Friday, 1 August 2014

What is hybrid fact/expert witness?

In litigation, we typically assume that there are two types of witnesses: the fact witness who has direct knowledge of the issues in the case and the expert witness who will use her specialized knowledge, skill and/or experience to assist the judge and/or the jury understand the evidence. But oftentimes, these two witnesses are morphed into one — an expert in a particular field who has first-hand knowledge of, or involvement in, the underlying facts. This type of witness is called the hybrid fact/expert witness. The most-cited example of this hybrid witness is the treating physician but, there are many more examples in the commercial context — the employee accountant, engineer or scientist, among many others, who are experts in their particular fields and who may have familiarity with the facts of a particular case. Use of these types of fact/expert witnesses can enhance the effectiveness of the testimony they offer but, as recognized in Sullivan v. Glock, Inc., the disclosure requirements under Rule 26 of the Federal Rules of Civil Procedure can indeed become a “trap for the unwary.”

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Thursday, 31 July 2014

Whether conduct of SanDisk in restricting market to its authorised sellers alone amounts to violation of competition Act?

The present information was filed against and SanDisk Corporation alleging contravention of Sections 3 and 4 of the Competition Act, 2002 (Act). (OP 1) is an online portal (marketplace) wherein different sellers sell their wares by showcasing their products on the portal and the web portal in return charges commission depending upon the product category. It has tie-up with cargo/ logistic companies and they pick up the ordered consignment from the seller’s place and deliver it at the buyer’s address for a fee and the amount charged is credited to the sellers account depending on the payment cycle. SanDisk (OP 2) is manufacturer, distributor and seller of non-volatile memory drives or flash drive and storages devices of different capacities, SD cards, micro SD cards, solid state drives etc.
Informant pursuant to an online agreement with OP 1was started selling various products like pen drives, hard disks, laptops etc through the web portal. Sometime later, OP 1 stopped selling products of Informant and removed its product from display stating that as per the list provided by OP 2, only its authorized online channel partners could sell SanDisk items through its web portal.
The Informant alleged OP 1 and OP 2 of acting in agreement to compel the Informant to become the authorized dealer of OP 2 contrary to terms of agreement between Informant and OP1 and in the process both OPs in collusion with each other are trying to stop the Informant from offering competitive pricing which was much below than the other sellers of the same product. OP 2 was also alleged of monopolising the market and influencing others to sell the products offered only by its authorized dealers. The letter circulated in this regard by OP 2 in the market was alleged as restricting the market to its authorized sellers alone however, the list of sellers of SanDisk products on the OP 1’s website indicated that OP 1 has allowed numerous sellers who infact were not the authorized dealers.
The Commission observed that both offline and online markets differ in terms of discounts and shopping experience and buyers weigh the options available in both markets and decides accordingly. If the price in the online market increase significantly, then the consumer is likely to shift towards the offline market and vice versa. Therefore, these two markets are different channels of distribution of the same product and are not two different relevant markets. It further observed that in the storage devices market there are other players as well offering product with different capacities which indicates that the market is not concentrated. SanDisk apparently was the market leader in the relevant market and also a market mover in terms of patented technologies, wide range of products and good brand image in the relevant market.
The insistence by SanDisk that the storage devices sold through the online portals should be bought from its authorised distributors by itself was held to be not abusive as it was within its rights to protect the sanctity of its distribution channel. In a quality-driven market, brand image and goodwill are important concerns and it appears a prudent business policy that sale of products emanating from unknown/ unverified/ unauthorised sources are not encouraged/allowed. The conduct of SanDisk in issuing a circular asking for purchase through authorized dealer is a part of normal business practice and not abuse of dominance.
OP 1 on the other hand is not engaged in the purchase or sale of storage devices, but a web portal that enables those sellers who stock storage devices to sell such devices through its web portal for a commission. There are number of players present in the e-commerce market offering special discounts and deals. prima facie cannot be termed as a dominant player.
It was held that the conduct of SanDisk in restricting the market to its authorised sellers alone does not amounts to violation of Section 3 of the Act.  
C. No. 17 of 2014
COMPETITION COMMISSION OF INDIA (Case No. 17 of 2014) In Re: Mr. Ashish AhujaInformant And
1.,opposite party NO.1
2. SanDisk Corporation, Opposite Party No. 2 
Date: 19/05/2014
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Whether Universities will fall within ambit of definition of "consumer"?

The University employing thousands of employees has a contributory Provident Fund Scheme for its employees. The fund is maintained and administered by the University. This fund was invested by the University in one of the scheme with Unit Trust of India (UTI) with the reinvestment option of the dividend. The University contended that they were assured that the dividend income would be reinvested in further units at Net Asset Value (NAV) and on those units also, in any case, they were assured that they would get minimum return at specified rate of percent. 
The case of University was that UTI failed to honour the assurance of return at the rate of agreed percent and also committed breach of contract as UTI invested more than allowed percentage in equity markets due to which the NAV fell, which  and the same amounts to deficiency of services.
In the above background two issues arose before the Court, namely, whether the Universities fall within the ambit of the definition of "consumer" as laid down in Section 2(1)(d) of the Consumer Protection Act, 1986 (Act)  and that the "services" hired by them are not for any "commercial purpose"?
The Court observed that the words 'commercial purposes' would cover an undertaking the object of which is to make a profit out of the undertakings. In the present case the services of UTI were availed by the complainant for the betterment of their employees, that such an investment was made, and no benefit by way of profit was to accrue to the complainant. The intent of the Universities in the present dispute was not profiteering and the same was for benevolent interest. The investment was not made for the purposes of yielding any gain and hence in such circumstances the Universities would fall within the definition of "consumer" under the Act. In reference to determining whether there was any deficiency in services, it was held that the complainants have no case.
It was held as clearly stipulated in the 'terms of offer' that the maturity amount would depend on the NAV and that the same was guaranteed not to be below the per unit par value. All investments were subject to markets risks and fluctuations and an investor has to exercise due caution while investing any amount in any Scheme. Simply, because the maturity amount is below their expectations they cannot drag the service provider to Court for the same.
Civil Appeal Nos. 400 of 2007, 503 of 2008 and 4664 of 2009
Decided On: 09.07.2014
Appellants: Punjab University
Respondent: Unit Trust of India
Hon'ble Judges/Coram:C.K. Prasad and Pinaki Chandra Ghose, JJ.

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How to determine reasonable time for execution of sale deed when time is not essence of contract?

 Sri Sivasubramanium then relied upon the decision in Dr. Jiwan Lai and Ors. v. Brij Mohan Mehra and Anr. [1973]2SCR230 to show that the delay of two years is not a ground to deny specific performance. But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in ChandRani Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.
Supreme Court of India
K.S. Vidyanadam And Ors vs Vairavan on 6 February, 1997
Bench: B.P. Jeevan Reddy, S.B. Majmudar

Citation;1997 (1)SCR 993,AIR 1997 SC 1751 = JT 1997 (2) SC 375)
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