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Case 3:08-cv-01166-IEG-POR

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] WILLIAM N. KAMMER [SBN 53848] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

CASE NO. 08-CV-1166 IEG (POR) HANSEN BEVERAGE COMPANY'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION Date: Time: Courtroom: September 15, 2008 10:30 a.m. 1

Hon. Irma E. Gonzalez

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TABLE OF CONTENTS PAGE(S) I II INTRODUCTION................................................................................................................. 1 THE FOUNDATION OF LIVING ESSENTIALS' OPPOSITION CRUMBLES .............. 1 Mahady's Declaration Has Patently Verifiable False Statements......................................... 1 Mahady's Statement.................................................................................................. 1 The Facts. .................................................................................................................. 1 Mahady's Next Statement. ........................................................................................ 1 The Fact..................................................................................................................... 2 Another Mahady Statement....................................................................................... 2 The Facts. .................................................................................................................. 2 Conclusions. .............................................................................................................. 2 Living Essentials Has Given the Court an Altered Version of the Blum Report. ................. 3 Blum's Sham "Clinical Study." ............................................................................................ 4 The National Advertising Division Investigation. ................................................................ 5 III IV LIVING ESSENTIALS CANNOT GET AROUND ITS LITERALLY FALSE ADS ....................................................................................................................................... 6 LITERALLY FALSE CASES DO NOT APPLY THE TRADITIONAL FOURFACTOR INJUNCTIVE RELIEF TEST.............................................................................. 7 Hansen's Sales Are Irrelevant. .............................................................................................. 9 Hansen Moved Promptly After Discovering Living Essentials' False Advertising. .......... 10 Living Essentials' Hardship is Immaterial. ......................................................................... 10 V CONCLUSION ................................................................................................................... 10

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Castrol Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir. 1993) .................................................................................................. 8, 9 Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312 (2d Cir. 1982) .................................................................................................... 10 Crawford v. Washington, 541 U.S. 36 (2004) .................................................................................................................... 6 eBay v. MercExchange, LLC, 547 U.S. 388 (2007) .................................................................................................................. 8 Hamilton et al. v. Williams, 2006 U.S. Dist. LEXIS 17134 (E.D. Cal. 2006) ....................................................................... 3 Harris Research v. Lydon, 505 F.Supp.2d 1161 (D. Utah 2007) ......................................................................................... 8 McNeil-PPC, Inc. v. Pfizer Inc., 351 F.Supp.2d 226 (S.D.N.Y. 2005) ............................................................................... 5, 9, 10 MyGym LLC v. Engle, 2006 WL 3524474 11 (D. Utah 2007) ...................................................................................... 8 Pom Wonderful, LLC v. Purely Juice Inc., 2008 U.S. Dist. LEXIS 55426 (July 17, 2008) ......................................................................... 7 Reno Air Racing Ass'n. Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006).................................................................................................... 8 Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002)...................................................................................................... 7 Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997).................................................................................................... 6 Time Warner Cable, Inc. v. Directv, Inc., 497 F.3d 144 (2d Cir. 2007).................................................................................... 8, 9, 10 U.S. v. Chaplin, 54 F. Supp. 682 (S.D. Cal. 1944) .............................................................................................. 3 OTHER AUTHORITIES 45 Code of Federal Regulation§ 46.101.......................................................................................... 2
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45 Code of Federal Regulation § 46.107......................................................................................... 2 45 Code of Federal Regulation § 46.109......................................................................................... 2 Wordsmythe Dictionary .................................................................................................................. 6

