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THEME PROMOTIONS v. NEWS AMERICA MARKETING FSI

Nos. 06-16230, 06-16341.

546 F.3d 991 (2008)

THEME PROMOTIONS, INC., a California corporation, dba Theme Co-op Promotions, Plaintiff-counter-defendant-Appellee, v. NEWS AMERICA MARKETING FSI, a Delaware corporation, Defendant-counter-claimant-Appellant. Theme Promotions, Inc., a California corporation, dba Theme Co-op Promotions, Plaintiff-counter-defendant-Appellant, v. News America Marketing FSI, a Delaware corporation, Defendant-counter-claimant-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed August 20, 2008.

Amended October 10, 2008.

Attorney(s) appearing for the Case

Eugene Crew, Nancy L. Tompkins, Holly Gaudreau, Townsend and Townsend and Crew, LLP, San Francisco, CA, Theodore T. Herhold, Townsend and Townsend and Crew, LLP, Palo Alto, CA, for the plaintiff/appellee/cross-appellant.

Gary J. Malone, Constantine Cannon, New York, NY, for the defendant/appellant.

Before: STEPHEN S. TROTT, SIDNEY R. THOMAS, and RICHARD A. PAEZ, Circuit Judges.

ORDER

The opinion previously filed in this case is amended as follows.

On pp. 11074-75 [539 F.3d 1046] of the slip opinion, the following sentence is inserted before the sentence beginning "News argues that the evidence actually shows....":

"Theme further presented evidence that, while the right of first refusal agreements purported to lower prices, prices could have been lower still if the market were rid of such...

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