant's previous submission of agreements to the Department of Justice.

This provision, which works with Sections V.A and V.B (which enhance retailers» ability to set e-book prices), allows a Settling Defendant to prevent a retailer selling its entire catalogue at a sustained loss.

Section VI.B permits a Settling Defendant to negotiate a commitment from an e-book retailer that a retailer's aggregate expenditure on discounts and promotions of the Settling Defendant's e-books will not exceed the retailer's aggregate commission under an agency agreement in which the publisher sets the e-book price and the retailer is compensated through a commission.

After the expiration of prohibitions in Sections V.A and V.B of this Final Judgment, this Section V.D shall not prohibit any Settling Defendant from unilaterally entering into or enforcing any agreement with an E-book Retailer that restricts, limits, or impedes the E-book Retailer from setting, altering, or reducing the Retail Price of any of the Settling Defendant's E-books or from offering price discounts or any other form of promotions to encourage consumers to Purchase any of the Settling Defendant's E-books.

A. Within seven days after entry of this Final Judgment, each Settling Defendant shall terminate any agreement with Apple relating to the Sale of E-books that was executed prior to the filing of the Complaint.

The notification requirements of this Section IV.C shall not apply to ordinary course business arrangements between a Publisher Defendant and another E-book Publisher (not a Publisher Defendant) that do not relate to the Sale of E-books to consumers, or to business arrangements the primary or predominant purpose or focus of which involves: (i) E-book Publishers co-publishing one or more specifically identified E-book titles or a particular author's E-books; (ii) a Settling Defendant licensing to or from another E-book Publisher the publishing rights to one or more specifically identified E-book titles or a particular author's E-books; (iii) a Settling Defendant providing technology services to or receiving technology services from another E-book Publisher (not a Publisher Defendant) or licensing rights in technology to or from another E-book Publisher; or (iv) a Settling Defendant distributing E-books published by another E-book Publisher (not a Publisher Defendant).

If the Department of Justice makes such a request, the Settling Defendant shall not proceed with the planned formation or material modification of the joint venture or business arrangement until thirty days after substantially complying with such additional request (s) for information.

If at the time information or documents are furnished by a Settling Defendant to the United States, the Settling Defendant represents and identifies in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26 (c)(1)(G) of the Federal Rules of Civil Procedure, and the Settling Defendant marks each pertinent page of such material, «Subject to claim of protection under Rule 26 (c)(1)(G) of the Federal Rules of Civil Procedure,» then the United States shall give the Settling Defendant ten calendar days notice prior to divulging such material in any civil or administrative proceeding.

Within thirty days after a Settling Defendant provides notification of the joint venture or business arrangement, the Department of Justice may make a written request for additional information.

The Antitrust Compliance Officer must distribute a copy of the proposed Final Judgment to the Settling Defendant's officers, directors, and employees (and their successors) who engage in the licensing, distribution, or sale of e-books.

As outlined in Section VII, as part of the compliance program, each Settling Defendant must designate an Antitrust Compliance Officer.

The termination of an agreement between the Settling Defendant and the E-book Retailer that restricts, limits, or impedes the E-book Retailer's ability to set, alter, or reduce the Retail Price of any E-book or to offer price discounts or any other form of promotions to encourage consumers to Purchase one or more E-books; or

This Section V.F shall not prohibit a Settling Defendant from communicating (a) in a manner and through media consistent with common and reasonable industry practice, the cover prices or wholesale or retail prices of books sold in any format to potential purchasers of those books; or (b) information the Settling Defendant needs to communicate in connection with (i) its enforcement or assignment of its intellectual property or contract rights, (ii) a contemplated merger, acquisition, or purchase or sale of assets, (iii) its distribution of another E-book Publisher's E-books, or (iv) a business arrangement under which E-book Publishers agree to co-publish, or an E-book Publisher agrees to license to another E-book Publisher the publishing rights to, one or more specifically identified E-book titles or a particular author's E-books.

For purposes of this Final Judgment, it will not constitute a Price MFN under subsection 3 of this definition if a Settling Defendant agrees, at the request of an E-book Retailer, to meet more favorable pricing, discounts, or allowances offered to the E-book Retailer by another E-book Publisher for the period during which the other E-book Publisher provides that additional compensation, so long as that agreement is not or does not result from a pre-existing agreement that requires the Settling Defendant to meet all requests by the E-book Retailer for more favorable pricing within the terms of the agreement.

