Cisco, VAR Trade Barbs In Closing Arguments Of Contract Trial

Chippey told the jurors that Infra-Comm would have them believe Cisco and its representatives got together to hurt Infra-Comm and deprive it of an opportunity, and then come in an lie about it for four weeks.

Instead, Chippey said, Cisco has been doing its best to help Infra-Comm, but in the end Infra-Comm did not have the ability to carry out such a large project in the customer's eyes.

Chippey also said that there are no damages involved because Infra-Comm was unable to do the deal in the first place.

He also said Cisco was the victim. Because Infra-Comm did not pay for CROS services, it abused Cisco personnel, and it misappropriated Cisco intellectual property, he said.

Cisco personnel, rather than breaking any pledges to Infra-Comm, instead followed the Golden Rule, Chippey said. "They said they will support Infra-Comm until the customer says different," he said.

Cisco is in a very competitive business environment, with a lot of manufacturers and resellers vying for contracts, meaning the customer makes the decision, not Cisco, Chippey said. And Infra-Comm itself testified that the customer had other choices, he said.

However, the Irvine Company wanted the deal, which was the biggest in Infra-Comm's history, to be done with Cisco resources instead of taking a chance with the solution provider, meaning that Infra-Comm would never have gotten the deal in any case, Chippey said. Therefore, he said, the customer required Cisco to participate in the deal's Master Services Agreement, a requirement that was noted by Infra-Comm itself, he said.

The customer also told Cisco it had a "Plan B" if Cisco did not participate: It would consider working with the incumbent phone vendor, Nortel, Chippey said. And it testified that it told Cisco that AT&T was the only company with the technical resources to do the deal, he said.

"That wasn't coming from Cisco," he said. "That was coming from the customer."

Furthermore, because the customer chose to work with AT&T instead of Nortel, Infra-Comm actually benefitted by handling the "rack and stack" portion of the deployment, business it would not have otherwise received, Chippey said.

Cisco's deal registration plan does not provide exclusivity to Infra-Comm, and does not say Cisco cannot share the bill of material or talk about the deal with another reseller, Chippey said. It only prevents the disclosure of the identity of the registered partner and the terms of the offering, he said.

Cisco asserts that the bill of material was actually prepared by Cisco and sent to Infra-Comm, and that it was not based on any confidential information from Infra-Comm, Chippey said.

Regarding CROS, Chippey said that Infra-Comm agreed to provide the customer both canned and "ad hoc" reports per the customer request, but that the customer was dissatisfied with the service. Infra-Comm eventually pulled the plug on the service so that it would not be responsible for issues, and to pave the way for it to sign a different monitoring service for which it was paid much more than it made with CROS, he said.

Cisco also showed that Infra-Comm's attitude towards Cisco personnel became hostile, with Infra-Comm at one point writing, "Go to hell!" in email to Cisco, and otherwise intimidating Cisco personnel, Chippey said.

Furthermore, when asked by Cisco to propose a realistic proposal to solve the differences between the two companies, Infra-Comm did not respond, he said.

Chippey closed by looking at the damages requested by both parties.

Cisco is requesting damages of $1,063,998 due to unpaid CROS services and a CROS termination fee, Chippey said.

He also said that Infra-Comm's request for over $6 million in damages was excessive, amounting to 12 times the solution provider's total profits between 2000 and 2007. Also, he said, any damages should be limited to profits, not revenue.

In any case, Infra-Comm could only request damages for the first two phases of the multi-phase project for the Irvine Company, revenue for which totaled $1.6 million, not $6.43 million, he said.

And while Infra-Comm is not entitled to any damages by Cisco's thinking, if such damages were awarded, Chippey said that would only total between $505,052 and $1,022,787 according to the terms of deal registration and the ICPA.

Chippey also said that Infra-Comm did not take steps to protect its business because that would have been too expensive. Instead, he said, "they decided to invest in the lottery ticket of litigation and get money it couldn't get on its own."

The jury began deliberation late on Friday, and will continue its deliberation on Monday.