COMMITMENTS AND CONTINGENCIES | 9 Months Ended |
Sep. 30, 2013 |
Commitments and Contingencies Disclosure [Abstract] | ' |
COMMITMENTS AND CONTINGENCIES | ' |
(14) COMMITMENTS AND CONTINGENCIES |
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Operating leases |
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The Company leases office and warehouse space, office equipment, and mall cart locations under operating leases that expire through 2017. Future minimum rental payments required under the operating leases at September 30, 2013 are as follows: |
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Remaining 2013 | | $ | 305 | |
2014 | | | 953 | |
2015 | | | 661 | |
2016 | | | 617 | |
2017 and thereafter | | | 302 | |
Total | | $ | 2,838 | |
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For the three and nine months ended September 30, 2013, rent expense was $327 and $1,163, respectively. For the three and nine months ended September 30, 2012, rent expense was $493 and $1,335, respectively. Rent expense is recognized on a basis which approximates straight line over the lease term. |
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Commercial Litigation |
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Ricks v. Scott Huskinson et al., Third Judicial District Court, Salt Lake County, State of Utah, Civil No. 120907697. On November 15, 2012, Craig Ricks (“Ricks”) filed a lawsuit in Utah state court against the Company, its wholly owned subsidiary iFrogz, Inc., and others. Ricks subsequently abandoned his claims. On May 20, 2013, the court entered an order confirming the dismissal, with prejudice, of all claims asserted in the lawsuit. |
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Lorence A. Harmer, et al v ZAGG Inc et al, Third Judicial District Court, Salt Lake County, State of Utah, Civil No. 110917687. On September 20, 2011, Lorence A. Harmer, a former director of ZAGG and two of his affiliates, Harmer Holdings, LLC, and Teleportal, LLC, filed a lawsuit in Utah state court against the Company, Robert G. Pedersen II (“Pedersen”), Brandon T. O’Brien (“O’Brien”) and KPMG LLP. KPMG has subsequently been dismissed from the lawsuit. This case is discussed in greater detail in Note 11, Note Receivable. In their lawsuit, the plaintiffs allege that the defendants defamed Mr. Harmer, breached a Settlement Agreement and other agreements between the plaintiffs and the Company, and interfered with other rights of the plaintiffs. The Company has denied all of the material allegations made by the plaintiffs. On October 29, 2012, the Company filed a Counterclaim and Third-Party Complaint against Harmer, Holdings, Teleportall and third-party Global Industrial Services Limited asserting claims for breach of contract, deficiency, indemnity and attorneys’ fees, breach of the implied covenant of good faith and fair dealing, quasi contract, unjust enrichment, quantum meruit and declaratory judgment. On June 10, 2013, the court dismissed the plaintiffs’ claims for defamation, negligence, tortious interference, and interference with prospective economic relations and all claims against Pedersen and O’Brien. The Company believes the plaintiffs’ remaining claims of breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief to be without merit and intends to continue to vigorously defend against them. The plaintiffs have not yet made a specific damages claim. |
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ZAGG Inc v. Joseph Ramelli, Third Judicial District Court, Salt Lake County, State of Utah, Civil No. 120903188. On May 10, 2012, ZAGG filed a lawsuit in Utah State Court against Joseph Ramelli (“Ramelli”). The complaint alleged causes of action for defamation and false light, based on Ramelli’s authoring and causing to be published articles relating to ZAGG that contain false and defamatory statements. On October 17, 2013, ZAGG and Ramelli entered into a settlement agreement of ZAGG’s claims in the litigation. In the settlement agreement, Ramelli covenanted to never again make any comments whatsoever about ZAGG, or any person, entity, product or practice affiliated with ZAGG, and Ramelli provided a confession of judgment that can be enforced by ZAGG should Ramelli fail to perform any of his covenants under the agreement. Also, ZAGG and Ramelli exchanged mutual general releases. On October 22, 2013, the court entered an order dismissing the litigation. |
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Patent/Trademark Litigation |
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ZAGG Intellectual Property Holding Co. Inc. v. NLU Products et al, U.S. District Court, District of Utah, 2:11-cv-00517. The Company is the plaintiff in patent infringement litigation pending in Utah that seeks to enforce rights under United States Patent No. 7,957,524. The defendants in this case have raised defenses and, in some cases, asserted counterclaims against the Company, that seek declarations of unenforceability or non-infringement of the patent. These counterclaims do not assert any claims for affirmative relief, including claims for damages, against the Company, apart from a request for an award of costs and attorney’s fees to the prevailing party. Several of the defendants have settled with the Company. Litigation of this action has been stayed pending a reexamination of United States Patent No. 7,957,524 by the United States Patent and Trademark Office. This reexamination has led to the amendments to the claims of the patent, and the United States Patent and Trademark Office is expected to issue a Reexamination Certificate soon. In the opinion of management, the ultimate disposition of these patent infringement claims, including disposition of the counterclaims, will not have a material adverse effect on the Company’s consolidated financial position, results of operations, or liquidity. |
