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13
On April 8, 2015, PEI filed a Motion to Amend the Judgment pursuant to Fed. R. Civ. P. 59(e), in which
it asked that the Judgment be amended to include (i) the entry of a permanent injunction; (ii) an award of
pre-Judgment interest in the amount of $4.9 million; (iii) an award of post-Judgment interest in the amount
of $11,441 and continuing to accrue at the rate of 0.25% while the case proceeds; (iv) doubling of the
damages award to $121.4 million; and (v) the entry of an order directing the Patent and Trademark Office
to dismiss the cancellation proceedings that U-Haul filed, which sought cancellation of the PODS
trademarks. On April 27, 2015, U-Haul filed its opposition brief arguing, among other things, that (1) PEI
is not entitled to recover double the windfall the jury incorrectly awarded it; (2) PEI is not entitled to the
overreaching injunction it seeks; (3) PEI is not entitled to pre-judgment interest; (4) PEI has overstated
the amount of post-Judgment interest to which it is entitled; and (5) PEI’s request that the Court order the
Trademark Trial and Appeal Board to dismiss U-Haul’s cancellation proceeding is premature.
On April 9, 2015, U-Haul filed a protective Notice of Appeal. We expect that this notice of appeal will
be automatically stayed and will become effective upon the disposition of (1) U-Haul’s renewed motion for
judgment or a new trial or alteration of the Judgment or (2) PEI’s motion to alter or amend the Judgment,
whichever comes later.
On August 24, 2015, the trial court entered two orders resolving the parties' post-trial motions. In
short, U-Haul’s efforts at setting aside the judgment, getting a new trial or reducing the amount of the jury
award were denied, PEI’s motions to enhance (i.e., double) the jury award and receive an award for
attorneys’ fees were denied, but the Court entered a permanent injunction, and awarded PEI $4.9 million
in pre-judgment interest, $82,727 in costs, and post-judgment interest at the rate of 0.25%, beginning
March 11, 2015, computed daily and compounded annually. This was recorded as an accrual of $5.0
million in our financial statements during fiscal 2016.
On September 4, 2015, U-Haul filed in the trial court its (i) amended notice of appeal, (ii) motion on
consent of PEI to approve the bond and stay execution of the judgment pending appeal, and (iii) motion
to stay or modify the injunction.
On September 8, 2015, the trial court entered an Order granting U-Haul’s Motion on Consent to
Approve Bond and Stay Execution of Judgment. The Judgment, as amended by the trial court’s orders
adding an award of costs and pre-judgment interest, is stayed pending resolution of appeals.
On October 15, 2015, the trial court denied U-Haul’s motion to modify or stay the injunction pending
appeal. But in the process, the Court clarified that (i) the reach of the injunction is limited to
“advertising, promoting, marketing, or describing any products or services” and (ii) use of the terms “pod”
and “pods” in comparative advertising is not prohibited, thereby allowing “nominative fair use" and truthful
communications in customer dialogue and making clear that “nothing in the injunction mandates
censorship with respect to consumer comments.”
PEI’s deadline for filing a notice of cross-appeal was September 23, 2015, and PEI did not file a notice
of cross-appeal.
On September 23, 2015, the Eleventh Circuit Court of Appeals granted the parties’ joint motion for an
extension of time for filing their respective briefs on appeal. U-Haul’s initial brief was due on December
17, 2015, PEI’s response brief was due on March 16, 2016, and U-Haul’s reply was due on April 29,
2016.
On September 24, 2015, the Eleventh Circuit Court of Appeals issued a Notice setting a telephonic
mediation for November 16, 2015, beginning at 2:00 p.m., Eastern Time. The mediation was
unsuccessful.
U-Haul filed its opening brief on appeal with the Eleventh Circuit Court of Appeals on December 17,
2015. PEI filed its response brief on March 16, 2016. U-Haul filed its reply brief on April 29, 2016. U-Haul
has requested oral argument, PEI did not oppose that request, and the Eleventh Circuit Court of Appeals
has not yet acted on that request.