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I INTRODUCTION Living Essentials' opposition mirrors its 5-hour Energy® labels and ads--plausible at first; but, after review, misleading, and, in part, literally false. The core of Living Essentials' opposition is Mahady's declaration and Blum's "clinical study." Mahady's declaration, however, is riddled with demonstrably false statements and Blum's "clinical study," a materially altered version of which Living Essentials submitted to the Court, is a sham. With or without Mahady and Blum, Living Essentials still cannot overcome either the fact that its 5-hour Energy® name, labels and ads are literally false and the consequence that flows from that fact--an injunction. II THE FOUNDATION OF LIVING ESSENTIALS' OPPOSITION CRUMBLES Living Essentials pins its hopes on Mahady and Blum. Tested by facts, both fail. Mahady's Declaration Has Patently Verifiable False Statements. Living Essentials uses Mahady's second-hand declaration to baptize Blum's "clinical trial." The Court, however, does not have to wade through who has "better" science. Instead, if the Court compares but a few of Mahady's sworn statements with readily available, verifiable facts, the Court will see that the whole Mahady enterprise fails. Mahady's Statement. Mahady declared: "The Blum clinical trial of 5-hour ENERGY® was performed by Dr. James Blum, who is an Epidemiologist and Biostatistician at the University of New England Medical School."1 The Facts. Mahady's statement sounds impressive. Blum, however, is not on the faculty of the University of New England. The University of New England does not have a "Medical School."2 Mahady's Next Statement. "Approval to perform this study was obtained from the Institutional Review Board of
Mahady declaration, ¶ 8, emphasis added. Morrison declaration, ¶¶ 3 and 4. 08-CV-1166 IEG (POR) 1 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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the University of New England Medical School."3 The Fact. Approval from a noted medical school's IRB adds luster to Blum's "clinical trial," to say nothing of implied imprimatur. The IRB of the University of New England, however, never approved Blum's "clinical trial."4 The import of this misstatement may be greater than its fraud on the Court. A clinical trial on human subjects without prior IRB approval may be illegal.5 Another Mahady Statement. "The clinical site was located at the Southern Maine Research Center (independent medical research center) located at 344 Cumberland Street, Westbrook, Maine." The Facts. An "independent medical research center" with a prestigious-sounding name puts icing on Blum's cake. 344 Cumberland Street in Westbrook, however, houses Richard Stockwell's Maine Proctology Center. Further research on Dr. Stockwell, D.O. reveals: "complete office-based proctology including painless hemorrhoid care, laser and infrared technology, minimally invasive office surgery, high resolution anoscopy, condyloma(warts), cancer screening and prevention and constipation/pelvic floor dysfunction. In Business Since 1998." Under the Maine Proctology Center name are the words, "Southern Maine Research Center," but an office visit reveals that 344 Cumberland Street is just a doctor's office in a semirural suburb of Portland.6 There is no record whatsoever of any "independent medical research center" called "Southern Maine Research Center;" a Maine registry search on the business produced nothing.7 Anyone can paint a name on a sign, but a sign does not an "independent medical research center" make. Conclusions. Did Dr. Mahady deliberately lie? That the Court can decide. Does it mean that Mahady
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Mahady declaration, at ¶ 8. Id. at ¶¶ 3 and 5. 45 C.F.R. §§ 46.101; 46.107 and 46.109. Donnally declaration, ¶¶ 4-8. Id. at ¶ 9. 08-CV-1166 IEG (POR) 2 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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made sworn statements without checking fundamental facts? Absolutely. Does it mean that Mahady was willing--intending this Court to rely on her--to swear to anything Living Essentials put in front of her? Obviously. Does it mean that this Court can disregard the whole Mahady declaration as fundamentally untrustworthy? Certainly.8 Hansen could dissect Mahady's declaration, clause by clause; given her sworn misstatements, however, that exercise is unnecessary. But two points bear mention. Mahady criticizes Hansen's expert because--she repeatedly asserts--he did not have access to Blum's "clinical trial." Mahady is wrong--again. She apparently does not know that Blum's "confidential" "study" is online. Hansen had it before Living Essentials produced it.9 Ignorance, however, is no excuse for swearing to a "fact" if she did not know if it was true or not. Mahady says 24% of 5-hour Energy® users in the "clinical study" experienced a "crash." That is bad enough and demonstrates literal falsity. Mahady, however, misreads the report. The "Notes on the Crash" paragraph states that 24% of the 5-Hour users experienced a "ModeratelySEVERE crash." The Table states that 5-Hour users crashed 2.43 hours after reaching their peak energy level.10 In short, almost all of them necessarily experienced a crash, not just 24%. Her misinterpretation notwithstanding, Mahady still concludes that the "clinical study" supports the unqualified "no crash" claim.11 If Pfizer promoted a drug with "no side effects," when its own clinical study demonstrated that at least 24% of users suffered a specific side effect, no credible expert would tell a court that the drug has zero side effects. But Mahady does. Any support she might have provided just crumbled. Living Essentials Has Given the Court an Altered Version of the Blum Report. Living Essentials' use of Blum's May 11, 2007 "Final Report" is at best disingenuous; worse, a fraud on the Court. Living Essentials did not tell the Court about the online version of
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U.S. v. Chaplin, 54 F. Supp. 682, 687 (S.D. Cal. 1944) ("A witness false in one part of his testimony is to be distrusted in others."); Hamilton et al. v. Williams, 2006 U.S. Dist. LEXIS 17134, *19 (E.D. Cal. 2006) ("[W]here a person learns one representation is false, he may not assume other representations are true.") Kammer declaration, ¶¶ 2-7. The self-promoting Dr. Blum was seemingly more interested in publicity than any promised confidentiality--and sloppy as well. Kammer declaration, Exhibit 1, p. 24. Mahady declaration, ¶ 4. 08-CV-1166 IEG (POR) 3 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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Blum's report--perhaps because the "sealed" version it gave the Court has been altered by deletion in several critical respects from the version Blum published online. For example, the online report mandates randomized metabolic testing.12 The Court will search in vain, however, for any reference to metabolic testing in its version. Such metabolic testing is not only important; its absence, suspicious.13 The online report also mandates specific chi-square testing and regression analysis.14 These, however, are not included in what Living Essentials gave the Court. Their absence jeopardizes any reliability.15 Hansen also asks the Court to review Blum's claimed credentials and IRB approval in the version Living Essentials filed and compare them to Dr. Morrison's declaration about both Blum's claimed credentials and no IRB approval and to Donnelly's declaration about the Cumberland Street address. Living Essentials' filing an altered version of the May 11, 2007 "Final Report" under seal--without acknowledging the online version or that it had submitted an altered version--is grounds, at a minimum, for this Court to disregard Blum's report in toto. But there is more. Blum's Sham "Clinical Study." Living Essentials has at least three energy drink products, each with different ingredients.16 Hansen has several Monster Energy® drink products, also with different ingredients.17 Neither Blum, however, nor Mahady nor Living Essentials tells the Court which Living Essentials' product Blum says he compared to which Hansen product. This failure is not only less than forthright with this Court but it alone invalidates Blum's effort. Living Essentials had Blum conduct his "clinical trial" 3 years after 5-hour Energy® went