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ZAGG v. Trekstor, Regional Court, Dusseldorf, Germany. The Company brought suit in Dusseldorf, Germany against Trekstor for infringement of ZAGG design registrations for ZAGGmate keyboard case. The Company also brought claims for unfair competition. After the Company completed briefing of its claims against TrekStor and presented its case at oral argument, TrekStor filed a separate proceeding alleging that it is the owner of the ZAGGmate keyboard case design. This action was then stayed pending the resolution of TrekStor’s case against the Company. On July 23, 2013, Trekstor’s claims were dismissed and the Company was awarded its costs in that action. With this decision, the stay on this action should be lifted and the court should proceed to issue a decision regarding the Company’s claims. |
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Fuhu Inc. et al v. ZAGG Inc et al, Central District of California, CV 13-06317 PA (SHx). The Company is a defendant in a pending lawsuit alleging trademark infringement, false designation of origin, trademark dilution, and copyright infringement based on the Company’s identification of the plaintiff’s product on packaging for an accessory designed for the plaintiff’s product. The complaint was filed on August 28, 2013. This litigation is in its earliest stages. The Company has not yet answered or otherwise responded to the complaint but intends to vigorously defend itself against these claims. |
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Patent Acquisition |
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On August 31, 2010, Andrew Mason (“Mason”) filed a complaint against the Company claiming infringement of United States Patent Nos. 7,389,869 and 7,784,610 as a result of the Company’s invisibleSHIELD installation kits. On November 9, 2010, the Company, Mason and his company, eShields LLC (“eShields”) entered into an Asset Purchase Agreement (“Purchase Agreement”) under which a wholly owned subsidiary of the Company, ZAGG Intellectual Property Holding Company, Inc. (“ZAGG IP”), acquired all of the rights of Mason in (i) the patents which were the subject of the litigation (United States Patent Nos. 7,389,869 and 7,784,610) (the “Patents”), (ii) the patent application filed on August 13, 2010 (the “CIP Application”) and (iii) rights to sue for infringement of the Patents. |
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In consideration for the conveyance of Mason’s assets described above, the Company paid or conveyed to Mason the following: |
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(a) | a first payment of $200 by November 11, 2010, and a second payment of $150 after December 31, 2010; | | | |
(b) | five-year warrants (the “Warrant”) to purchase 750 shares of the Company’s restricted common stock at an exercise price equal to $8.53; provided that 500 of the Warrants are exercisable only upon the issuance of a patent from the CIP Application with at least one claim that satisfies the Claim Conditions (as defined below); | | | |
(c) | 70 shares of the Company’s restricted common stock; and | | | |
(d) | a fully paid-up, perpetual, non-exclusive license (granted to eShields), with limited rights to transfer or sublicense, for the Patents, and CIP Application, and any related patent applications. | | | |
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The Company also dismissed its claims asserted against Mason and eShields, and agreed to make additional payments to Mason if the United States Patent and Trademark Office (“USPTO”) issued a U.S. patent on the CIP Application that included at least a claim (i) with no limitations in addition to those in the original version of claim 1 of the CIP Application, (ii) that lacked any limitations regarding a solution, (iii) that lacked any requirement that any of the elements be “secured” within a package and (iv) any other specific structural or functional limitations on the package, other than a functional language, if required by the USPTO, that the package is configured to hold the other physical elements of the claimed package (the “Claim Conditions”). If the Claim Conditions were met, 500 of the Warrants would be immediately exercisable and the Company would also be required to: |
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(a) | pay Mason the sum of $500; and | | | |
(b) | issue to Mason 430 shares of the Company’s restricted common stock. | | | |
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If the Claim Conditions were not met, the Company would have no obligation to make the payment or issue the shares described in the preceding paragraph and Mason would not be able to exercise 500 of the Warrants (the “Contingent Obligations”). |
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On June 25, 2013, the USPTO allowed the CIP Application, which enables a patent to be issued upon payment of the issue fee. The Company informed Mason and eShields that it did not originally believe that the allowed claims of the CIP Application met the Claim Conditions. However, on September 4, 2013, the Company, Mason and eShields agreed to amend the original Purchase Agreement (the “Amended Purchase Agreement”) for the revised patent. The Amended Purchase Agreement provides that if the USPTO issues a U.S. patent consistent with the terms of the revised Claim Conditions, the Company would: |
