Case No. EDCV 18-1882 JGB (SHKx)

Page 1 of 41 CIVIL MINUTES—GENERAL Initials of Deputy Clerk MG

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. EDCV 18-1882 JGB (SHKx) Date April 19, 2022

Title Monster Energy Company v. Vital Pharmaceuticals, Inc., et al.

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: Order (1) DENYING Plaintiff’s Partial Motion for Summary Judgment (Dkt. No. 433); (2) GRANTING IN PART AND DENYING IN PART Defendant Vital Pharmaceuticals, Inc.’s Motion for Summary Judgment (Dkt. No. 438); and (3) GRANTING IN PART AND DENYING IN PART Defendant John H. Owoc’s Motion for Summary Judgment (Dkt. No. 446)

Before the Court are Plaintiff Monster Energy Company’s (“Monster”) partial motion

for summary judgment (“PMSJ,” Dkt. No. 433); Defendant Vital Pharmaceuticals, Inc.’s (“VPX”) motion for summary judgment (“VPX MSJ,” Dkt. No. 438), and Defendant John H. Owoc’s (“Owoc”) motion for summary judgment (“Owoc MSJ,” Dkt. No. 446) (collectively, “Motions”). The Court held a hearing on the Motions on April 4, 2022. Upon consideration of the papers filed in support of and in opposition to the Motions, as well as oral argument, the Court DENIES the PMSJ, GRANTS IN PART AND DENIES IN PART the VPX MSJ, and GRANTS IN PART AND DENIES IN PART the Owoc MSJ.

I. BACKGROUND

The parties are familiar with the extensive procedural and factual history of this case; the Court relates only the background necessary to understand the Motions.

On September 4, 2018, Monster initiated this action against VPX and Mr. Owoc.

(“Complaint,” Dkt. No. 1.) On April 3, 2019, Monster filed a first amended complaint. (“FAC,” Dkt. No. 61.) On May 20, 2019, the Court granted in part Defendants’ motion to dismiss the FAC and dismissed Count 4 and Counts 7 through 9. (“MTD Order,” Dkt. No. 95.)

Case 5:18-cv-01882-JGB-SHK Document 740 Filed 04/19/22 Page 1 of 41 Page ID#:45640


Monster’s eight remaining causes of action are as follows: (1) violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count One); (2) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq. (Count Two); (3) violation of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500, et seq. (Count Three); (4) intentional interference with contractual relations (Count Five); (5) intentional interference with prospective economic advantage (Count Six); (6) violation of the California Uniform Trade Secrets Act, Cal. Civ. Code § 3426, et seq. (Count Ten); (7) violation of the Defend Trade Secrets Act, 18 U.S.C. § 1836, et seq. (Count Eleven); and (8) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. (Count Twelve). (See FAC; MTD Order.) On June 24, 2021, Monster filed the PMSJ. (See PMSJ.) In support, Monster filed the following documents:

Plaintiff’s Statement of Undisputed Facts (“PSUF,” Dkt. No. 433-2); and Declaration of Jennifer Bunn Hayden (“Hayden Declaration,” Dkt. No. 434), with

attached exhibits.

On July 1, 2021, the Court granted Monster’s application to file certain exhibits under seal. (Dkt. Nos. 459, 460, 435.)

On July 8, 2021, Defendants opposed the PMSJ. (Dkt. No. 470.) In support, Defendants

filed the following documents:

Defendants’ Statement of Genuine Dispute (“DSGD,” Dkt. No. 470); Evidentiary Objections to the PMSJ (“PMSJ Evid. Objections,” Dkt. No. 470-52); Request for Judicial Notice (“Defendants’ PMSJ Opp’n RJN,” Dkt. No. 470-47); First Declaration of Sara Anderson Frey (“PMSJ Frey Declaration,” Dkt. No. 470-2),

with attached exhibits; and Application to Seal Documents (“PMSJ Opp’n Application to Seal,” Dkt. No. 471.)

On July 19, 2021, Monster replied. (“PMSJ Reply,” Dkt. No. 504.) In support, Monster

filed the following documents:

Plaintiff’s Response to DSGD (“Pl.’s Response to DSGD,” Dkt. No. 504-1); Evidentiary Objections to the PMSJ Opposition (“PMSJ Opp’n Evid. Objections,” Dkt.

No. 504-2); Plaintiff’s Response to PMSJ Evid. Objections (“Pl.’s Response to PMSJ Evid.

Objections,” Dkt. No. 504-3); First Declaration of Lauren Johnson (“First Johnson Declaration,” Dkt. No. 505); and Application to Seal Documents (“PMSJ Reply Application to Seal,” Dkt. No. 507.)

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On June 24, 2021, VPX also filed the VPX MSJ. (See VPX MSJ.) In support, VPX filed the following documents:

Defendant’s Statement of Undisputed Facts (“DSUF,” Dkt. No. 438-2); Second Declaration of Sara Anderson Frey (“VPX MSJ Frey Declaration,” Dkt. No.

439), with attached exhibits; Declaration of Alex Rodriguez (“Rodriguez Declaration,” Dkt. No. 440); Declaration of Dr. Keykavous Parang (“Parang Declaration,” Dkt. No. 441); Declaration of Guillermo Escalante (“Escalante Declaration,” Dkt. No. 442); and Request for Judicial Notice (“RJN,” Dkt. No. 445.)

On July 8, 2021, Monster opposed the VPX MSJ. (“VPX MSJ Opp’n,” Dkt. No. 468.)

In support, Monster filed the following documents:

Plaintiff’s Response to the DSUF (“Pl.’s Response to DSUF,” Dkt. No. 472); Evidentiary Objections to Defendants’ VPX MSJ (“VPX MSJ Evid. Objections,” Dkt.

No. 475); Declaration of Emelie Tirre (“Tirre Declaration,” Dkt. No. 468-1); Declaration of Dr. Adam Renslo (“Renslo Declaration,” Dkt. No. 468-5); Declaration of Dr. Richard B. Kreider (“Kreider Declaration,” Dkt. No. 468-8); Second Declaration of Lauren Johnson (“Second Johnson Declaration,” Dkt. No. 477); Third Declaration of Lauren Johnson (“Third Johnson Declaration,” Dkt. No. 478); Declaration of Ashley Simanovich (“Simanovich Declaration,” Dkt. No. 492); and Applications to Seal Documents (“VPX MSJ Opp’n Applications to Seal,” Dkt. Nos.

474, 536.)

On July 19, 2021, VPX replied to the VPX MSJ Opposition. (“VPX Reply,” Dkt. No. 515.) In support, VPX filed the following documents:

Defendants’ Response to the VPX MSJ Evid. Objections (“Defs.’ Response to the VPX MSJ Evid. Objections,” Dkt. No. 522);

Evidentiary Objections to the VPX MSJ Opposition (“VPX MSJ Opp’n Evid. Objections,” Dkt. No. 523);

Request for Judicial Notice (“VPX MSJ Reply RJN,” Dkt. No. 524; and Application to Seal Documents (“VPX MSJ Reply Application to Seal,” Dkt. No. 517).

On June 24, 2021, Mr. Owoc filed the Owoc MSJ. (See Owoc MSJ.) In support, he filed

the Owoc Statement of Undisputed Facts (“OSUF,” Dkt. No. 446-2). On July 8, 2021, Monster opposed the Owoc MSJ. (Dkt. No. 469.) On July 19, 2021, Mr. Owoc replied. (“Owoc Reply,” Dkt. No. 516.)

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II. EVIDENTIARY ISSUES A. Evidentiary Objections

“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); see Fed. R. Civ. Proc. 56(e). At the summary judgment stage, district courts consider evidence with content that would be admissible at trial, even if the form of the evidence would not be admissible at trial. See, e.g., Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). The Court considers the parties’ objections only where necessary.1 All other objections are OVERRULED AS MOOT. B. Requests for Judicial Notice

Defendants request that the Court take judicial notice of certain documents. (See Defs.’

PMSJ Opp’n RJN; VPX MSJ Reply RJN.) The Court “may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

Defendants first request judicial notice of documents related to United States Patent No.

8,445,466. Because the patent was referenced in the FAC and the related website and order are authenticated and not subject to reasonable dispute, these documents may be judicially noticed. See Oroamerica Inc. v. D&W Jewelry Co., Inc., 10 Fed. Appx. 516, 517 n.4 (9th Cir. 2001) (taking judicial notice of USPTO trademark documents). Accordingly, the Court GRANTS Defs.’ PMSJ Opp’n RJN with respect to the patent-related documents. The remaining documents in Defs.’ PMSJ Opp’n RJN are already part of the Court’s docket and need not be judicially noticed to be considered. Colodney v. Orr, 2015 WL 1636818, at *1 n.4 (C.D. Cal. Apr. 9, 2015), aff’d, 651 F. App’x 630 (9th Cir. 2016). Accordingly, the Court DENIES Defs.’ PMSJ Opp’n RJN for the remaining documents.

Defendants next request judicial notice of five articles related to creatine, four of which

are from scientific publications and one of which seems to appear in an online blog. Generally, “courts are hesitant to take notice of information found on third party websites and routinely deny requests for judicial notice, particularly when the credibility of the site's source information is called into question by another party.” Gerritsen v. Warner Bros. Entm't Inc., 112 F. Supp. 3d

1 “[O]bjections to evidence on the ground that it is irrelevant, speculative, and/or

argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself” and are thus “redundant” and unnecessary to consider here. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see also Anderson, 477 U.S. 242, 248 (1986) (“Factual disputes that are irrelevant or unnecessary will not be counted.”) At the summary judgment stage, the Court focuses on the admissibility of the evidence’s contents, not the admissibility of the evidence’s form. Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (“[T]he nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”).



1011, 1028 (C.D. Cal. 2015). When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true. Heliotrope Gen. Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.118 (9th Cir. 1999). Because Defendants request that the Court take notice of these articles for the truth of the matter asserted, the Court DENIES the VPX MSJ Reply RJN. C. Applications to Seal Both parties have filed applications to file documents provisionally under seal. (Dkt. Nos. 471, 474, 507 (collectively, “Applications”).)