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Pages 3 and 27. "Those randomized for metabolic testing will have their initial metabolic test during the morning session;" "Since we need the subjects at the Clinic in the morning for the metabolic testing, all visits must be in the morning;" "There were several categories that did not show any differences between the drinks ... metabolic rates." Davis declaration, ¶ 3. Pages 6 and 7. "Regression models will be fitted using weight as a continuous variable and as a categorical outcome marker to determine if there are any additional confounders to report. These modes will be helpful in explaining the results if any of the baseline characteristics are either clinically or statistically different." Davis declaration, ¶¶ 4-6. Sacks declaration, ¶ 2. Id. at ¶ 4. 08-CV-1166 IEG (POR) 4 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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on the market to answer an NAD investigation;18 the "results" had to "fit" its 5-hour Energy® advertising claims. Even at that, Blum's "results" do not corroborate Living Essentials' false claims.19 However if this Court views this single "clinical trial"--only 42 participants, 40% of whom already used energy drinks (hence, bias) and who were told in advance what to expect (inevitable bias)-- the flaws of which are obvious,20 the results hurt, not help, Living Essentials. Fewer than 60% of subjects using 5-hour Energy® claimed any "energy" that lasted for 5 hours; 24% experienced a moderate to severe "crash;" almost all "crashed" to some extent.21 The National Advertising Division Investigation. Living Essentials touts the NAD investigation; it is hard to understand why. 22 Even if NAD had conducted a proper investigation and analyzed Living Essentials' "clinical trial," it would be irrelevant. In McNeil-PPC,23 the American Dental Association--an independent entity, not just a trade group--approved Listerine's advertising claims that it worked "as well as floss." That notwithstanding, because the statement was literally false, the court enjoined the commercial. Living Essentials cannot hide behind NAD's findings. If, however, one considers the NAD report, it hurts Living Essentials' position. First, NAD stated the obvious--"this study [from Blum's "clinical trial"]did not support [Living Essentials] unqualified claims that 5-hour Energy results in "no" crash effect."24 NAD told Living Essentials to stop its "no crash" claim. Living Essentials still has not. Next, Living Essentials was able to fool NAD on all its claims--including the 5-hour duration--because none of its
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National Advertising Division of the Better Business Bureau. Any "clinical trial" a manufacturer buys to ward off a false claims investigation where the "clinical trial" is designed to prove claims of a manufacturer's golden egg that has already been on the market for years is inherently skewed, especially where the provenance of the "clinical trial" is itself suspect--false statements about the credentials of the "lead investigator," about medical school IRB approval and about the "independent medical research center" that supposedly performed the "clinical trial." Davis declaration, ¶ 2. See p. 3, above. NAD is the advertising industry's self-regulating arm. News Release p. 1 Exh. B to Henderson Declaration., Docket No. 25, Attachment No. 22. NAD targeted 5-hour Energy® and investigated nine advertising claims, some at issue here: "Drink it in seconds. Feel it in minutes. Lasts for hours;" "Hours of energy now. No crash later ­ and no jitters;" "Just one quick drink and you'll get hours of energy for work, play and everything in between." Living Essentials tried to justify the specific advertising claims at issue. McNeil-PPC, Inc. v. Pfizer Inc., 351 F.Supp.2d 226 (S.D.N.Y. 2005). NAD Report, p. 11, Exh. A to Henderson Declaration, Docket No. 26. 08-CV-1166 IEG (POR) 5 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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"evidence" was tested in the "crucible of cross-examination."25 NAD accepted Living Essentials' "evidence"--including what NAD believed was a valid "placebo controlled, randomized clinical trial." The study, however, was not "placebo controlled," was not "clinical," nor was Blum a medical school professor. Again, after NAD found that Living Essentials' failure to give the caffeine content on 5-hour Energy® bottles caused consumer confusion, Living Essentials assured NAD last year that it "intends to modify its advertising to accommodate." It has not, demonstrating yet again that Living Essentials will say anything--to NAD, this Court or the public to get out of a bind. III LIVING ESSENTIALS CANNOT GET AROUND ITS LITERALLY FALSE ADS To justify itself, Living Essentials' has to ignore that its own "clinical trial" disproves its "no crash later" claim for 5-hour Energy®. Even NAD found this claim false. Next, Living Essentials defends its 5-hour Energy® claim, its own admission that the product provides no physical energy notwithstanding. To pull that off, however, it has to engage in the tortured attempt to redefine "energy." It turns to the third definition in an unpublished, online dictionary--Wordsmythe Dictionary--to come up with synonyms "vigor, liveliness and vitality." With these newly-found definitions, it explains, its advertising could be construed as true since, it says, 5-hour Energy® improves mood and increases vigor. Living Essentials, however, simply ignores the context of its own advertising--from the "action scenes" in its commercials to the prominent picture of the runner on the bottle soaring up the mountain.26 All suggest that the energy in its name and to which it constantly refers is none other than physical energy. "A literally false message may be either explicit or conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated."27 "Vigor" and "vitality" do not give a runner strength or energy to run up a mountain. Its claim to the contrary is disingenuous.
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Crawford v. Washington, 541 U.S. 36, 61 (2004). Hansen has and will continue vigorously to do so here. The case law, however, mandates that context is critical. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). Scotts Co. v. United Indus. Corp., 315 F.3d 264, 274 (4th Cir. 2002). 08-CV-1166 IEG (POR) 6 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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Living Essentials points to Hansen's ads that one of its low calorie products provides an "energy boost." It is, however, the glucose in those products that provides energy and Hansen never claims a duration for the "energy boost" as Living Essentials does for 5-hour Energy®.28 Even Mahady undercuts Living Essentials. She gives four definitions of energy, all of which support Hansen (and indisputable science) that energy necessarily means physical energy: "1. The power by which anything acts effectively to move or change...;" "2. Habitual tendency to and readiness for effective action;" "3. Power in active exercise; force in operation;" and "4. Physics: The capacity of doing work and overcoming inertia...." 29 Mahady herself agrees that feelings of "good mood" and "vitality" do not constitute energy. Indeed, were Living Essentials honest, it would call its product "Vigor" or "Vital" or some such. It would also kill the "5-hour" claim--literally false precisely because of the duration it asserts. If Bausch and Lomb advertised "once-a-week" disposable contact lenses that, in fact, needed replacing after four days, that would be false advertising. So too here. IV LITERALLY FALSE CASES DO NOT APPLY THE TRADITIONAL FOUR- FACTOR INJUNCTIVE RELIEF TEST Living Essentials refuses to acknowledge the cases that state unequivocally that irreparable harm is presumed when a competitor's advertisement is literally false. Just two months ago, the Central District of California in Pom WonderFul,30 granted a preliminary injunction in a literal falsity case, without plaintiff's having to "introduce consumer testimony, marketing surveys or proof of lost profits"31 Living Essentials does not even mention this case. Living Essentials also ignores Time Warner Cable32 and Castrol33 --each holding that irreparable harm is presumed. Instead, it says that eBay34 has done away with that presumption. eBay, however, did no such thing. eBay was not a literal falsity case; eBay was a patent case that

