UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …...Nucific as supported by the fact that...
Transcript of UNITED STATES DISTRICT COURT EASTERN DISTRICT OF …...Nucific as supported by the fact that...
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA
GOLO, LLC, : : Plaintiff, : : vs. : NO. 2:17-cv-02714-GAM : HIGHYA, LLC; and BRIGHTREVIEWS, LLC, :
: :
: Defendants. :
(PROPOSED) ORDER GRANTING PLAINTIFF’S MOTION TO AMEND THE JUDGMENT AND PERMIT FILING OF A SECOND AMENDED COMPLAINT
AND NOW, this _____ day of ________________, 2018, upon consideration of
Plaintiff’s Motion to Alter or Amend the Judgment, and any response thereto, the Court hereby
GRANTS said Motion. The Court’s May 4, 2018 Order is HEREBY AMENDED to provide
that Plaintiff is GRANTED leave to file a Second Amended Complaint within seven (7) days of
this Order.
SO ORDERED:
_________________________________________ The Honorable Gerald A. McHugh U.S. District Court Judge
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 1 of 52
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA
GOLO, LLC, : : Plaintiff, : : vs. : NO. 2:17-cv-02714-GAM : HIGHYA, LLC; and BRIGHTREVIEWS, LLC, :
: :
: Defendants. :
PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGEMENT AND FOR LEAVE TO AMEND COMPLAINT – F.R.C.P. 15 AND 59
Plaintiff Golo, LLC, by and through its undersigned counsel, respectfully requests that
the Court alter its May 4, 2018 Order granting Defendants’ Motion to Dismiss to provide an
opportunity to Plaintiff to Amend the Complaint. Dkt. No. 25.
1. In its Opinion, the Court recognized that “liability can arise under the
Lanham Act if websites purporting to offer reviews are in reality stealth
operations to disparage a competitor’s product while posing as a neutral
party.” Id. at 10.
2. Ultimately, however, the Court concluded that the Amended Complaint
did not allege sufficient facts for the Court to plausibly conclude that
Defendants’ websites, purporting to be neutral review websites, were, in
fact, “shams that disguise an underlying financial scheme that Defendants
are pursuing to Plaintiff’s detriment.” Id. at 11.
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 2 of 52
2
3. While Plaintiff appreciates, though respectfully disagrees, with the Court’s
conclusion, Plaintiff respectfully requests an opportunity to amend the
Complaint to provide additional evidence demonstrating the plausibility
that Defendants’ website are used for the purpose of aiding Plaintiff’s
competitors to Plaintiff’s detriment.
4. Specifically, Plaintiff wishes to amend the Complaint to allege additional
facts plausibly suggesting an affiliation between Defendants and one of
Plaintiff’s competitors, Nucific.
5. To that end, Plaintiff will allege that Defendants are connected with
Nucific as supported by the fact that Defendants and the corporate parent
of Nucific share a place of business. In other words, of the millions of
office spaces in the United States, Defendants and the parent company of
Nucific happen to share not only the same address but the same exact
office within that place of business.
6. For example, Zoom.info shows identifies Defendant HighYa, LLC as
maintaining a place of business at 19801 Nordhoff Place, Unit 111,
Chatsworth, California 91311.
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 3 of 52
3
7. While that fact may be unremarkable on its own, another entity – Whole
Body Research, LLC – is also listed as having a place of business by the
Better Business Bureau at 19801 Nordhoff Place, Chatsworth, California,
91311 and, indeed, is associated with the same exact suite within that
facility. See https://www.bbb.org/losangelessiliconvalley/business-
reviews/vitamins-and-supplements/whole-body-research-in-chatsworth-
ca-1023398.
WHOLE BODY RESEARCH, LLC
(1) 5 years in business
19801 Nordhoff Pl #111
Chatsworth, CA 91311-6612
8. Whole Body Research, LLC is, in fact, a related entity to Pacific Health
Supplements, LLC d/b/a Nucific. Indeed, in a Complaint recently filed in
the United States District Court for the Central District of California by
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 4 of 52
4
Whole Body Research, LLC and Pacific Supplements Health, LLC d/b/a
Nucific, along with four other entities, the six Plaintiffs identified
themselves as “six related limited liability companies in the business of
creating, marketing and selling health, wellness and beauty brands and
products online. Plaintiffs spend hundreds of thousands of dollars
developing, testing and fine-tuning their online advertisements and
websites to generate business through direct response marketing and
attract consumers to their websites.” See Exhibit “A” at ¶1.
9. Plaintiff respectfully suggests that these additional allegations, accepted as
true as they must be at this time, are more than sufficient to plausibly
suggest an affiliation between Defendants and Pacific Supplements
Health, LLC d/b/a Nucific, a direct competitor of Plaintiff.
10. Indeed, as the Court noted its May 4, 2008 Opinion, it relied, in part, on its
“common sense” in evaluating the plausibility of Plaintiff’s allegations.