There is a strong presumption against filing documents under seal. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Generally, two standards govern requests to seal documents: the “compelling reasons” standard and the “good cause” standard. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 667 (9th Cir. 2010). The “good cause” standard is an “exception” to the “presumptive ‘compelling reasons’ standard” and only applies to “sealed materials attached to a discovery motion unrelated to the merits of a case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). For all other cases, a party seeking to seal a judicial record bears the burden of presenting “compelling reasons.” Kamakana, 447 F.3d at 1178-79. “[T]he party must ‘articulate[] compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the ‘public interest in understanding the judicial process.’” Id. Compelling reasons exist when “court files might have become a vehicle for improper purposes, such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1120 (9th Cir. 2012) (citation and quotation omitted). The parties seek to file the documents at issue under seal because VPX has designated them as “confidential” or “highly confidential.” However, “the presumption of access is not rebutted where ... documents subject to a protective order are filed under seal as attachments to a dispositive motion.” Foltz, 331 F.3d at 1136 (internal citations omitted); see also L.R. 79-5.2.2(a)(i) (“That the information may have been designated confidential pursuant to a protective order is not sufficient justification for filing under seal; a person seeking to file such documents under seal must comply with [the Local Rules].”).

The parties represent that the information to be sealed is Defendants’ proprietary business information and sensitive commercial dealings. Sensitive commercial information and information that might promote public scandal can be compelling reasons to permit the filing of a document under seal. Table de France, Inc. v. DBC Corp., 2019 WL 6894521, at *2 (C.D. Cal. Oct. 18, 2019). Even so, the parties request to seal or redact nearly every document submitted for the cross-motions without significant explanation. Erring on the side of caution, the Court GRANTS the Applications. However, the Court reminds the parties that they bear the burden of showing compelling reasons to justify sealing the record from the public.



III. FACTS

Except as noted, the following material facts are sufficiently supported by admissible evidence and are uncontroverted. They are “admitted to exist without controversy” for purposes of the Motion. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3. A. Parties Plaintiff Monster Energy Company (“Monster”) and Defendant Vital Pharmaceuticals (“VPX”) are competitors who develop, market, and sell energy drinks. (DSUF ¶¶ 2, 4, 8.) Defendant John H. Owoc (“Owoc”) is the founder, CEO, and Chief Scientific Officer of VPX. (Id. ¶ 5; PSUF ¶ 1.) VPX sells the BANG brand of energy drinks. (DSUF ¶ 9; PSUF ¶ 2.) Monster’s energy drinks include Green Claw and Reign. (DSUF ¶¶ 6, 20.) B. False Advertising Claims VPX launched BANG around 2012. (Id. ¶ 9.) The original version of BANG contained creatyl-l-glutamine (“CLG”). (Id. ¶ 11.) In 2013, the U.S. Patent and Trade Office (“USPTO”) issued U.S. Patent No. 8,445,466 (“’466 Patent”) to Mr. Owoc. (Id. ¶ 12.) The ’466 Patent relates “generally to stable aqueous solutions of creatine, methods for their preparation and methods of use.” (Id.) Beginning in 2015, the BANG formula was changed to replace CLG with creatyl-l-leucine (“CLL”), a novel ingredient marketed under the trademark “Super Creatine.” (Id. ¶¶ 13–14; DSGD ¶ 7.) CLL is a creatyl amide that combines creatine and leucine with a covalent amide bond. (DSGD ¶¶ 7–8; PSMF ¶ 2.) Defendants claim that CLL is more stable and more bioavailable than other forms of creatine. (DSUF ¶ 111.)

Monster asserts that Defendants falsely advertise Super Creatine in BANG as a source of creatine through statements on the BANG labels, social media posts, presentations, and other methods. (PSUF ¶ 4.) VPX and Mr. Owoc label and market BANG as providing numerous physical and mental benefits, due in part to Super Creatine. For example, they claim that BANG can improve brain function, has anti-depressive effects, and helps build muscle. (PExs. 62, 79, 12.) Studies have shown these effects from creatine. (DSUF ¶ 139.) BANG labels prominently feature the words “Super Creatine” on the can. (PSUF ¶ 3.) At some point, the cans also referenced “creatine.” (Id.) According to Monster, Defendants highlight Super Creatine as BANG’s “most important distinguishing feature for purposes of sales.” (Id. ¶ 6.)

Monster, however, disputes whether CLL is creatine or a source of creatine. (PSUF ¶ 5;

PSMF ¶ 1.) It asserts that creatine derivatives or creatine analogs like CLL are not creatine. (Id. ¶ 6.) “Creatine” is generally understood to mean creatine monohydrate. (Id. ¶ 7.) It is undisputed that BANG does not contain creatine monohydrate. (Id. ¶ 8.) No peer-reviewed study has examined CLL’s benefits, its metabolic fate, or whether it is an effective source of creatine. (DSUF ¶¶ 132–134.)



C. Shelf Space Interference Claims

Energy drink companies know the importance of shelf space to a product’s performance and often assess and negotiate for shelf space opportunities at retail locations. (Id. ¶¶ 150, 169, 172.) When shelf space is contracted-for, suppliers, distributors, retailers, franchisees, store managers, and independent stores must abide by the contract’s terms and applicable planogram. (PEx. 429 at 257:3-258:21; Pl.’s Response to DSUF ¶¶ 159, 170.) Retailers have discretion on how to allocate shelf space, but this discretion generally does not apply to contracted-for shelf space. (DSUF ¶¶ 154, 156, 158, 171.) Retailers and manufacturers may move around products in non-contracted for shelf space. (Id. ¶¶ 165–166.)

Monster holds contracts for in-store shelf space with major United States retailers, including AMPM, Circle K, and Walmart. (Pl.’s Response to DSUF ¶¶ 152, 155; PEx. 359 ¶¶ 101–113; Dkt. No. 69-9, Exs. 36, 48–50.) However, the parties dispute the extent to which Monster enters into these contracts. (DSUF ¶¶ 152–153.) Monster asserts that VPX directed BANG representatives to displace competing energy drinks, including Monster, from their contractually guaranteed shelf space and replace it with BANG at retail locations in numerous states. (Pl.’s Response to DSUF ¶¶ 157, 183–188, 190.) VPX claims that Monster lacks evidence of VPX’s interference and, even if such evidence existed, any alleged interference neither involved Monster’s contracted-for shelf space nor caused damages. (DSUF ¶¶ 157, 183–190.) Moreover, VPX asserts that there may be other reasons why a competitor’s product may be found in contracted-for shelf space, other than intentional interference. (Id. ¶¶ 176–180.)

D. Trade Secret Claims

Monster incorporates Nielsen and Information Resources, Inc. (“IRI”) data in its sales presentations and space planning software, and uses the data to track product trends over time. (Pl.’s Response to DSUF ¶ 195; DSUF ¶ 196.) While the raw data may be publicly available, Monster asserts that the compilation of this data is costly and proprietary. (Pl.’s Response to DSUF ¶¶ 194, 197.) Monster personnel use Nielsen and IRI data to craft a narrative. (Id. ¶ 195.)

The parties dispute whether VPX offered former Monster employees jobs with a significant salary increase, under the precondition that they bring Monster’s confidential pricing data with them to VPX. (Id. ¶¶ 200–230; Pl.’s Response to DSUF ¶¶ 200–230.) At least seven former Monster employees applied for and found jobs with VPX. (DSUF ¶¶ 206, 217–220, 227, 230.) VPX admits that one such employee retained and accessed information and documents belonging to Monster after joining VPX. (PEx. 353 at RFA Nos. 561–562.) Monster asserts that some of the employees accessed Monster-issued devices after separation from Monster and/or copied confidential information to USB devices. (Pl.’s Response to DSUF ¶¶ 221–222, 227, 229–230.) One former employee shared five USB devices with VPX’s in-house legal counsel, who viewed the files on the devices. (DSUF ¶¶ 207–211.) A current Monster employee claims that a VPX employee attempted to recruit him on the condition that he provide Monster’s confidential information to VPX. (DSUF ¶ 198; Pl.’s Response to DSUF ¶¶ 199–200.) VPX contests any assertion that VPX employees acted improperly. (DSUF ¶¶ 212–215, 221–232.)



IV. LEGAL STANDARDS A. Summary Judgment

Summary judgment is appropriate when there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying the portions of the pleadings and record that it believes demonstrate the absence of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

“When the moving party also bears the burden of persuasion at trial, to prevail on

summary judgment it must show that ‘the evidence is so powerful that no reasonable jury would be free to disbelieve it.’” Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008). This is “ordinarily a heavy burden.” Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018). By contrast, where the non-moving party bears the burden of proof at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party’s case. Celotex, 477 U.S. at 325. Instead, the moving party “must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

“If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Id. However, if the moving party has sustained its burden, the non-moving party must show that there is a genuine issue of material fact that must be resolved at trial. Celotex, 477 U.S. at 324. The non-moving party must make an affirmative showing on all matters placed at issue by the motion as to which it has the burden of proof at trial. Id. at 322; Anderson, 477 U.S. at 252. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. “The non-moving party must show more than the mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252).

When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). Summary judgment for the moving party is proper when a “rational trier of fact” would not be able to find for the non-moving party based on the record taken as a whole. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). //



Cross-motions for summary judgment “must be considered on [their] own merits.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001); Acosta v. City Nat’l Corp., 922 F.3d 880, 885 (9th Cir. 2019). Courts must review the evidence submitted in support of each cross-motion, and “give the nonmoving party in each instance the benefit of all reasonable inferences.” Am. Civil Liberties Union of Nev. v. City of Las Vegas, 466 F.3d 784, 791 (9th Cir. 2006); Tulalip Tribes of Wash. v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015).

V. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Monster moves for partial summary judgment on its false advertising claim under the Lanham Act, 11 U.S.C. § 1125(a). (See PMSJ.) For the reasons below, the Court finds that Monster failed to carry its burden on any element of a false advertising claim.