Sacks declaration, ¶ 7. Mahady declaration, ¶ 12. Pom Wonderful, LLC v. Purely Juice Inc., 2008 U.S. Dist. LEXIS 55426 (July 17, 2008) (Snyder, J.) Id. at *30. Time Warner Cable, Inc. v. Directv, Inc., 497 F.3d 144, 158 (2d Cir. 2007). Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 944 (3d Cir. 1993). eBay v. MercExchange, LLC, 547 U.S. 388 (2007). 08-CV-1166 IEG (POR) 7 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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appropriately applied the traditional four-factor test. This distinction is critical, precisely because literal falsity cases presume irreparable harm and, as a consequence, do not apply the traditional factors. eBay did not limit the holdings of Time Warner Cable and Castrol and, Living Essentials' assertion that it does is, once more, less than forthright. Living Essentials' reliance on Reno Air Racing Ass'n.,35 MyGym, LLC36and Harris Research, Inc.37 is equally misplaced; all involved trademark infringement. None had anything to do with the presumptions that go along with literal falsity cases.38 Living Essentials also argues that Castrol and Time Warner Cable do not apply because they only allow for the irreparable harm presumption when one competitor mentions the other competitor's product by name. Wrong, again--on the facts and the law. First, Living Essentials compares itself with Hansen's Monster Energy® drinks--on its website, in its commercials, and even in its "clinical trial" posted on the Internet. Comparative advertising exists here--in spades.39 More importantly, the commercials in Castrol and Time Warner Cable did not identify their competitor by name. Castrol sued Pennzoil because it "claimed that its product `outperforms any leading motor oil against viscosity breakdown'" and that "Pennzoil's motor oil provides `longer engine life and better engine protection.'"40 No ad mentioned Castrol's product by name. Yet, the court issued a preliminary injunction and the Third Circuit affirmed. Here, Living Essentials' commercials directly attack Hansen whose products contain sugar, caffeine and guarana. By falsely41 suggesting that 5-hour Energy® does not have any of those ingredients, it claims to be a superior energy drink--just as Pennzoil did in Castrol. Living Essentials' failure specifically to mention Hansen is immaterial. Likewise in Time Warner Cable, DIRECTV never mentioned its competitor by name; it
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Reno Air Racing Ass'n. Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006) MyGym LLC v. Engle, 2006 WL 3524474 11 (D. Utah 2007). Harris Research v. Lydon, 505 F.Supp.2d 1161 (D. Utah 2007). It is apparent Living Essentials simply Shepardized the eBay case for Lanham Act cases without determining if the facts and reasoning of those cases apply. Sacks' declaration, ¶¶ 5 and 6. Castrol Inc. at 940. For an extended discussion of these cases, see Hansen's opening brief at pp. 21-23. 5-hour Energy® contains caffeine. 08-CV-1166 IEG (POR) 8 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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simply referred to the generic "cable." In another commercial, the narrator states "For an HD picture that can't be beat, get DIRECTV"--even the word "cable" was not used. The court still found the commercials literally false and granted Time Warner a preliminary injunction. Living Essentials does not bother to address McNeil-PPC v. Pfizer,42 in which Pfizer touted Listerine to be "as effective as floss." The court found this claim literally false, found that McNeil-PPC had been irreparably harmed, and issued a preliminary injunction. Like Hansen, McNeil-PPC was not the only floss manufacturer, but one of several, a "market leader" like Hansen--sufficient, nonetheless, for the court to presume irreparable injury as a matter of law. The rationale for injunctions in literal falsity cases is not based on a direct attack on a competitor. Rather, literally false advertisements harm competitors in that industry; hence the presumption. Living Essentials' assertion that the Court must separate each commercial, label and online comparison, and analyze each independently to determine the amount of harm both ignores the case law and misses the point why its literally false ads presume irreparable harm. Hansen's Sales Are Irrelevant. Living Essentials' attempt at calculating the "absence" of irreparable harm by looking at Hansen's sales figures is mere slight-of-hand. First, because literal falsity presumes irreparable harm, Hansen's sales record is immaterial. Second, Hansen's strong sales figures could be the result of many business factors, none of which relate to Living Essentials' conduct, including, a larger advertising budget, new markets, new products and improved distributor relationships. Therefore, Living Essentials' argument that Hansen has not been harmed by its false advertisement is pure speculation. It is impossible to know what Hansen's sales would have been absent Living Essentials' false claims. "Because it is virtually impossible to prove that so much of one's sales will be lost or that one's goodwill will be damaged as a direct result of a competitor's advertisement, the plaintiff need not point to an actual loss or diversion of sales to satisfy this requirement."43
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McNeil-PPC, Inc. v. Pfizer Inc., 351 F.Supp.2d 226 (S.D.N.Y. 2005). Time Warner Cable, Inc., supra, at 161, citing to Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 316 (2d Cir. 1982). Emphasis added. See also McNeil-PPC, supra, at 250. 08-CV-1166 IEG (POR) 9 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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Hansen Moved Promptly After Discovering Living Essentials' False Advertising. Perhaps Living Essentials intends the third time to be a charm. Yet again it argues that Hansen should have sued it sooner. Living Essentials still gets it wrong. Living Essentials raised this precise--and error-laden--claim in its ex parte applications both to this Court for delay44 and Judge Porter for expedited discovery.45 Hansen addressed this issue with facts that set the record straight.46 Hansen will not waste the Court's time reiterating what it has already said. Instead it respectfully refers the Court to the facts in the Sacks declarations and the argument in its earlier briefs. That timeline shows the "delay" claim is one more red herring. Living Essentials' Hardship is Immaterial. Living Essentials again ignores the cases that hold irreparable harm is presumed in literal falsity cases, eliminating the need to balance hardships. Predictably, none of the cases it cites are literal falsity cases; hence, inapposite. As Living Essentials argued in the Michigan district court, stripping away labels and a name is a consequence of Lanham Act violations.47 V CONCLUSION Living Essentials' "evidence" that its product actually does what it claims fails. 5-hour Energy's® advertising is literally false and, as the case law mandates, it should be enjoined.

