Accounting Expert was Allowed to Opine on the Fair Market Value

Upper Deck claimed that Pixels has marketed and sold wall décor featuring images that infringe upon Upper Deck’s trademarks and Michael Jordan’s name, image, likeness, and publicity rights. Basically, Upper Deck brought this action pursuant to an exclusive agreement with Jordan (the “Jordan Agreement”) for the use of his name, image, likeness, and other publicity rights. Upper Deck asserted that the agreement also gives Upper Deck the right to commence actions on behalf of Jordan for infringement of the rights assigned in the Jordan Agreement.

Amongst other things, Upper Deck alleged violation and deprivation of the right of publicity, violations of the Lanham Act, registered trademark infringement, violation of California’s Unfair Competition Law, and California common law unfair competition. 

Christian Tregillis was retained as a damages expert by Upper Deck to opine on the fair market value of Pixels’ alleged unauthorized use of Jordan’s rights. Pixels filed a motion to exclude Tregillis’ testimony, contending that his methodology is unreliable and based upon insufficient facts and data.

Pixels also contended that the premium multiplier Tregillis uses in his fair market value calculation is unreliable and that Tregillis’s two “Evidence Indicates” opinions are irrelevant.

Accounting Expert Witness

Christian Dale Tregillis holds an M.B.A. in Finance and Accounting. He has more than thirty years of experience analyzing financial, accounting, economic, statistical, and market issues, primarily relating to disputes, valuations, and license agreements covering intellectual property rights.

Tregillis has held leadership positions with many public accounting and licensing professional groups. He is also accredited in Business Valuation and certified in Financial Forensics, Public Accounting, and Licensing.

Want to know more about the challenges Christian Tregillis has faced? Get the full details with our Challenge Study report.

Discussion by the Court

A. Methodology

Tregillis calculated the fair market value of Pixels’ use of Jordan’s rights by analyzing comparable licenses for rights similar to those used by Pixels as a starting point to construct a hypothetical license.

Tregillis then adjusted the value of the benchmark comparable license to account for the other athletes included in the benchmark license, the length of time of Pixels’ use, and the fact that Pixels’ use of Jordan’s rights was not subject to any quality assurance or approval clauses. Pixels argued that the benchmark agreement chosen by Tregillis is insufficiently comparable and that Tregillis made improper assumptions to inflate the value of the benchmark license.

1. Underlying Facts and Data

Tregillis determined the Trends Agreement to be the most comparable to the facts at issue here and uses this agreement as the benchmark for his hypothetical license analysis. The Trends Agreement was a licensing agreement between Brevettar, described as “the exclusive licensing agent for Upper Deck,” and Trends International, LLC. The Trends Agreement granted Trends a license to manufacture, distribute, and sell collector’s edition posters and calendars featuring the name, image, likeness, signature, and statistical data of Michael Jordan, Wayne Gretzky, and Tiger Woods. A later amendment to the Trends Agreement also allowed Trends to sell canvas wall décor.

Pixels argued that the Trends Agreement is an improper comparable because Upper Deck was not a party to it, Upper Deck did not receive royalty payments from the agreement, and the Trends Agreement was not effective until two and a half years after Pixels alleged unauthorized sales began.

Here, the Trends Agreement concerned the same rights at issue in this case, Jordan’s name, image, likeness, and publicity rights. Further, the Trends Agreement covered the same types of products as those at issue here—posters, calendars, and wall décor. The Trends Agreement also covered products similarly priced to those sold by Pixels. Consequently, the Court found the Trends Agreement sufficiently comparable to serve as a reliable basis for the hypothetical license analysis Tregillis conducts.

2. The Premium Multiplier

After identifying the Trends Agreement as the best benchmark for his hypothetical license analysis, Tregillis used a premium multiplier to adjust for the fact that Pixels’ use of Jordan’s rights was not authorized and not subject to the quality assurance and approval clauses typically included in Jordan’s licensing agreements.

Tregillis calculated this multiplier by comparing two similar situations where Jordan’s rights were used, one of which was authorized (the “Hanes Transaction”) and one of which was unauthorized (the “Panini Settlement”). ) Tregillis compared the values of those transactions to calculate the percentage premium for unauthorized uses of Jordan’s rights.

Pixels argued that the application of this premium multiplier is unreliable and that the Hanes Transaction and Panini Settlement are not reliably comparable to the conduct at issue here.

Tregillis demonstrated the necessity of this premium adjustment by discussing Jordan’s carefully tailored brand and restrictive approach to licensing agreements.

Then, Tregillis conducted a comparative analysis using otherwise analogous transactions to calculate the value of unauthorized uses of Jordan’s rights. This analysis is grounded in evidence, and Tregillis’s application of his analysis logically follows. Therefore, the premium multiplier calculation and its application to the hypothetical license are sufficiently reliable to present to a jury. 

Tregillis spent paragraphs of his report, supported by citations to the record, discussing the Hanes Transaction and Panini Settlement as well as how he used them in his analysis.

Tregillis did not use the Hanes Transaction and Panini Settlement as comparable to this case for the purpose of hypothetical license analysis; rather, he uses them in a comparative analysis to determine the value of Jordan’s rights when their use is not subject to any quality assurance or approval clauses.

B. The “Evidence Indicates” Opinions

Tregillis offered two “Evidence Indicates” opinions. First, “Evidence indicates that, as Upper Deck values its relationship with Jordan, one of the world’s most iconic athletes and personalities, Upper Deck protects both its rights and Jordan’s rights, while also ensuring it only produces and/or approves high-quality products that feature appropriate and value-enhancing uses of Jordan’s rights of publicity and trademarks.” And second, “Evidence indicates that the use made by Pixels is unauthorized and would not have been authorized by Jordan and/or Upper Deck.” Pixels argued that these opinions are irrelevant and should be excluded.

The Court found that the two “Evidence Indicates” opinions will aid the jury in understanding Tregillis’ hypothetical license analysis. The “Evidence Indicates” opinions shed light on the fair market value of Jordan’s rights as Pixels used them and demonstrate the necessity of the premium multiplier. More specifically, the opinions will help the jury to understand how Upper Deck and Jordan value Jordan’s rights and typically license them.

Pixels argued that the second “Evidence Indicates” opinion “is a naked attempt to elevate Upper Deck’s allegations of unauthorized use by Pixels into a liability opinion against Pixels.”

The Court agreed that Tregillis’ second “Evidence Indicates” opinion goes to brand standards and addresses how the fair market value of Jordan’s rights is impacted when subject to quality assurance and approval clauses.

However, grounding the second “Evidence Indicates” opinion in language about “authorization” toes the line of embodying a legal conclusion. Accordingly, while the Court found that Tregillis is not offering a legal conclusion, his testimony at trial should make clear that Tregillis is merely assuming Pixels’ liability for the purposes of his analysis and is offering opinions about authorization solely to support his damages analysis, not to offer a legal conclusion. 

Held

The Court denied Defendant Pixels.com’s motion to exclude the testimony of Plaintiff The Upper Deck Company’s expert witness, Christian Tregillis.

Key Takeaway:

Any lingering doubts as to the negative impact of Tregillis’s testimony can be managed by instructing the jury to follow only the judge’s instructions as to what the law is and to disregard any testimony that is inconsistent with those instructions.

Case Details:

Case Caption:	The Upper Deck Company V. Pixels.Com, LLC
Docket Number:	3:24cv923
Court Name:	United States District Court, California Southern
Order Date:	December 09, 2025