A. Count One: Violation of the Lanham Act, 11 U.S.C. § 1125(a)

Monster argues that Defendants falsely advertised their BANG energy drinks (“BANG”) and Super Creatine as a “source of creatine” in violation of the Lanham Act. (See PMSJ.) It contends that no reasonable jury would find for Defendants on the following four elements of its false advertisement claim: (1) false statement, (2) deception, (3) materiality, and (4) interstate commerce. (Id. at 15–25.) Defendants argue that they have never advertised BANG or Super Creatine as a “source of creatine,” that Monster has produced insufficient evidence to prevail, and that Monster fails to demonstrate Mr. Owoc’s liability. (See PMSJ Opp’n.) “Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) … created a private right of action against ‘[a]ny person’ who uses false descriptions or makes false representations in commerce.” College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). The elements of a false advertising claim under Section 43(a) of the Lanham Act are: (1) a false statement of fact about a product in a commercial advertisement; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material; (4) the defendant caused the statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997).

To constitute “commercial advertising or promotion,” a statement of fact must be:

(1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services. While the representations need not be made in a ‘classic advertising campaign,’ but may consist instead of more informal types of ‘promotion,’ the representations (4) must be disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within that industry.

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Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1054 (9th Cir. 2008) (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999)). “Although advertising is generally understood to consist of widespread communication through print or broadcast media, ‘promotion’ may take other forms of publicity used in the relevant industry, such as displays at trade shows and sales presentations to buyers.” Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002); see also Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 801 (6th Cir. 2015) (recognizing that “the most focused advertisements or promotions may not be widely disseminated at all”).

1. False Statement

The Lanham Act recognizes two kinds of false statements: (1) a statement that is “literally false, either on its face or by necessary implication,”; or (2) those that are “literally true but likely to mislead or confuse consumers.” Southland Sod Farms, 108 F.3d at 1139. Here, Monster asserts that Defendants advertising of BANG and Super Creatine as “a source of creatine” are literally false.2 (PMSJ at 16.)

To determine literal falsity, a statement “must always be analyzed in its full context.”

Southland Sod Farms, 108 F.3d at 1139. “Only an unambiguous message … can be literally false.” Suzie’s Brewery Co. v. Anheuser-Busch Cos., 519 F. Supp. 3d 839, 846 (D. Or. 2021) (quoting Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007)). “[A] literally false message need not be explicit.” In-N-Out Burgers v. Smashburger IP Holder LLC, 2019 WL 1431904, at *4 (C.D. Cal. Feb. 6, 2019). It may be “literally false by necessary implication where ‘the audience would recognize the claim as readily as if it had been explicitly stated.’” Clorox Co. v. Reckitt Benckiser Grp. PLC, 398 F. Supp. 3d 623, 635 (N.D. Cal. 2019). “The greater the degree to which a message relies upon the viewer or consumer to integrate its components and draw the conclusion, however, the less likely it is that a finding of literal falsity will be supported.” Novartis Consumer Health, Inc. v. Johnson & Johnson Merck Consumer Pharms. Co., 290 F.3d 578, 587 (3d Cir. 2002) (quoting United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1181 (8th Cir. 1998)). “Literal falsity is a question of fact, and summary judgment should not be granted where a reasonable jury could conclude a statement is not false.” ITEX Corp. v. Global Links Corp., 90 F. Supp. 3d 1158 (D. Nev. 2015) (quoting K & N Eng’g, Inc. v. Spectre Performance, 2011 WL 4387094, at *9 (C.D. Cal. Sept. 20, 2011)).

Monster does not assert a theory of facial literal falsity here—nor could it. None of the allegedly false statements include the phrase “source of creatine.”3 Instead, Monster argues that

2 Monster alleges both theories. (FAC ¶ 122 (alleging that Defendants’ statements “are

expressly false, impliedly false, or both”).) While it only raises literal falsity in the PMSJ, Monster “reserves the right to make implied falsity arguments at trial.” (PMSJ at 15 n.3.)

3 Monster only offers Defendants’ opposition to its motion for preliminary injunction as evidence that Defendants describe Super Creatine as a “source of creatine.” (PMSJ at 17 (citing “PI Opposition,” Dkt. No. 96).) However, as Defendants note, these statements are not part of a commercial advertisement. (PMSJ Opp’n at 6.) Further, any advertisement that requires a



Defendants necessarily imply that BANG or Super Creatine is “a source of creatine” by claiming that (1) Super Creatine is creatine, and (2) Super Creatine provides the benefits of creatine. (PMSJ at 18–21; PMSJ Reply at 3–4.) Monster identifies the following statements:

Calling creatyl-l-leucine (“CLL”) “Super Creatine”’ Describing Super Creatine as “creatine bonded to L-leucine” or “Stable Aqueous

Amide-Protected Bioactive Creatine Species”; Stating that BANG contains “Creatine, Caffeine, CoQ10 & BCAAs”; Using the slogan “Ice Cold Creatine”; Equating the health benefits of creatine monohydrate with that of CLL; and Referencing “creatine” without specifying Super Creatine or creatine monohydrate.

(PMSJ at 18.) These statements appear on (a) BANG labels; (b) Defendants’ social media posts, online marketing, press releases, and other advertisements at trade shows, expos, and in retail stores; and (c) emails to VPX’s retail and distribution partners. (Id. at 17.) Monster contends that the statements are literally false because neither Super Creatine nor BANG contains “creatine,” generally understood as “creatine monohydrate,” or has the benefits of creatine. (Id. at 15–22.)

Defendants argue that none of the allegedly false statements is in a “commercial advertisement,” as required under the Lanham Act.4 (PMSJ Opp’n at 5–7, 12–13.) Nor, in their view, do the identified statements unambiguously claim that Super Creatine or BANG is a source of creatine or that Super Creatine or BANG provides the benefits of creatine. (Id. at 7–13.) Even if the statements did convey such messages, Defendants assert that Monster cannot establish falsity as a matter of law because Monster fails to show that Super Creatine does not provide the benefits of creatine. (Id. at 14–18.)

Construing all evidence in Defendants’ favor, the Court finds that Monster fails to

produce evidence so convincing that no reasonable jury would disbelieve that the challenged statements necessarily imply that Super Creatine or BANG is a source of creatine. //

consumer to rely on the PI Opposition to understand its message is not unambiguous. Suzie’s Brewery Co., 519 F. Supp. 3d at 846. Though the Court agrees with Monster that Defendants cannot avoid claims they previously made on the record, the references to “source of creatine” in the PI Opposition hold limited, if any, relevance to the Motions.

4 Defendants object to the social media posts and screen captures of websites as improperly authenticated. The Court finds that the declarations and the method used to capture these posts and websites are sufficient to establish the exhibits’ authenticity. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (noting that “computer printouts are the only practical method by which the allegations of the complaint can be brought before the Court”).



a. “Source of Creatine” as Statement of Fact At base, Monster must show that the implied message—that BANG or Super Creatine is

a “source of creatine”—is a statement of fact, but they fail to do so. A statement of fact is “a specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact.” Coastal Abstract Serv., Inc., 173 F.3d at 731. A “vague and subjective” assertion is not a statement of fact. Id.

Here, “source of creatine” is vague. As Defendants note, “source” is already an

ambiguous term.5 (PSUF ¶ 4.) Monster concedes that “creatine” also holds more than one meaning. One expert report explains that “creatine” has at least three different usages: (1) naturally occurring creatine, or “endogenous creatine” (“N-aminoiminomethyl-N-methyl glycine”), (2) “creatine monohydrate,” which is what “the sports nutrition and exercise science community” understand as “creatine,” and (3) alternate and “novel forms” of creatine that are not creatine monohydrate. (Kreider Report ¶¶ 20, 40, 42; DSUF ¶ 6.) Another expert for Monster opines that a compound must “possess the full [chemical] structure of creatine without any new covalent bonds” to be considered creatine by “practitioners,” which Super Creatine does not have. (Renslo Report ¶¶ 14, 21–28.) But Monster later claims that “the molecular structure of CLL is not evidence that Super Creatine is a source of creatine.” (Pl.’s Response to DSGD ¶ 8.) As such, the phrase “source of creatine” is not without ambiguity. See, e.g., Honeywell Int’l Inc. v. ICM Controls Corp., 45 F. Supp. 3d 969 (D. Minn. 2014) (finding “that the phrase ‘Made in the USA’ is not unambiguous enough in the context of this case” to show literal falsity and no “single case [ ] ha[d] found the phrase unambiguous”); c.f. Merck Eprova AG v. Gnosis S.p.A., 901 F. Supp. 2d 436, 452 (S.D.N.Y. 2012) (determining on a post-trial motion that defendant’s “use of the common name and abbreviation” for a nutritional supplement was “literally false,” where plaintiff had “presented a wealth of evidence” that the terms were used “only to the 6S Isomer Product”; plaintiff’s experts “testified credibly that under the existing conventions in the scientific community, the common name and abbreviation are used only to refer to the 6S Isomer Product”; and even defendant’s expert “conceded that he was aware of no scientific or scholarly article” that used the challenged terms “to refer to anything other than the pure isomer”).

At the April 4, 2022 hearing, Monster argued that “source of creatine” is a statement of fact because creatine holds a specific definition. It asserted that “creatine” means a substance that contains a molecule of creatine and breaks down when ingested to provide benefits to the body. Problematically, however, Monster provided this definition for the first time at the hearing. Moreover, it is somewhat inconsistent with Monster’s use of the phrase “source of creatine” in the PMSJ. //

5 See “Source,” Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/source (providing multiple definitions of “source,” including “a generative force : CAUSE” and “a point of origin or procurement : BEGINNING”).