DATED: September 8, 2008

Respectfully submitted, SOLOMON WARD SEIDENWURM & SMITH, LLP

By:

/s/ Edward J. McIntyre NORMAN L. SMITH EDWARD J. MCINTYRE WILLIAM N. KAMMER Attorneys for Hansen Beverage Company

44 45 46 47

Docket no. 11, p. 6. Docket no. 12, pp. 6-7. Docket no. 16, pp. 9-10. See especially Sacks' Declaration, ¶¶ 4-6 (Attachment No. 2). See discussion of Innovation Ventures v. N2G Dist. in Hansen's opening brief, pp. 6 and 24 (Docket No. 7). 08-CV-1166 IEG (POR) 10 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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CERTIFICATE OF SERVICE I caused the HANSEN BEVERAGE COMPANY'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Mark A. Cantor, Esq. Mark Lorelli, Esq. Thomas W. Cunningham, Esq. Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 358-4400 Facsimile: (248) 358-3351 [email protected] [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). None. /s/ Edward J. McIntyre EDWARD J. MCINTYRE Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials

08-CV-1166 IEG (POR) 11 HANSEN'S REPLY TO LIVING ESSENTIALS' OPPOSITION TO ITS MOTION FOR PRELIMINARY INJUNCTION

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NORMAN L. SMITH [SBN 106344] [email protected] EDWARD J. MCINTYRE [SBN 80402] [email protected] WILLIAM N. KAMMER [SBN 53848] [email protected] SOLOMON WARD SEIDENWURM & SMITH, LLP 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (619) 231-0303 Facsimile: (619) 231-4755 Attorneys for HANSEN BEVERAGE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERAGE COMPANY, a Delaware corporation, Plaintiff, v. INNOVATION VENTURES, LLC dba LIVING ESSENTIALS, a Michigan corporation, Defendant.

CASE NO. 08-CV-1166 IEG (POR) HANSEN BEVERAGE COMPANY'S OBJECTIONS TO THE DECLARATION OF GAIL MAHADY FILED IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION Date: September 15, 2008 Time: 10:30 a.m. Courtroom: 1 Hon. Irma E. Gonzalez

P:00440702:07565.158

08-CV-1166 IEG (POR) OBJECTIONS TO G. MAHADY'S DECLARATION SUBMITTED IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

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Hansen Beverage Company objects to the following evidence submitted by Innovation Ventures, LLC dba Living Essentials in support of its Opposition to the Motion for Preliminary Injunction: Declaration of Gail B. Mahady Objectionable Evidence The clinical data clearly show that the product provides five hours of energy, as Living Essential advertises. ¶ 3. Basis for Objection These statements are conclusory and Mahady does not establish any evidentiary foundation for the conclusions. [The clinical trial concludes that less than In my opinion, Living Essentials advertising claims are supported by the Blum clinical trial and by previously published medical and scientific literature. ¶ 8. In addition, it appears that Dr. Davis does not have a copy of this clinical trial, thus his comments about the study were made with [sic] having thoroughly reviewed the trial. ¶ 3. 60% of subjects experienced 5 hours of energy after drinking 5-hour Energy® and that approximately 24% of subjects experienced a moderate to severe "crash."] Lack of personal knowledge (F.R.E. 602); Mahady does not establish any evidentiary foundation for this conclusion. [Hansen had a copy of the study before Living Essentials filed it with the Court]

The statements by Hansen on page 4 of the memorandum appear to be based on incomplete information obtained from websites, as they do not have a copy of the report describing the clinical trial and thus could not have possibly read it. ¶ 13.

Thus, it is impossible to claim that 5-hour

P:00440702:07565.158

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ENERGY® produce provides no energy as also claimed by Dr. Davis, as he apparently has not reviewed the data. ¶ 13. The Blum clinical trial of 5-hour ENERGY® was performed by Dr. James Blum, who is an Epidemiologist and Biostatistician, at the University of New England Medical School. ¶ 8. Lack of personal knowledge (F.R.E. 602); Mahady does not establish any evidentiary foundation for this assertion. [James Blum was not affiliated with the University of New England in 2007. The University of New England does not have a medical school.] The clinical site was located at the Southern Maine Research Center (independent medical research center) located at 344 Lack of personal knowledge (F.R.E. 602); Mahady does not establish any evidentiary foundation for this assertion.