See Dkt. No. 25 at 13 (“As there has been no discovery, I make these
observations only as part of a ‘common sense’ evaluation of the
plausibility of Plaintiff’s conclusory allegation that Defendants’ websites
are not what they purport to be.”).
11. Should the Court permit Plaintiff to file a Second Amended Complaint,
Plaintiff will include other allegations demonstrating that “common sense”
suggests an affiliation between Defendants and the competitors identified
above.
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 5 of 52
5
12. Specifically, “common sense” would suggest that the percentage of online
reviews for a product would be largely commensurate with its share of the
relevant market.
13. Highya.com, however, in no way comports with what common sense
would suggest. For example:
a. 24 Hour Fitness, operator of over 400 gyms in the United States,
has two reviews on Highya.com. https://www.highya.com/24-
hour-fitness-reviews (“24 Hour Fitness is the gym with the biggest
membership in the country”);
b. Nurtisystem, likewise, has two reviews on Highya.com.
https://www.highya.com/nutrisystem-reviews;
c. Planet Fitness has five reviews on Highya.com.
https://www.highya.com/planet-fitness-reviews
14. Given the virtually non-existent number of reviews on Highya.com for
these nationally known and recognized weight loss and fitness companies,
one would expect a product like Nucific to have an even smaller number
of reviews.
15. Instead, the product with second most number of reviews on Highya.com
is “BioTrust” with 152 reviews. https://www.highya.com/review-
topic/weight-loss#list.
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 6 of 52
6
16. The weight loss product with the most reviews is Nucific. But not only
does Nucific have the largest number of reviews on Highya.com, it has
1046 reviews – almost ten times the number of reviews as the next highest
product. Id.; see also id. (showing that Whole Body Research itself has
the third highest number of reviews).
17. Indeed, the evidence of an affiliation between Defendants and the Whole
Body Research affiliated entities is even more damning when one looks at
the products within the “Health and Beauty” section of Highya.com.
https://www.highya.com/review-category/health-and-beauty.
18. The products with the six largest number of reviews are as follows: 1)
Vital Reds by Gundry MD; 2) Nucific Bio X4; 3) VitaPulse from
Princeton Nutrients; 4) Hubble Contacts; 5) Probiotic America; 6) Gundry
MD Primal Brands. Id.
19. Other than Hubble Contacts, the “Health and Beauty” products on
Highya.com with the largest number of reviews are sold by Nucific,
Probiotic America, Princeton Nutrients and two by Gundry MD. Id.
20. Every single one of these products is affiliated with Whole Body
Research. See Exhibit “A” at ¶6-10 (identifying the following entities as
related companies – Probiotic America, LLC, Pacific Supplements, LLC
d/b/a Nucific, Agoura Health Products, LLC d/b/a Gundry MD, LLC, and
Princeton Nutrients, LLC).
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 7 of 52
7
21. Plaintiff respectfully requests that the Court amend/alter its May 4, 2018
Order to provide Plaintiff with an opportunity to Amend the Complaint to
assert these facts, which clearly demonstrate a plausible relationship
between Defendants and Plaintiff’s competitors. See Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave when justice so requires.”),
F.R.C.P. 59.1
Date: May 18, 2018 /s/ M. Kelly Tillery M. Kelly Tillery (PA 30380) PEPPER HAMILTON LLP Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 215.981.4401 215.981.4750 (fax) [email protected] Adam B. Fischer (PA 314548) PEPPER HAMILTON LLP 500 Grant Street, Suite 5000 Pittsburgh, PA 15219 412.454.5000 412.281.0717 (fax) [email protected] Attorneys for Plaintiff, GOLO, LLC
1 While Plaintiff respectfully submits that the foregoing allegations are more than sufficient to plausibly
allege an affiliation between Defendants and Plaintiff’s competitors, Plaintiff alternatively requests that the Court also permit limited discovery into the affiliation between Defendants and the entities identified above. Where there is smoke, there is most often fire.
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 8 of 52
EXHIBIT A
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 9 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 10 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 11 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 12 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 13 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 14 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 15 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 16 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 17 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 18 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 19 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 20 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 21 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 22 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 23 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 24 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 25 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 26 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 27 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 28 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 29 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 30 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 31 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 32 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 33 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 34 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 35 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 36 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 37 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 38 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 39 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 40 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 41 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 42 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 43 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 44 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 45 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 46 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 47 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 48 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 49 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 50 of 52
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 51 of 52
CERTIFICATE OF SERVICE
I, M. Kelly Tillery, hereby certify that on May 15, 2018, I caused a true and
correct copy of the foregoing Motion to Alter or Amend the Judgment to be served via this
Court’s ECF system upon all counsel of record.
/s/ M. Kelly Tillery M. Kelly Tillery
Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 Page 52 of 52