In the PMSJ, Monster alternates between two interpretations of “source of creatine.” It uses “source of creatine” to mean (1) a product or substance that “contains” creatine, and (2) a product or substance that is a “creatine supplement,” or “dietary source of creatine.” (PMSJ Reply at 4–5; PMSJ at 10; Kreider Depo. 210:8-10; PSUF ¶¶ 4–5.) In the PMSJ, Monster applies the first definition to Defendants’ statements claiming that Super Creatine is “creatine.” It relies on the second definition to discuss Defendants’ statements that Super Creatine provides the benefits of “creatine,” and asserts that “[b]ecause it is not creatine, for CLL to be considered a source of creatine, it must convert into creatine and increase the body’s creatine levels.”6 (Id. at 10.) Monster cannot demonstrate that “source of creatine” is an unambiguous message, capable of being proved false, when it must employ two different definitions to reach its conclusion. See United Indus. Corp., 140 F.3d at 1181 (“Commercial claims that are implicit, attenuated, or merely suggestive usually cannot be fairly characterized as literally false.”). Monster’s own evidence—an incoherent mixture of statements about BANG “contain[ing]” Super Creatine, “the benefits of creatine,” and whether Super Creatine is “a bioavailable or physiologically effective source of creatine” (PSUF ¶¶ 4–5 (citing to Dkt. Nos. 434-19, 434-108, 434-15 at 9))—underscores this deficiency.

Monster’s cited authority offers no reprieve as those cases involve a specifically defined claim expressly stated by the defendant. See Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 13 (7th Cir. 1992) (affirming lower court’s finding that defendant’s statements that Ricelyte is “a rice-based oral electrolyte solution” and that it “contains ‘rice carbohydrate molecule’” were “literally false” where “rice-based solutions” had been studied, “‘rice-based’ [was] a term of art used to describe oral electrolyte solutions made from rice grain powder, solutions,” and the World Health Organization had “warned Mead that ‘the generally accepted meaning of “rice-based” cannot reasonably be applied to Ricelyte’”); Schering-Plough Healthcare Prods., Inc. v. Neutrogena Corp., 2010 WL 1992247, at *3 (D. Del. May 18, 2010) (rejecting argument that a product without DEHN could be called “Helioplex” when “Defendant expressly defined Helioplex to the consuming public” as containing DEHN); In-N-Out Burgers, 2019 WL 1431904, at *5 (finding “double the beef” slogan literally false when “the plain meaning of the term ‘beef,’” was not synonymous with “patty” and “[t]he phrase ‘double the beef in every bite’ unambiguously refers to the amount of beef in the burger, rather than the number of layers of beef”).

Accordingly, the Court concludes that “source of creatine” is not capable of being proved false or reasonably interpreted as a statement of fact. Even if, as Monster notes, Defendants have previously described Super Creatine and BANG as a “creatine source” to the Court (Dkt. No. 96 at 3, 15, 17), Monster holds the burden of showing that it prevails on every element of its Lanham Act claim, including the existence of a statement of fact. It has not done so here. //

6 Monster seems to claim that “source of creatine” means any manufactured creatine

supplement which becomes endogenous creatine, or creatine synthesized endogenously by the human body. (Kreider Report ¶¶ 20, 30.)



b. Literal Falsity of Challenged Statements Even if Monster had demonstrated that “source of creatine” is a statement of fact,

Monster fails to show that any of Defendants’ advertisements unambiguously conveyed that BANG or Super Creatine is a “source of creatine.” Monster points to statements in the labels of BANG energy drink cans; Defendants’ social media posts, online marketing, press releases, and other advertisements at trade shows, expos, and in retail stores; and emails to VPX retailers and distributors. Though these advertisements may contain other literal falsities, the Court cannot find from the evidence that an audience would necessarily understand them to imply that BANG or Super Creatine is a “source of creatine.” Moreover, Monster’s failure to prove that “source of creatine” is a statement of fact further impedes its ability to prove its claim.

To show literal falsity, any necessarily implied message must be unambiguous. Suzie’s

Brewery Co., 519 F. Supp. 3d 839, 846 (D. Or. 2021). As an initial matter, none of the challenged statements uses the phrase “source of creatine.” Instead, as discussed above, Monster relies on Defendants’ purported representations that (1) Super Creatine is creatine and (2) Super Creatine provides the benefits of creatine to argue that Defendants claim BANG or Super Creatine as a “source of creatine.” (PMSJ at 17.) This position already requires a significant inferential leap. But a second issue arises: no statement expressly claims that Super Creatine is creatine or that Super Creatine provides the benefits of “creatine.” Monster proposes that a consumer could reach one necessarily implied conclusion from another implied message.

The Court rejects this proposition. As the challenged statements reveal, Monster’s

argument is based on implicit and attenuated claims that may be misleading but not literally false. United Indus. Corp., 140 F.3d at 1181.

i. BANG Labels First, Monster argues that Defendants advertise Super Creatine as creatine on the labels

of BANG energy drinks. (Id. at 18; PSUF ¶ 37.) In support, it provides twenty-one different flat labels for BANG.8 (PExs. 92–112.) The first fifteen labels appear to be versions used before 2019 (PExs. 92–106), while the last six labels are those used since 2019.9 (PExs. 107–112.) Every label has “SUPER CREATINE” printed at the top alongside “ULTRA COQ10.” The pre-2019 labels also state “BCAA AMINOS,” while the post-2019 labels state “EAA AMINOS.” In the pre-2019 labels, the back description states, “Power up with BANG’s potent brain & body-

7 Though Defendants take issue with Monster’s characterization of the evidence cited in

PSUF ¶ 3, none of the evidence Defendants cite places Monster’s fact in dispute. Accordingly, the Court finds that PSUF ¶ 3 is undisputed.

8 Defendants do not dispute, and the Court finds, that these labels are commercial advertising or promotion. See, e.g., Alfasigma USA, Inc. v. Nivagen Pharms., Inc., 2018 WL 4409350, at *5 (E.D. Cal. Sept. 17, 2018).

9 Both parties acknowledge that in 2019, VPX replaced “Creatine” with “Super Creatine” in this description. (PMSJ at 18 n.6; PMSJ Opp’n at 7; PMSJ Reply at 4 n.4.)



rocking fuel: Creatine, Caffeine, CoQ10 & BCAAs (Branched Chain Amino Acids).” The post-2019 labels replace “Creatine” with “Super Creatine®” and BCAAs with “EAAs (Essential Amino Acids).” Each label lists “SUPER CREATINETM (Creatyl L-Leucine [creatine bonded to L-Leucine])” as an ingredient. The phrase “Stable Aqueous Amide-Protected Bioactive Creatine Species” runs next to the nutrition panel with CLL’s patent number for CLL.

Defendants argue that the BANG labels only expressly advertise the presence of Super

Creatine. (PMSJ Opp’n at 7.) They note that the ingredients section lists Super Creatine, which is specifically defined as “creatyl-l-leucine,” but not “creatine,” and that the pre-2019 labels never stated “creatine” without also stating “Super Creatine” elsewhere. (PMSJ Opp’n at 7–8.) While true, the Court finds that the statements advertising Super Creatine, taken in context, necessarily imply that Super Creatine is a form of “creatine.” Super Creatine is defined as “creatyl-l-leucine,” but in a small font and followed immediately by the explanation “Creatine bonded to L-Leucine.” The labels also refer to Super Creatine as a “Creatine Species.” Using “creatine” more than once to describe Super Creatine unambiguously expresses that Super Creatine is creatine. See Groupe SEB USA, Inc. v. Euro-Pro Operating LLC, 774 F.3d 192, 199 (3d Cir. 2014) (“When a product’s packaging includes an advertising claim and unambiguously defines a claim term, the packaging’s definition of the claim term applies to the claim’s explicit message.”). Indeed, this message is more explicit in the pre-2019 labels, which state that BANG has “Creatine” without qualifying it as Super Creatine. Therefore, the labels necessarily imply that BANG contains “creatine.” However, Monster does not argue that Defendants unambiguously claim that BANG and Super Creatine contain creatine; its position is that Defendants necessarily imply that BANG and Super Creatine are a “source of creatine.” Unless a consumer integrates an outside understanding of “source” and “creatine,” a consumer is unlikely to reach this conclusion. Monster avers that the statements on the BANG labels must be understood as “source of creatine.” (PMSJ Reply at 4.) Yet, it proffers no evidence to show that a consumer would perceive this to be true and as if it had been explicitly claimed. Nor do the labels’ “words and images, considered in context, necessarily and unambiguously imply” that Super Creatine is a creatine supplement. FLIR Sys., Inc. v. Sierra Media, Inc., 903 F. Supp. 2d 1120, 1130 (D. Or. 2012). Because other key ingredients, such as “Ultra CoQ10,” “BCAA Aminos,” and “EAA Aminos,” are highlighted with Super Creatine, a consumer is unlikely to conclude that BANG specifically supplements creatine. Accordingly, the Court concludes that the BANG labels fail to unambiguously convey that BANG and Super Creatine are a “source of creatine.”