Cumberland Street, Westbrook, Maine. ¶ 8. [The building located at 344 Cumberland Street, Westbrook Maine is a residence. There is no research facility at that address] Approval to perform this study was obtained from the Institutional Review Board of the University of New England Medical School. ¶ 8. Lack of personal knowledge (F.R.E. 602); Mahady does not establish any evidentiary foundation for this assertion. [The Institutional Review Board of the University of New England never gave approval for this study] The 5-hour ENERGY® product contains a dose of caffeine comparable to that of a cup of the leading premier coffee per serving, thus falls within the acceptable range for a energy effect. ¶ 18. Mahady's statements are conclusory and she does not establish any evidentiary foundation for these conclusions. [According to her own research a person must ingest at least 150 mg. of caffeine to

P:00440702:07565.158

-308-CV-1166 IEG (POR) OBJECTIONS TO G. MAHADY'S DECLARATION SUBMITTED IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

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experience performance "enhancement." 5hour Energy® caffeine content is approximately 85 mg.]

DATED: September 8, 2008

Respectfully submitted, SOLOMON WARD SEIDENWURM & SMITH, LLP

By: /s/ Edward J. McIntyre NORMAN L. SMITH EDWARD J. MCINTYRE WILLIAM N. KAMMER Attorneys for Hansen Beverage Company

-408-CV-1166 IEG (POR) OBJECTIONS TO G. MAHADY'S DECLARATION SUBMITTED IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

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CERTIFICATE OF SERVICE I caused the HANSEN BEVERAGE COMPANY'S OBJECTIONS TO THE DECLARATION OF GAIL MAHADY FILED IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION to be served in the following manner: Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Ferris Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Mark A. Cantor, Esq. Mark Lorelli, Esq. Thomas W. Cunningham, Esq. Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 358-4400 Facsimile: (248) 358-3351 [email protected] [email protected] [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials Manual Notice List The following is the list of attorneys who are not on the list to receive e­mail notices for this case (who therefore require manual noticing). None. /s/ Edward J. McIntyre EDWARD J. MCINTYRE Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1188 Facsimile: (310) 743-1189 [email protected] Attorneys for Innovation Ventures LLC dba Living Essentials

-508-CV-1166 IEG (POR) OBJECTIONS TO G. MAHADY'S DECLARATION SUBMITTED IN SUPPORT OF LIVING ESSENTIALS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

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1

NORMAN L. SMITH ISBN 106344]
nsm [email protected]

t
3

4
5

6
7
B

EDWARD J. MCINTYRE ISBN BO4O2] emci ntyre@swssl aw.com WILLIAM N. KAMMER ISBN 53848] [email protected] SOLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (61 9) 231-0303 Facsimile: (619) 231 -47 55 Attorneys for HANSEN BEVERACE COMPANY

LLP

I
10
11

UN¡TED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

12
13

HANSEN BEVERACE COMPANY, Delaware corporation,

A

CASE NO. 08-CV-1 166 rEC (POR) FURTHER DECLARATION OF THOMAS P, DAVIS, Ph.D, IN SUPPORT OF HANSEN BEVERACE COMPANY'S MOTION FOR PRELIMI NARY INJUNCT!ON

Plaintiff,

14
15

16 17
18 19

INNOVATION VENTURES, LLC dbA LIVINC ESSENTIALS, a Michigan corporation,
Defendant.

Date: Time:

Courtroom:

September 15, 2008 10:30 a.m.
1

Hon. lrma E. Conzalez

20
21

,',
23

24
25

26

t',
2A
P100441249.6:07 s6s
.1

58

URTHER DECLARATION OF THOMA5 P. DA\

CASE NO. O8-CV i 1 66 rEC (POR) HANSEN BEVERACE

COMPANY'S MOTION FOR

NCTION

Case 3:08-cv-01166-IEG-POR

Document 30-4

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1

Thomas P. Davis, Ph. D. declares:

.,

1.

I have read and analyzed the 27-page "Final Report" that is linked to the web

3

page found on the lnternet at http://dsresearchgroup.com. lt is titled "A Randomized, 3-Arm

4
5

Comparative-Controlled, Double-Blinded, Cross-Over-C roup, Clinical Trial to Test the ShortTerm Efficacy and Safety of Company ABC's.Energy Drink'" ln a Comparison with Other
Energy Drinks". I have these comments and observations about that Report.

6
7

2.

On its first page, the author noted that "subjects will be instructed that these

8 9 10
11

blends are intended to induce energy increases without the need to make major behavioral

changes." This was a fundamental flaw of this study because it immediately introduced a
bias into

it.

Armed with this prior information, the participants are immediately

"anticipating" that they "will feel more energy." All of the endpoints of the study were
based upon sellreporting, and therefore this was a significant failure in study design,

12 13 14
15

rendering all of the results biased and hence worthless.

3.

Page 2 of the lnternet Report stated that all subjects

would be "randomized for

the metabolic testing." Further remarks concerning metabolic testing and procedures appear in three places on the following page. Metabolic testing would have been an imporlant and crucial component in the design of a valid clinical trial because proper metabolic test¡ng

16 17 18
19

would have shown the direct, measurable effect (if any) of the drinks and products tested on
increases in human metabolic activity ( i.e., oxygen consumption) versus the placebo. The researchers knew this as it was considered an essential element

20
21

of

the "Study" befóre it was

ever started, but the data is not presented in any form in the "Final Report" which clearly invalidates the "study" for this reason alone. Energy from humans is always measurable
as

,,
23

liters of oxygen consumed per minute in any physician's office where the metabolic/exercise

24
25

machine is set up. Tellingly I find no results of that testing in the lnternet Report and believe that it was not done or, if it was done, the data did not suppoft the 5-Hour product advertisements. Again because the endpoints were based upon subjective reports, the
absence of measurable, quantitative, metabolic testing results eliminated any scientific

26

.,.|
28

validation of the "Study's" reported results, making it worthless.