A. Furnishing a copy of this Final Judgment, within thirty days of its entry, to each of the Settling Defendant's officers and directors, and to each of the Settling Defendant's employees engaged, in whole or in part, in the distribution or Sale of E-books;

For each such agreement that the E-book Retailer has not terminated within thirty days after entry of this Final Judgment, each Settling Defendant shall, as soon as permitted under the agreement, take each step required under the agreement to cause the agreement to be terminated and not renewed or extended.

A. Nothing in this Final Judgment shall prohibit a Settling Defendant unilaterally from compensating a retailer, including an E-book Retailer, for valuable marketing or other promotional services rendered.

An e-book retailer that enters an agency agreement with a Settling Defendant under Section VI.B would be permitted to discount that Settling Defendant's individual e-book titles by varying amounts (for example, some could be «buy one get one free,» some could be half off, and others could have no discount), as long as the total dollar amount spent on discounts or other promotions did not exceed in the aggregate the retailer's full commission from the Settling Defendant over a one - year period.

Specifically, this Section prohibits a Settling Defendant from punishing an e-book retailer because the Settling Defendant disapproves of the retailer discounting or promoting e-books.

A Settling Defendant (including each officer of each parent of the Settling Defendant who exercises direct control over the Settling Defendant's business decisions or strategies) shall not convey or otherwise communicate, directly or indirectly (including by communicating indirectly through an E-book Retailer with the intent that the E-book Retailer convey information from the communication to another E-book Publisher or knowledge that it is likely to do so), to any other E-book Publisher (including to an officer of a parent of a Publisher Defendant) any competitively sensitive information, including:

B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Settling Defendants shall submit written reports or respond to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.

This Court has jurisdiction over the subject matter of this action and over the Settling Defendants.

And whereas, Settling Defendants have represented to the United States that the actions and conduct restrictions can and will be undertaken and that they will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the provisions contained below;

And whereas, this Final Judgment does not constitute any admission by Settling Defendants that the law has been violated or of any issue of fact or law, other than that the jurisdictional facts as alleged in the Complaint are true;

Written reports authorized under this paragraph may, in the sole discretion of the United States, require Settling Defendants to conduct, at their cost, an independent audit or analysis relating to any of the matters contained in this Final Judgment.

H. Furnishing to the Department of Justice on a quarterly basis electronic copies of any non-privileged communications with any Person containing allegations of Settling Defendants» noncompliance with any provisions of this Final Judgment;

Because these communications occurred among some of the parent companies of the Publishing Defendants, Section V.F also applies to those parent company officers who directly control Settling Defendants» business decisions.

Section V.C prohibits Settling Defendants, for five years, from entering into an agreement with an e-book retailer that contains a Price MFN.

And whereas, Settling Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;

In addition, Settling Defendants must, upon written request, prepare written reports relating to any of the matters contained in the proposed Final Judgment.

To interview, either informally or on the record, the Settling Defendants» officers, employees, or agents, who may have their individual counsel present, regarding such matters.

R. «Settling Defendants» means Hachette, HarperCollins, and Simon & Schuster.

However, Section V.D expressly recognizes that, after the expiration of the two - year period described in Sections V.A and V.B, the anti-retaliation provision does not prohibit Settling Defendants from unilaterally entering into and enforcing agency agreements with e-book retailers that restrict a retailer's ability to set or reduce e-book prices or offer promotions.

Sections V.A and V.B of the proposed Final Judgment prohibit Settling Defendants, for two years after the filing of the Complaint, from entering new agreements with e-book retailers that restrict the retailers» discretion over e-book pricing, including offering discounts, promotions, or other price reductions.

Nothing in this Final Judgment shall limit the right of the United States to investigate and bring actions to prevent or restrain violations of the antitrust laws concerning any past, present, or future conduct, policy, or practice of the Settling Defendants.

The proposed Final Judgment, submitted at the same time as the Complaint, requires the settling defendants — Hachette Book Group, Inc., HarperCollins Publishers L.L.C., and Simon & Schuster, Inc. — to return pricing discretion to e-book retailers and comply with other obligations designed to end the anticompetitive effects of the conspiracy.

Settling Defendants must also make available their personnel for interviews regarding such matters.

E. Settling Defendants shall not enter into or enforce any agreement, arrangement, understanding, plan, program, combination, or conspiracy with any E-book Publisher (including another Publisher Defendant) to raise, stabilize, fix, set, or coordinate the Retail Price or Wholesale Price of any E-book or fix, set, or coordinate any term or condition relating to the Sale of E-books.