Moreover, whether the claim is Super Creatine as creatine or Super Creatine as “source of creatine,” Monster fails to show that such a statement is literally false. To demonstrate falsity, Monster submits evidence that creatine is “understood in the sports nutrition and exercise science community to refer to ‘creatine monohydrate.’” (Kreider Report ¶ 42.) One expert states that CLL “is not bioavailable” and that even a “high-dose CLL has no effect on blood, muscle, or brain creatine content.” (Id. ¶ 138.) Another expert for Monster states that Super Creatine contains a creatyl amide, which is structurally different from “the creatine complex. (Renslo Expert Report ¶ 24.) He states that while Super Creatine may be a “creatine analog,” it



is not “creatine” because it does not “possess the full structure of creatine without any new covalent bonds.” (Id. ¶¶ 14, 24.) Yet, he opines that it is “inaccurate”—not outright false—to describe CLL or Super Creatine as “creatine,” “a form of creatine,” or “containing creatine.” (Id. ¶ 13.) As Defendants argued at the April 4, 2022 hearing, one of their experts, Guillermo Escalante, also opines that CLL is a form of creatine. Mr. Escalante further opines that CLL could be a form of a creatine derivative, but that it has not been sufficiently studied to conclude that this is the case. In addition and as noted above, both parties submit evidence that the word “creatine” has many different usages, including most commonly for naturally occurring creatine and creatine monohydrate. Drawing all inferences in Defendants’ favor, the Court finds that the evidence does not definitely show that Super Creatine is not creatine or not a source of creatine. Accordingly, the Court concludes that Monster fails to show that statements on BANG labels implying that Super Creatine is creatine or a source of creatine are a literal falsity.

ii. Statements about Benefits of Creatine

Second, Monster argues that Defendants advertise Super Creatine as providing the health

benefits of “creatine.” It points to statements in Defendants’ social media posts, online marketing, press releases, and other advertisements at trade shows, expos, and in retail stores, as well as emails to retail and distribution partners. Because the Court agrees with Defendants that the emails do not constitute commercial advertising or promotion, it does not consider them.10

10 Monster does not address this argument. Though the emails are sealed, Defendants

claim that the emails are a “one-off email,” “an internal VPX email from a sales representative reporting on an in-person meeting with a retailer,” and “an email between a VPX sales representative and one distributor in the context of contract negotiations.” (PMSJ Opp’n at 13; PMSJ at 21 (citing to PEx. 80–82); Hayden Decl. ¶¶ 81–83).) “[A] single promotional [email] to an individual purchaser may be enough to trigger the protections of the Act,” if “the potential purchasers in the market are relatively limited in number.” Coastal Abstract Serv., 173 F.3d at 735. By contrast, a single email “to one other person” that is not “disseminated sufficiently to the relevant purchasing public” is a “personal correspondence.” Youngevity Int’l v. Smith, 2019 WL 2918161, at *8 (S.D. Cal. July 5, 2019). While the emails here have some promotional qualities, Monster “provide[s] no evidence of dissemination to the relevant purchasing public beyond the emails themselves and no evidence that the ‘potential purchasers in the market are relatively limited in number.’” Kremerman v. Open Source Steel, LLC, 2018 WL 5785441, at *18 (W.D. Wash. Nov. 5, 2018) (quoting Coastal Abstract Serv., 173 F.3d at 735). Accordingly, they are not commercial advertising or promotion.

The Court, however, rejects Defendants’ assertion that oral statements to customers and

statements made in the context of contract negotiations do not constitute commercial advertising. (PMSJ Opp’n at 13–14 (citing Fashion Boutique, 314 F.3d at 57, and Par Sterile Prods., LLC v. Fresenius Kabi, USA LLC, 2015 WL 1263041, at *6 (N.D. Ill. Mar. 17, 2015)).) Fashion Boutique does not support their position. Fashion Boutique of Short Hills, 314 F.3d at 57 (addressing only “isolated disparaging statements). And Par Sterile Prods. relied on a Seventh Circuit rule excluding “person-to-person pitch[es]” that has not been adopted by the Ninth



The Court finds that the statements Monster identifies do necessarily imply that Super Creatine has creatine’s health benefits. In one social media post from Mr. Owoc’s account, the post features a photo of a BANG hat and includes the same statement made on BANG labels: “Make no mistake – BANG is not your stereotypical high sugar, life-sucking soda masquerading as an energy drink! High sugar drinks spike blood sugar producing metabolic mayhem causing you to crash harder than a test dummy into a brick wall. Power up with BANG’s potential brain and body-rocking fuels: Creatine, Caffeine CoQ10 and BCAAs!” (PEx. 62.)

A different post from @bangenergy, states that BANG is “potent brain fuel,” and “Here’s what Super Creatine has been proven to do for you: Be neuroprotective in the brain, Increases cognition, Increases attention span, Delays mental fatigue, Has anti-depressive effects, Has antioxidant effects in the brain.” (PEx. 79.)

One post from Mr. Owoc shows a photo of a water-filled beaker on a scale and states:

HOW MY PATENTED SUPER CREATINE WORKS! Super Creatine is special in many ways. First of all, it’s the world’s only stable creatine-amino acid peptide contained in @BangEnergy. Secondly, unlike leucine and unlike creatine, both of which are not soluble in water, Super Creatine is the most soluble creatine peptide known to man. Furthermore, scientifically speaking, increased solubility means increased bio-availability. Thirdly, from an efficacy standpoint, combining the world’s most studied and most performance enhancing and muscle building amino acids into one peptide that are also able to initiate protein synthesis by way of mTOR activation is arguably the greatest innovation in the history of sports nutrition and beverages. Please tag three of your friends who are all about the gains and all about the science. #Creatine #BCAA #Bodybuilding #Fitness #Muscle #Peptide #BangEnergy #Bang #PreWorkout #PostWorkout.

(PEx. 12.)

The Court agrees with Monster that these posts conflate Super Creatine with creatine

and expressly claim that Super Creatine help build muscles and enhance cognitive function. By emphasizing bioavailability, solubility, and sports nutrition, the posts unambiguously express that Super Creatine will be absorbed in the body and provide the same, if not more, health benefits than creatine. The posts also convey that BANG is healthier than other energy drinks because it contains less sugar and more fueling ingredients like creatine. References to science and the picture of the beaker support this message. (PMSJ at 20.) Accordingly, these statements necessarily imply that Super Creatine and BANG provide the health benefits of creatine. Furthermore, Monster sets forth significant evidence to suggest that this claim is literally false.

Circuit. Par Sterile Prods., LLC, 2015 WL 1263041, at *6 (citing First Health Grp. Corp. v. BCE Emergis Corp., 269 F.3d 800, 803–04 (7th Cir. 2001)); see also Gonzalez v. Allstate Ins. Co., 2005 WL 5891935, at *7 (C.D. Cal. Aug. 2, 2005).



Even so, the Court cannot conclude that Monster prevails. For the posts to necessarily

imply that Super Creatine and BANG are a “source of creatine,” the Court must determine that “source of creatine” unambiguously conveys Monster’s purported definition: that “creatine” means a substance that contains a molecule of creatine and breaks down when ingested to provide benefits to the body. However, as discussed above, the Court does not find that a consumer could reach this conclusion. This ambiguity and failure to link the challenged statements with the message that Super Creatine and BANG are a “source of creatine” precludes summary judgment. Accordingly, the Court DENIES the PMSJ on this first element.

2. Deceptiveness

For the second element of a false advertising claim, Monster must show that Defendants’ allegedly false statements “actually deceived or has the tendency to deceive a substantial segment of its audience.” Southland Sod Farms, 108 F.3d at 1139. Monster argues that “[t]he literal falsity of Defendants’ claims creates the presumption” that consumers were deceived. (PMSJ at 23 (citing In-N-Out Burgers, 2019 WL 1431904, at *7, and Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 209 (9th Cir. 1989)); PMSJ Reply at 9.)

Monster’s position is correct that actual deception is presumed if it had established that

Defendants made literally false statements claiming that BANG or Super Creatine is a “source of creatine.” Mutual Pharm. Co. v. Ivax Pharm., Inc., 457 F. Supp. 2d 925, 933 (C.D. Cal. 2006) (quoting Scotts Co. v. United Indus. Corp., 315 F.3d 264, 273 (4th Cir. 2002)); Factory Direct Wholesale, LLC v. iTouchless Housewares & Prods., Inc., 411 F. Supp. 3d 905, 924 (N.D. Cal. 2019) (same). But, as discussed above, it has not established literal falsity.11 Because Monster presents no other argument on this element, it has not met its burden of showing consumer deception. Accordingly, the Court DENIES the PMSJ on the deceptiveness element.

3. Materiality

To prevail on the third element, Monster must demonstrate that Defendants’ deception was “material, in that it is likely to influence the purchasing decision.” Southland Sod Farms, 108 F.3d at 1139. Materiality may be proven “through consumer surveys, which provide direct evidence of a statement’s impact,” or “by showing that the defendants misrepresented an inherent quality or characteristic of the product.” Clorox Co. v. Reckitt Benckiser Grp. PLC, 398 F. Supp. 3d 623, 644 (N.D. Cal. 2019) (internal citations omitted); see also POM Wonderful LLC v. Purely Juice, Inc., 2008 WL 422045, at *11 (C.D. Cal. July 17, 2008) (finding false advertising material when it “pertained to the very nature of its juice product”).

11 A false advertisement claim “premised upon a claim of implied falsehood” requires a

plaintiff to “demonstrate, by extrinsic evidence, that the challenged [advertisements] tend to mislead or confuse consumers.” Mutual Pharm. Co., 457 F. Supp. 2d at 933 (quoting Scotts Co., 315 F.3d at 273).



Monster argues that Defendants’ claims equating Super Creatine with creatine and stating that Super Creatine offers the benefits of creatine misrepresent an ingredient, which is an inherent quality of Super Creatine. (PMSJ at 23–24.) As discussed above, if these were the literally false statements at the core of the PMSJ, Monster submits evidence of materiality, such as consumer inquiries about creatine in BANG, the prominence of “SUPER CREATINE” in Defendants’ advertising, and Mr. Owoc’s statements that Super Creatine is “the primary ingredient found in BANG, which drives the BANG formula.” (Id. at 24; see PEx. 144.) While Defendants provide some evidence that BANG consumers rely on other qualities about BANG to purchase the drink, they fail to genuinely dispute that Super Creatine is a significant reason why consumers purchase BANG. (DSGD ¶ 17; PMSJ Reply at 10.) A reasonable jury drawing all inferences in Defendants’ favor, is unlikely to conclude that Defendants’ purported representations that Super Creatine is creatine is immaterial.

However, Monster seems to forget that the false statement it challenges is that “BANG

and ‘Super Creatine’ [are] a source of creatine.” (Id. at 16.) Because Monster fails to show that Defendants’ statements unambiguously convey that BANG or Super Creatine is a “source of creatine,” its reliance on evidence that shows the materiality of Super Creatine as creatine or as providing the benefits of creatine do not support its position. C.f. San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 360 F. Supp. 3d 1039, 1052 (S.D. Cal. 2019) (noting that materiality “are presumed” when “a statement is literally false”). Monster does not produce any evidence that specifically shows that BANG or Super Creatine’s purported feature as a “source of creatine” influences consumers’ purchasing decisions. Accordingly, Monster fails to meet its burden of showing materiality, and the Court DENIES the PMSJ on this element.