P:o0441248.6:O7s65t5a

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CASE

NO' 08-CV-1 166 IEC (POR)

COMPANY'S MOTION FOR PRELIMINARY INJUNCTION

Case 3:08-cv-01166-IEG-POR

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1

4.
use

The results of a clinical trial of this sort can only be validated by statistical

,
3

testing according to generally accepted statistical criteria. The lnternet Report discussed the

of regression analysis at page 6 and the Chi-Square test and Fisher's Exact Two-Tail t-test

4
5

on page 7. These are statistical methods of analysis commonly used to attempt to validate
results in such studies where the "sample numbers or cells" are small. The Report properly

6
1
B

noted on page

Z

that the Fisher's t-test is particularly necessary with small cell sizes. This

Report is based upon the responses of a very small sample size and that is why F¡sher's t{est was so

impoÍant. However, I could find little to NO reference to the

results of these

I
10
11

imporlant statistical tests nor the level of statistical signìficance from the testing of the data
sets in this "Final Report."

5,

Regression analysis would have been necessary for this study but again no

12 13

results of the statistical testing was provided. One can assume either that the results from the

statistical testing did not agree with what the principal investigator or the study designer

14
15 'a6

wanted the data to report or that the testing was simply not done. ln any event, the "Study"
is inherently defective and the results ìncredible.

6.

There are no reported results from the use of any of these statistical methods

17 18
19

on the data sets anywhere in the lnternet Report, suggestlng to me that they were never performed or the results from the statistical tests were not favorable to the 5-Hour product. lf they were performed, then the failure to report their results is strongly indicative of the fact
that the numerical results were not statistically significant. ln fact, that lack of statistical

20
21

significance is suggested in the statement at the very end of page 27 thaT "Ihe actual peak
levels achieved by each drink were comparable and no statistical differences were found."

J'
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25

lf no statistical differences were found, what test was used to support that statement? lf NO
differences were noted, at WHAT LEVEL of statistical significance was this found?

7.

Another flaw in this "clinical trial" was its failure to isolate the effects of the
is

26 27 28

levels of caffeine consumption by the participants as paft of their regular diet. Caffeine

well known to affect blood pressure, heart rate, and several perceived "feelings" of energy.
The Table on page 1 1of the Report identifies 19% of the subjects as not using caffeine of any
P

100 44

1

2 48.6107 56 5.

1

58

F

CASE NO. 08-CV-1 166 IEC (POR) PPORT OF HANSEN Y'S MOTION FOR
INJ U

NCTìON

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1

sort but 55% as usin8 the equivalent of at least two cups (the volume of coffee consumed is

t
3

unknown) a day with some 20% using five or more cups. Nevertheless this variable was
never isolated in the study to control the effects of the caffeine regularly present in the

4
5

different subjects'bodies since diet was notto be controlled in this "srudy.' lt is known that the caffeine content of regular coffee can range from ,l50 to 350 milligrams of caffeine per 12 ounces, so the different study participants consumed from zero up to l z5o milligrams
of caffeine per day from coffee alone while participating in the study. This uncontrolled

6

I
9

variable could have caused any "self-perceived response" to any question asked in this

"Study."

Because one compound that can cause a "perception,, of ,,energy,, is caffeine and

t0
11

the products tested only contained between 85 and l 25 milligrams of caffeine, the uncontrolled and variable consumption of caffeine by the study participants clearly affected all results in an uncontrolled manner and the ,,Study, is a failure and worthless,

12 13 14

8.

Finally the first page ofthe Report stated that each test day, the subject would

receive a "placebo or one of the three products.' However the Report cloes not contain any listing or tabulation of the self+eports of any subject who received ihe placebo, a very
strange omission. Any expert in ANY clinical study knows the power of the "pìacebo

t5

t6
17 18 19 20
21

effect.' lt is also well known by all lay people who read any literature or watch any ¡nternet
news service that the placebo effect is

real. No placebo data is ever shown yet the placebo

was "tested " per the Report, ln this case one must question if any/all the results were "masked" by a skong placebo effect and

No result in this'Final Report"

is

valid, one

can

not "p¡ck and choose" results to show in a ,Final Report,, because this is not valid,
I declare under penalty of perjury under the laws of

'.,
2S

united states of Amer¡ca that th

facts in this declaration are true and correct. based on my or¡!/n personal knowledge and on

24
25

generally accepted science which I believe to be true and correct, and that I executed this

declaration on September 8, 2008.

26 27
28
1

166 tEG (POR)

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1

CERTIFICATE OF SERVICE
I caused the FURTHER DECLARATION OF

t
3

THOMAS P. DAVIS, Ph'D. lN SUPPORT

OF HANSEN BEVERAGE COMPANY'S MOTION FOR PRELIMINARY INf UNCTION to be served in the following manner:

4
5

Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail not¡ces for this
case.

6
7

I
9

10
11

12 13

14
15

Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765\ Mintz Levin Cohn Ferris Clovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Telephone: (858) 314-1 510 Facsimile: (858) 314-1 501 dpascucci@m intz.com nham [email protected] Attorneys for lnnovation Ventures LLC dba Living Essentials Mark A, Cantor, Esq. Mark Lorelli, Esq. Thomas W. Cunningham, Esq. Brooks Kushman P.C. i 000 Town Center, 22d Floor Southfield, Ml 48075 Telephone: (2481 358-4400 Facsimile: (248) 358-3351 [email protected] mlorel I [email protected] tcun n ingham@brooksk ushman.com Attorneys for lnnovation Ventures LLC dba Livine Essentials Manual Notice List

Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suìte 630 Los Angeles, CA 90045 Telephone: (310) 243-1 188 Facsimile: (310) 243-1i89 mm [email protected] Attorneys for lnnovation Ventures LLC dba Living Essentials

',6
17 18 19 20
21

JJ
23

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25

The following is the list of attorneys who are not on the list to receive e-mail notices

for this case (who therefore require manual noticing).