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(a) | pay Mason the sum of $500; and | | | |
(b) | issue a certificate to Mason for 500 shares of the Company’s restricted common stock. | | | |
(c) | cause that the 500 Warrants previously issued but exercisable only upon the issuance of a patent from the CIP Application with at least one claim that satisfies the Claim Condition cannot be exercised at any time in the future. | | | |
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The Company paid the issue fee during September 2013 and made the requisite payments to Mason and eShields pursuant to the terms of the Amended Purchase Agreement. Accounting for the patent acquisition is further discussed in Note 5, Intangible Assets. |
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Class Action Lawsuits |
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James H. Apple, et al. v. ZAGG Inc, et al., U.S. District Court, District of Utah, 2:12-cv-00852; Ryan Draayer, et al. v. Zagg Inc, et al., U.S. District Court, District of Utah, 2:12-cv-00859. On September 6 and 10, 2012, two putative class action lawsuits were filed by purported Company shareholders against the Company, Randall Hales, Brandon O’Brien, and Cheryl Larabee, as well as Robert G. Pedersen II, the Company’s former Chairman and CEO, and Edward Ekstrom and Shuichiro Ueyama, former members of the Company’s Board of Directors. These lawsuits were subsequently amended by a complaint filed on May 6, 2013. The plaintiffs seek certification of a class of purchasers of the Company’s stock between October 15, 2010 and August 17, 2012. The plaintiffs claim that as a result of Mr. Pedersen's alleged December 2011 margin account sales, the defendants initiated a succession plan to replace Mr. Pedersen as the Company’s CEO with Mr. Hales, but failed to disclose either the succession plan or Mr. Pedersen's margin account sales, in violation of Sections 10(b), 14(a), and 20(a), and SEC Rules 10b-5 and 14a-9, under the Securities Exchange Act of 1934 (the “Exchange Act”). On March 7, 2013, the U.S. District Court for the District of Utah consolidated the Apple and Draayer actions and assigned the caption In re: Zagg, Inc. Securities Litigation, and on May 6, 2013, plaintiffs filed a consolidated complaint. On July 5, 2013, the defendants moved to dismiss the consolidated complaint. The Company intends to vigorously defend against the lawsuit. |
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Arthur Morganstern v. Robert G. Pedersen II et al., Third Judicial District Court, Salt Lake County, State of Utah, Civil No. 120908452; Albert Pikk v. Robert G. Pedersen II et al., U.S. District Court, District of Utah, Case No. 2:12-cv-1188; Rosenberg v. Robert G. Pedersen II et al., U.S. District Court, District of Utah, Case No. 2:12-cv-1216. On December 14, 2012, the first of three shareholder derivative complaints were filed against several of the Company’s current and former officers and directors. These complaints make allegations similar to those presented in the consolidated class action lawsuits, but they also assert various state law causes of action, including claims for breach of fiduciary duty, waste of corporate assets, unjust enrichment, and insider trading. Each of these derivative complaints seek unspecified damages on behalf of the Company, which is named solely as a nominal defendant against whom no recovery is sought. On February 26, 2013, the U.S. District Court for the District of Utah consolidated the Pikk and Rosenberg actions and assigned the caption In re ZAGG Inc. Shareholder Derivative Litigation, and on June 5, 2013, plaintiffs filed a consolidated complaint. The Company has not yet responded to these complaints. |
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In the fourth quarter of 2012, the Company received requests to provide documentation and information to the staff of the SEC in connection with a non-public investigation being conducted by the SEC’s Salt Lake City office. The Company believes the investigation includes a review of the facts and circumstances surrounding some of the same issues raised by the plaintiffs in the above lawsuits; specifically, whether the Company failed to disclose Mr. Pedersen's margin account sales or the alleged existence of a plan to have Mr. Hales succeed Mr. Pedersen as the Company’s CEO. The Company responded to these requests and is cooperating fully with the staff. The Company has chosen to disclose this non-public investigation due to the highly public nature of the lawsuits described above, which the Company intends to defend vigorously. |
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The Company is not a party to any other litigation or other claims at this time. While the Company currently believes that the amount of any ultimate potential loss for known matters would not be material to the Company’s financial condition, the outcome of these actions is inherently difficult to predict. In the event of an adverse outcome, the ultimate potential loss could have a material adverse effect on the Company’s financial condition or results of operations in a particular period. |
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The Company establishes liabilities when a particular contingency is probable and estimable. The Company has not accrued for any loss at September 30, 2013 in the condensed consolidated financial statements as the Company does not consider a loss to be probable nor estimable. The Company has contingencies which are reasonably possible; however, the reasonably possible exposure to losses cannot currently be estimated. |