4. Interstate Commerce

Under the fourth element of its Lanham Act claim, Monster must show that Defendants “caused its false statement to enter interstate commerce.” Southland Sod Farms, 108 F.3d at 1139. As Monster notes, Defendants do not dispute that the identified advertisements were placed in interstate commerce. However, as with the other elements, Monster cannot prevail on this element because it fails to show that statements about BANG and Super Creatine as a “source of creatine” entered interstate commerce. Accordingly, the Court DENIES the PMSJ on this element. In sum, Monster fails to show that it prevails on the false statement, deception, materiality, or interstate commerce elements of its Lanham Act claim. Because the Court finds that Monster has not met its burden generally, the Court need not consider Defendants’ argument in the PMSJ Opposition that Monster fails to demonstrate Lanham Act liability for Mr. Owoc. Accordingly, the Court DENIES the PMSJ in its entirety. // // // //



VI. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Both VPX and Mr. Owoc move for summary judgment on Monster’s eight claims: (1) false advertising in violation of the Lanham Act, UCL, and FAL; (2) intentional interference with contractual relations; (3) intentional interference with prospective economic advantage; (4) misappropriation of trade secrets in violation of the California Uniform Trade Secrets Act (“CUTSA”), Cal. Civ. Code § 3426, et seq., and the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836, et seq.; and (5) violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq. (See VPX MSJ; Owoc MSJ.) They also seek to dismiss Monster’s claim for punitive damages. (Id.) VPX argues that Monster fails to prove elements of its claims. (See VPX MSJ.) Mr. Owoc argues that he cannot be held vicariously liable for VPX’s actions because he is a corporate officer. (See Owoc MSJ.) Incorporating the VPX MSJ, he further contends that Monster cannot show he is personally liable on any claim. (Id.) Given the overlapping claims and arguments, the Court considers the VPX MSJ and the Owoc MSJ together. A. False Advertising Claims: Violations of Section 43(a) of the Lanham Act (Count One),

UCL (Count Two), and FAL (Count Three)

Defendants both move for summary judgment on Monster’s Lanham Act, UCL, and FAL claims for false advertising. VPX argues that no reasonable jury would conclude that its statements about Super Creatine, BANG, and competitor products are literally or impliedly false. (VPX MSJ at 2–13.) Mr. Owoc argues that, for the same reasons set forth in the VPX MSJ, Monster fails to show that he personally made false statements about Super Creatine or BANG. (Owoc MSJ at 11–12.)

Courts apply the same analysis to Lanham Act, unfair competition, and false advertising claims where, as here, they are based on the same alleged conduct. See Cleary v. News Corp., 30 F.3d 1255, 1262–63 (9th Cir. 1994) (violations of UCL are “substantially congruent” to claims under the Lanham Act); L.A. Taxi Coop., Inc. v. Uber Techs., Inc., 114 F. Supp. 3d 852, 860 (N.D. Cal. 2015) (claims brought under Cal. Bus. & Prof. Code § 17055 are substantially congruent to false advertising claims brought under the Lanham Act). Accordingly, the Court analyzes Counts One through Three under the Lanham Act standard.12

1. VPX

a. False Statement

VPX argues that Monster cannot show that any of the following claims allegedly made by Defendants are literally false or misleading: (1) Super Creatine is creatine, (2) BANG contains

12 VPX asserts that false advertising claims “are governed by the ‘reasonable consumer’

test.” (VPX MSJ at 3.) For support, however, VPX cites cases considering only California law claims. The Court declines to apply California’s “reasonable consumer” test to a Lanham Act false advertising claim in the absence of authority.



creatine, (3) Super Creatine provides the benefits of creatine, (4) Super Creatine is patented technology, and (5) competitor energy drinks, including those sold by Monster, cause sugar crashes. (VPX MSJ at 3–9 (citing FAC ¶¶ 51–71, 85–92).) The Court considers whether each of these statements are literally false or misleading.

As defined above, “[o]nly an unambiguous message … can be literally false.” Suzie’s Brewery Co., 519 F. Supp. 3d at 846. The false message may be express on its face or necessarily implicated “where ‘the audience would recognize the claim as readily as if it had been explicitly stated.’” Clorox Co., 398 F. Supp. 3d 623, 635 (N.D. Cal. 2019). An advertising message “can be considered false” if it “means something different from what reasonable consumers would understand it to mean.” Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 66 (2d Cir. 2016). A statement “must always be analyzed in its full context.” Southland Sod Farms, 108 F.3d at 1139.

A statement that is “literally true but likely to mislead or confuse consumers” is also false. Southland Sod Farms, 108 F.3d at 1139. “Where a statement is not literally false and is only misleading in context, however, proof that the advertising actually conveyed the implied message and thereby deceived a significant portion of the recipients becomes critical.” William H. Morris Co. v. Group W, Inc., 66 F.3d 255, 258 (9th Cir. 1995). “Reactions of the public are typically tested through the use of consumer surveys.” Southland Sod Farms, 108 F.3d at 1140; see also Time Warner Cable, Inc., 497 F.3d at 155–56 (“[W]hen an advertisement relies on ‘clever use of innuendo, indirect intimations, and ambiguous suggestions,’ instead of literally false statements, the truth or falsity of the ad ‘usually should be tested by the reactions of the public.’”). However, “nothing in the Lanham Act … require[s] a plaintiff to use such surveys.” Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1111 (9th Cir. 2012) (accepting “declaration testimony instead of consumer surveys”). Expert testimony may support a showing of consumer deception. Southland Sod Farms, 108 F.3d at 1144.

i. Statements that Super Creatine Is Creatine

First, VPX contends that statements which equate Super Creatine to creatine are not literally false. (VPX MSJ at 4.) As an initial matter, both VPX and Monster force the Court to identify the unambiguous statement or advertisement that makes this claim.13 The Court could deny summary judgment on this basis alone. Jinni Tech, Ltd. v. Red.com, Inc., 2020 WL 1932696, at *8 (W.D. Wash. Apr. 20, 2020), aff’d in part, vacated in part on other grounds, 854 F. App’x 171, 172 (9th Cir. 2021) (finding that “Defendants have not met their burden to produce evidence negating an element of Plaintiffs’ claim” when they failed to identify “specific statements” such that “the court [was] unable to determine whether any specific statement is ambiguous or not”). However, because the parties vaguely reference the BANG can label, VPX

13 VPX cites allegations in the FAC, rather than evidence, and launches directly into

arguing about whether the claim is false. (VPX MSJ at 4.) Monster also avoids specifics, merely asserting that “Defendants tacitly concede” they make such statements. (VPX Opp’n at 2.) However, literal falsity is a context-specific inquiry. Southland Sod Farms, 108 F.3d at 1139.



presentations,14 and Defendants’ social media posts, and their use of the term “Super Creatine,” the Court proceeds with the analysis. (VPX Reply at 3; Pl.’s Response to DSUF ¶¶ 41–43 (citing PSUF ¶¶ 3–4).)

The Court finds that VPX fails to rebut Monster’s claim that the labels and presentations

necessarily imply that “Super Creatine” is creatine. Each of these items use the term “Super Creatine.” While the BANG labels and presentation define “Super Creatine” as “creatyl-L-leucine,” the use of the word “creatine” in “Super Creatine” necessarily implies that Super Creatine is a type of creatine. See Novartis Consumer Health, Inc., 290 F.3d at 589 (finding that the term “nighttime” in a product named “Night Time Strength” “necessarily conveys a message that the [ ] product is specially made to work at night”). VPX does not submit any evidence that demonstrates that a consumer does not understand “Super Creatine” to mean creatine. By contrast, Monster submits evidence that creatine in dietary products is generally understood as creatine monohydrate. (PSMF ¶ 7.) Accordingly, “Super Creatine” is not puffery but “a factual representation” used to “qualify an ingredient about which VPX makes specific claims.” In re Bang Energy Drink Mktg. Litig., 2020 WL 4458916, at *9.

Monster also raises a genuine dispute as to whether Super Creatine is “creatine.” It is undisputed that creatine is an amino acid that naturally occurs in the human body, that many forms of synthetic creatine exist in the marketplace, and that Super Creatine is not creatine monohydrate. (DSUF ¶¶ 113, 11415; VPX MSJ Opp’n at 6.) However, Monster presents significant expert testimony that questions whether Super Creatine’s chemical structure may properly constitute “creatine.” (VPX MSJ at 4; VPX MSJ Opp’n at 3–4.) One Monster expert explains that chemical forms of creatine do not contain a covalent bond, unlike Super Creatine. (VPX MSJ Opp’n at 3 n.3 (citing Renslo Report ¶ 14).) “As a general rule, summary judgment is inappropriate where an expert’s testimony supports the nonmoving party’s case.” Southland Sod Farms, 108 F.3d at 1144. Because a reasonable jury, drawing all inferences in Monster’s favor, may conclude that “Super Creatine” is not in fact creatine, summary judgment is not warranted on this claim. The Court need not consider whether a claim that Super Creatine is “creatine” is misleading. // //

14 Monster also identifies VPX’s press releases. (Pl.’s Response to DSUF ¶¶ 41–43

(citing PSUF ¶¶ 3–4).) However, Monster fails to set forth evidence showing that the press releases were actually distributed to the relevant public. Because Monster cannot demonstrate that the press releases are commercial advertisements, the Court does not consider them. By contrast, one of the presentations includes language that it is a presentation typically shared with potential distributors and retailers. (PEx. 84.) The Court finds that this presentation constitutes commercial advertising or promotion.