26 .,7
28 None.

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NO 08-CV-l

166 IEC (POR)

COMPANY'S MOTION FOR PRELIMINARY INjUNCTION

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1

NORMAN L. SMTTH [SBN 106344]

., 3

4
J

6
7

emci ntyre@swss law.com WILLIAM N, KAMMER ISBN 53848] wkammer@swss law.com SOLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (61 9) 231-0303 Facsimile: (61 9) 231 -47 55

nsm ¡[email protected] EDWARD J. MCINTYRE [SBN 80402]

LLP

Attorneys for HANSEN BEVERACE COMPANY

I I
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11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

HANSEN BEVERACE COMPANY, Delaware corporation, Plaintiff,

A

CASE

NO. O8-CV-1 166 IEC (POR)

12
13

DECLARATION OF RON MORRISON, Ph,D,, IN SUPPORT OF HANSEN'S

MOTION FOR PRELIMINARY
INJUNCTION

14
15

INNOVATION VENTURES, LLC dbA LIVING ESSENTIALS, a Michigan corporation,
Defendant.

16 17
18 19

Date: Time: Courtroom: Judge:

September 15,2008 10:30 a.m. 1, Fourth Floor Hon. lrma E. Conzalez

20
21

,t
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P100440711107565.158

08-cv-1 166 tEC (POR)
INIU NCTIO N

Case 3:08-cv-01166-IEG-POR
_-ø9tøa_/_-2øøE

13|ø6

2ø7294598ø

Document 30-5

ENGL]SH DEPART¡4ENT

Filed 09/08/2008

Page 2 of 3
PAGE

ø3

1

.,

Ron Morrison declares:

1'lamaProfeg$orintheDepartmentofPhilosophyandReligiousStud¡esatthe
J

UniversityofNewEngland,Ihaveabachelor,sdegreefromtheUniversityofMaine,and
4

myM'A.andPh.D'areftomEmoryUnìversity.Myresearchinterestsincludebioethicsand
5

environmental PhilosoPhY'

6
7

I I
10
11

g"t¡¡s$/ ffqard the University of New Ëngland's lnstitution the yeaf to rev¡ew (,,lRB'). our IRB meets approximately once per monlh throughout have been submitted by faculty, students' research pfotocols ìnvolving human subjects that

2.

I am Chair of

staf or administrators

of the Un¡vers¡ty'

3.lhaveparticulerlyreviewedparagraphBofthedeclarationofCailB'Mahady,
a Dr' James Blum' Ph.D., and certain statements ¡n it concerning lty of the I am personally aware of the members of the facu

12 13

4.

Un

iversity of New

England.Dr^Blumisnotanepidemiologistandb¡ostatisticianattheUn¡VersityofNew
14
15

EnglandMedicalschoolasasseúedinpafaBrâphE.lnfact,ourUniversityhasno,Medical of Osteopathic Medicine' but Dr' Blum has School.o Our UniversiÇ does have a College
member since 2005 not been associated with that school as an adjunct faculty that Dr' Blum obtained Paragraph I of Dr' Mahady's declaration states

16
"17

5.

18

l9
20
21 22

approvaltoperformaclinica|trialofS'hourENERCY@fromoufUniversity,slRB.Thatis The protocol for that study wâs never approved by the university of
not a true statement.

New England lRB.
I declare under penalty of perf ury under the laws of the

united states of America thal

on the facts in this declaration are true and coffect and that I executed this declaration

23

Seprember
2+ 25

F,

2008.

26
,1

2s

Proo44o711ro756s.15ð

I
INIU NTTION

08-CV-l 166 IEC (POR)

Case 3:08-cv-01166-IEG-POR

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Page 3 of 3

1

CERTIFICATE OF SERVICT

.)

I caused the DECLARATION OF RON MORRISON, Ph.D., IN SUPPORT OF

3

HANSEN'S MOTION FOR PR-ELIMINARY INJUNCTION to be served in the following
manner:

4
5

Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case.

6 7

I I
10
11

12
13

Daniel T. Pascucci, Esq. (SBN 166780) Nathan R. Hamler, Esq. (SBN 227765) Mintz Levin Cohn Fenis Glovsky and Popeo PC 3580 Carmel Mountain Road, Suite 300 San Diego, CA92130 Telephone: (858) 314-1510 Facsimile: (858) 314-1501 [email protected] [email protected] Attomeys for Innovation Ventures LLC dba Living Essentials

Mark B. Mizrahi, Esq. (SBN 179384) Belasco Jacobs & Townsley, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Telephone: (310) 743-1 188 Facsimile: (310) 743-1 189 [email protected] Attomeys for Innovation Ventures LLC dba Living Essentials

14
15

Mark A. Cantor, Esq. Mark Lorelli, Esq. Thomas W. Cunningham, Esq.
Brooks Kushman P.C. 1000 Town Center, 22d Floor Southfield, MI 48075 Telephone: (248) 3 58-4400 Facsimile: (248) 358-3351 mcantor@brookskushman. com [email protected] tcunningham@brookskushman,com Attomeys for Innovation Ventures LLC dba Livins Essentials

16 17
18 19

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tt
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Manual Notice List
The following is the list of attomeys who are not on the list to receive e-mail notices for

this case (who therefore require manual noticing). None.

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P:0044071 l:07565.158

lsl Edward J. Mclntyre
EDWARD J. MCINTYRE

DECLARATION OF RON MORRISON, Ph,D, IN
INJ U

NCTION

Case 3:08-cv-01166-IEG-POR

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