15 Monster disputes certain implications of this fact, but does not materially dispute the basic assertion that many forms of creatine exist. (Pl.’s Response to DSUF ¶ 113.) Accordingly, the Court finds that this fact is undisputed.



ii. Statements that BANG Contains Creatine

Next, VPX asserts that Monster cannot prove that BANG does not contain creatine. VPX again fails to identify the challenged statement or advertisement. Because the Court finds that a reasonable jury may conclude that the term “Super Creatine” on BANG labels necessarily implies that Super Creatine is “creatine,” it follows that a jury may conclude that the BANG labels necessarily convey that BANG contains creatine. See Abbott Labs., 971 F.2d at 14 (rejecting argument that name “Ricelyte” only conveys that rice is used “manufacturing Ricelyte” but does not necessarily convey that Ricelyte “contains rice and rice carbohydrates”); c.f. MillerCoors, LLC v. Anheuser-Busch Cos., 385 F. Supp. 3d 730, 746 (W.D. Wis. 2019) (finding that statements that beers “‘use’ or are ‘made with’ or ‘brewed with’ corn syrup” does not expressly imply that “corn syrup is actually in the finished product”) (emphasis in original). Moreover, because a genuine dispute exists as to whether Super Creatine is creatine, the jury, not the Court, must determine whether a claim that BANG contains creatine is literally false. Accordingly, the Court denies summary judgment on this claim.

iii. Statements that Super Creatine has Health Benefits

VPX further argues that its statements claiming that Super Creatine provides the benefits of creatine are not literally false. (VPX MSJ at 5–6.)

The Court finds that VPX fails to carry its burden of showing that the BANG labels, or

other advertisements, do not unambiguously convey this claim. First, VPX acknowledges that the BANG labels include the tagline “power up with BANG’s potent brain & body-rocking fuel,” but asserts that this statement is puffery. (VPX MSJ Reply at 3 (citing In re Bang Energy Drink Mktg. Litig., 2020 WL 9815622, at *3).) However, this statement is not the only indicator a consumer sees. “Super Creatine” is stamped prominently on the lip of the can, along with other highlighted ingredients like “BCAA Amino Acids” or “EAA Amino Acids” and “CoQ10,” and included in the ingredients list in bold. Together, the emphasis on “Super Creatine” as a nutritional ingredient combined with the statement “potent brain & body-rocking fuel” necessarily implies that Super Creatine provides benefits. As noted above, because a reasonable jury could conclude that “Super Creatine” necessarily implies creatine, then a reasonable jury may also conclude that the BANG label unambiguously expresses that Super Creatine offers the same, or enhanced, benefits of creatine.

Second, VPX fails to address the social media posts from VPX’s and Mr. Owoc’s

accounts that, in Monster’s view, claim that BANG and Super Creatine achieve creatine’s health effects. As the Court discussed above, these social media posts are commercial advertisements within the meaning of the Lanham Act. In the posts, statements that BANG contains “Super Creatine” immediately precede statements about creatine’s benefits. (Pl.’s Response to DSUF ¶¶ 41–43.) The posts state that BANG is distinguishable from other energy drinks because it contains Super Creatine, and encourage drinking BANG specifically as a pre-workout drink or post-workout drink. These statements necessarily imply that Super Creatine functions like creatine when consumed and are capable of being proven false. Accordingly, the statements in



the identified social media posts also necessarily imply that Super Creatine provides the nutritional benefits of creatine.

In addition, VPX has not met its burden of negating literal falsity by showing that Super

Creatine provides the benefits of creatine. VPX fails to set forth any affirmative evidence of Super Creatine’s benefits. The only evidence VPX produces is the opinions of experts that, due to the lack of studies around Super Creatine, they could not absolutely rule out a possibility that Super Creatine breaks down into creatine when consumed. (VPX MSJ at 5.) This is insufficient to negate Monster’s argument that Super Creatine does not provide the benefits of creatine. See Novartis Consumer Health, Inc., 290 F.3d at 590 (affirming district court’s finding that defendant’s “message of special formulation for nighttime relief that is necessarily implied from the [product’s] name” was “per se false” when the defendant did “not argue or present any evidence to show that [the product] was specifically formulated for night time heartburn or that its product actually remedies heartburn at night more effectively than heartburn during the daytime”). Moreover, Monster produces expert reports and studies that show Super Creatine is not bioavailable, meaning that it does not break down into creatine or increase endogenous creatine levels when ingested. (VPX MSJ Opp’n at 5–7.) Under these circumstances, a reasonable jury is likely to conclude that a claim that Super Creatine provides the health benefits of creatine is literally false. Accordingly, VPX cannot prevail on its motion on this basis.

iv. Statements Referencing the ’466 Patent In the FAC, Monster alleges that “VPX and Owoc rely heavily on the false claim that the

‘Super Creatine’ in BANG is patented technology,” and that Defendants reference U.S. Patent Number 8,445,466 (“’466 Patent”) in their promotions and directly on BANG can labels. (FAC ¶¶ 60–61.) It further alleges that any claims based on the ’466 Patent are literally false, as the U.S. Patent Office rejected the ‘466 Patent. (Id. ¶¶ 67–70.) VPX argues that these statements are not false because VPX’s appeal of ’466 Patent’s cancellation is still pending. (VPX MSJ at 6–7.) VPX submits a screenshot of Super Creatine’s trademark page on Justia, which shows the trademark’s status as “Cancellation Pending.” (DEx 55.) Monster does not address this argument or present any arguments based on a theory that the claim is misleading. Accordingly, the Court agrees with VPX that its statement that Super Creatine is patented technology is not literally false. Moreover, Monster has forfeited the opportunity to preserve its argument that the statement is misleading. The Court GRANTS the Motion to the extent that Monster’s false advertising claim arises from statements about the ’466 Patent.

v. Statements about “Sugar Crashes”

VPX contends that Monster cannot sustain a false advertising claim based on VPX’s allegedly disparaging statements that energy drinks from competitors cause sugar crashes. (VPX MSJ at 7.) At issue is the statement on BANG labels that “BANG is not your stereotypical high sugar, life-sucking soda masquerading as an energy drink! High sugar drinks spike blood sugar producing metabolic mayhem causing you to crash harder than a test dummy into a brick wall.” (VPX MSJ Opp’n at 8.) VPX argues that the statement that competitor drinks are “high sugar,



life-sucking soda” is mere puffery. (VPX MSJ Reply at 3.) Even if it were a statement of fact, VPX contends that the message is true because sugar-sweetened beverages can cause crashes. (VPX MSJ at 7; DSUF ¶ 143.) Monster argues that the statement is literally false because a “crash” describes reactive hypoglycemia, which Monster’s expert opines is different from the common feeling of fatigue that follows consumption of carbohydrates. (VPX MSJ Opp’n at 8; Pl.’s Response to DSUF ¶ 143 (citing PEx. 479).) The expert also opines that hypoglycemia is unlikely to occur from consuming Monster’s energy drink. (VPX MSJ Opp’n at 8.)

The Court finds that the challenged statement is not puffery. “[A]n advertiser treads a

far different line when it not only lauds its own products, but directly attacks a competitor.” Chobani, LLC v. Dannon Co., 157 F. Supp. 3d 190, 202 (N.D.N.Y. 2016) (internal citation omitted). Here, the statement unambiguously implies that energy drinks from competitors are high in sugar and cause sugar crashes. Id. at 196, 201–02 (finding that defendant’s commercial conveyed “that the sucralose contained in Dannon’s Light & Fit Greek renders it unsafe to eat,” when it stated that sucralose “has chlorine added to it”); see also Polar Corp. v. Coca-Cola Co., 871 F. Supp. 1520, 1521 (D. Mass. 1994) (finding that commercial “implied that Coke is not pure” when it displayed a polar bear “throw[ing] the can of Coke into a trash bin labeled ‘Keep the Arctic Pure”).

However, the Court finds that Monster fails to produce sufficient evidence to genuinely

dispute that the statement is false. As noted above, Monster seeks to distinguish between “fatigue caused by carbohydrates,” which it claims is not a “crash,” and hypoglycemia, which Monster asserts the statement describes. (VPX MSJ Opp’n at 8.) However, even drawing all inferences in Monster’s favor, a reasonable jury is unlikely to conclude that a “sugar crash” can only refer to hypoglycemia. Accordingly, the Court concludes that Monster fails to establish literal falsity for this statement. To the extent that Monster claims false advertising based on a theory of literal falsity on the “sugar crash” statement, the Court GRANTS the VPX MSJ.

On the other hand, VPX does not present any evidence to show that the “sugar crash”

statement is not misleading, whereas Monster does. (VPX MSJ Opp’n at 10.) Accordingly, the Court DENIES the VPX MSJ to the extent that Monster’s false advertising claim asserts that the challenged statement is misleading.

b. Deception and Materiality

VPX argues that Monster fails to show that a reasonable consumer was or may be materially deceived by VPX’s advertisements. (VPX MSJ at 8.) However, a literally false statement establishes deception. Factory Direct Wholesale, LLC, 411 F. Supp. 3d at 924. As discussed above, Monster has demonstrated a genuine dispute as to the literal falsity of: whether (1) Super Creatine is creatine, (2) BANG contains creatine, and (3) Super Creatine provides the benefits of creatine. Because a jury finding in favor of Monster on these claims would establish deception, the Court cannot grant summary judgment on this element. //



Moreover, Monster produces sufficient evidence to show that the deception was material. Materiality means that the deception “is likely to influence the purchasing decision.” Southland Sod Farms, 108 F.3d at 1139. It is undisputed that Monster conducted multiple consumer surveys about BANG and Super Creatine. (DSUF ¶¶ 6916–70, 74, 77.) It is further undisputed that at least some surveyed consumers indicated that they believed and liked that BANG’s label and “Super Creatine” communicate that BANG contains creatine or more creatine. (Id. ¶ 69.) The surveys also show that some consumers chose “health benefits” as important to their decision to purchase BANG. (See PEx. 380.) A reasonable jury could find that Defendants’ statements about Super Creatine are likely to influence consumers to buy BANG.

For misleading statements, like Defendants’ “sugar crash” claim, the Court agrees that

Monster need not identify a specific consumer who had been deceived by the message. (VPX MSJ Opp’n at 12.) But Monster must submit “extrinsic evidence, that the challenged [statements] tend to mislead or confuse consumers.” Mutual Pharm. Co., 457 F. Supp. 2d at 933. Here, Monster submits some evidence of misled or confused consumers. For example, there were survey participants who indicated that they liked BANG for its claims that it was a “healthier alternative to energy drinks” and labeled as containing “0 sugar, 0 calories, 0 carbs.” (VPX MSJ Opp’n at 12; DSUF ¶ 71.) A reasonable jury, drawing all inferences in Monster’s favor, may conclude that consumers pick BANG due in part to Defendants’ “sugar crash” claim. Accordingly, the Court concludes that VPX fails to show that summary judgment is warranted on deception or materiality for the remaining challenged statements.

c. Damages

The fifth element of a false advertising claim requires Monster to prove that it “has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products.” Southland Sod Farms, 108 F.3d at 1139. When a plaintiff seeks damages, “actual evidence of some injury resulting from the deception is an essential element of the plaintiff’s case.” Harper House v. Thomas Nelson, Inc., 889 F.2d 197, 210 (9th Cir. 1989) (emphasis in original). However, “[a]n inability to show actual damages does not alone preclude a recovery” under 15 U.S.C. § 1117(a). Obesity Research Inst., LLC v. Fiber Research Int’l, LLC, 310 F. Supp. 3d 1089, 1126 (S.D. Cal. 2018). Instead, a district court may use “its discretion to fashion relief, including monetary relief, based on the totality of the circumstances.” Id. If a plaintiff seeks to recover a defendant’s profits under 15 U.S.C. § 1117(a), showing “willfulness is not an ‘inflexible precondition to recovery,” though a “defendant’s mental state is a highly important consideration.” Harbor Breeze Corp. v. Newport Landing Sportfishing, Inc., 28 F.4th 35, 35 (9th Cir. 2022) (quoting Romag Fasteners, Inc. v. Fossil, Inc., 140 S.Ct. 1492, 1497 (2020)). //

16 Monster disputes DSUF ¶ 69 to the extent that it claims that Monster only

commissioned three surveys. Monster asserts that it commissioned six total surveys. This fact does not alter the analysis.



VPX argues that Monster fails to show it suffered damages due to Defendants’ allegedly deceptive statements. (VPX MSJ at 11–13.) According to VPX, Monster’s own evidence attributes any damages and loss of market share to numerous factors, many of which have nothing to do with BANG. (Id. at 12.)

Monster, however, submits evidence that VPX’s BANG sales took sales and market

shares from Monster. (VPX MSJ Opp’n at 13 (citing PEx. 348.) It also offers evidence providing a causal link between its losses and BANG’s alleged deception. One of Monster’s experts conducted a survey and found that 61.5% of surveyed BANG consumers “stated they would purchase Monster instead of Bang and 14.2% stated they would purchase Reign instead of Bang,” if “Super Creatine” were removed from Bang.” (Cowan Report ¶¶ 119–124.) The same survey indicated that most of the BANG consumer participants expected BANG to contain more Super Creatine or creatine than it actually did (the “threshold amount”). (Id. ¶ 125.) Some of those respondents indicated that they would purchase less BANG and replace it with a Monster drink if BANG contained only the threshold amount of Super Creatine or creatine. (Id. ¶¶ 126–128.) Though the survey asked about a hypothetical situation, a reasonable jury may infer from this the responses that some consumers in fact purchased BANG instead of Monster energy drinks because of Defendants’ purported false advertising. Accordingly, the Court concludes that a genuine dispute of material fact precludes summary judgment on damages.

d. Lack of Substantiation

Finally, VPX asserts that Monster cannot prevail on a “lack of substantiation” theory for its false advertising claims. But VPX fails to explain where Monster takes this position. Further, because the Court finds that Monster has produced sufficient evidence to overcome summary judgment on four of the five challenged statements, the Court need not address this argument. In sum, the Court GRANTS IN PART the VPX MSJ on Monster’s Lanham Act claim only to the extent that Monster challenges Defendants’ statements about the ’466 Patent. For all other allegedly false statements, the Court DENIES the VPX MSJ on Count One. For the same reasons, the Court DENIES the VPX MSJ as to Monster’s UCL and FAL claims.

2. Mr. Owoc Mr. Owoc argues that Monster’s false advertising claims against him fail because

Monster cannot show that he made false statements that materially deceived consumers and cause Monster’s damages. (Owoc MSJ at 1, 11–12.) As such, he claims that he is not personally liable for violations of the Lanham Act, UCL, or FAL. (Id. at 12.)

“It is well settled that corporate directors cannot be held vicariously liable for the corporation’s torts in which they do not participate.” Frances T. v. Vill. Green Owners. Ass’n, 42 Cal. 3d 490, 503 (1986) (emphasis in original). “[T]he individual officer or director will be immune unless he authorizes, directs, or in some meaningful sense actively participates in the wrongful conduct.” Id. Here, it is undisputed that Mr. Owoc is VPX’s CEO. (OSUF ¶ 1.) As



such, Monster must show that Mr. Owoc authorized, directed, or actively participated in VPX’s false advertising around Super Creatine and BANG. This does not mean that Monster must demonstrate a false statement by Mr. Owoc that gives rise to its false advertising claim, as Mr. Owoc incorrectly asserts. (Owoc MSJ at 12.) Monster only needs to raise a genuine issue of material fact as to whether Mr. Owoc actively participated in VPX’s false advertising.

Despite holding the initial burden of production, Mr. Owoc submits no evidence of his

own to demonstrate that he did not make false claims about Super Creatine and BANG. He instead conducts a seemingly pointless exercise of compiling Monster’s allegations of acts by “Defendants” in the FAC, which he asserts do not specifically allege any act by Mr. Owoc. (OSUF ¶¶ 10–12; Owoc MSJ Reply at 4–6.) But as Monster notes, Monster alleged specific acts taken by Mr. Owoc throughout the FAC. (Pl.’s Response to OSUF ¶¶ 10–12; see FAC.)

Monster submits evidence from which a reasonable jury could conclude that Mr. Owoc

authorized or directed VPX’s false advertising around Super Creatine and BANG. In his deposition, Mr. Owoc testified that he “personally oversee[s] VPX’s advertising and marketing.” (PEx. 407 at 44:10-11.) He further testified that he is VPX’s “chief scientific officer,” who invented Super Creatine and worked to develop the BANG formula. (PEx. 407 at 46:11-25; Owoc MSJ Opp’n at 12 (citing PEx. 407).) Eugene Bukovi, VPX’s Executive Vice President of Sales, testified in his deposition that Mr. Owoc decides what features VPX should highlight to retailers when promoting or selling BANG. (Owoc MSJ Opp’n at 12 (citing PEx. 388 at 79:10-80:5.) Monster further produces evidence of Mr. Owoc’s direct participation in creating the BANG labels and determining VPX’s marketing strategies and themes. (Id.) In addition, and as discussed above, Monster proffers social media posts from Mr. Owoc’s account that promote Super Creatine and BANG using the purportedly false claims. Under these facts, a reasonable jury could find that Mr. Owoc is liable for false advertising. Accordingly, the Court DENIES the Owoc MSJ on the Lanham Act, UCL, and FAL claims. B. Shelf Space Interference Claims: Intentional Interference with Contractual Relations

(Count Five) and Intentional Interference with Prospective Economic Advantage (Count Six)

Defendants next seek summary adjudication of Monster’s shelf space interference claims.

VPX primarily argues that Monster cannot establish a valid contract for contracted-for shelf space from which the claim arises, but contests every element. (VPX MSJ at 13–14.) It further contends that Monster fails to show that VPX intentionally interfered with prospective economic advantage. (Id. at 15–17.) Mr. Owoc also argues that Monster’s intentional interference of contractual relations and intentional interference of prospective economic advantage claims against him fail. (Owoc MSJ at 9–11.) // // // //



1. Intentional Interference with Contractual Relations

The elements of the tort of intentional interference with contract are: “(1) a valid contract between plaintiff and another party, (2) defendant's knowledge of the contract, (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship, (4) actual breach or disruption of the contractual relationship, and (5) resulting damage.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 505 (1994).

a. VPX VPX first contends that Monster fails to prove a valid contract for shelf space exists

between Monster and a third-party. (VPX MSJ at 13–14.) However, VPX fails to submit evidence that supports this assertion. Moreover, as Monster notes, the Court previously found that Monster had submitted evidence of valid contracts, including of shelf space contracts with Circle K, Walmart, AM PM, and Dunne Manning. (VPX MSJ Opp’n at 15; PI Order at 7–8; see also Dkt. No. 69-9, Exs. 36, 48–50; Pl.’s Response to DSUF ¶ 157.) Monster also submits deposition testimony of Emelie Tirre, Monster’s President of the Americas, who testified to the existence of shelf space contracts. (PEx. 410 at 165:10-19.) This evidence materially disputes VPX’s contention. VPX next argues that Monster fails to show that VPX had knowledge of these shelf space contracts. (VPX MSJ at 14.) The evidence suggests otherwise. Monster provides deposition testimony of VPX executives and employees, who attest that they generally knew Monster held contracts with some retailers for shelf space and that VPX employees placed BANG in Monster’s contracted-for space. (VPX MSJ Opp’n at 16; PEx. 351 ¶ 227; PEx. 414; PEx. 406 at 160:11-161:12; PEx. 389.) One employee testified that when he moved Monster products from a shelf for BANG, he was told by the retailer that Monster contracted for the space. (PEx. 406 at 160:11-161:12.) A reasonable jury could conclude from this evidence that VPX “ha[d] knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract.” Jenni Rivera Enter., LLC v. Latin World Entm’t Holdings, LLC, 36 Cal. App. 5th 766, 783 (2019). For the same reason, VPX’s assertion that Monster cannot demonstrate intentional acts rings hollow. (VPX MSJ at 14–15; VPX MSJ Reply at 7.) For this element, “[i]ntentionally inducing or causing a breach of an existing contract is a wrong in and of itself.” Korea Supply Co., 29 Cal. 4th at 1158. VPX submits some evidence that shows a lack of intent by VPX or its employees to interfere with Monster’s shelf space. For example, a former VPX employee testified in his deposition that he did not know of anyone at VPX who directed employees to replace Monster with BANG in Monster’s shelf space. (DEx. 34 at 161:2-12.) Ms. Tirre also testified that in some situations, BANG cans are properly placed in Monster’s coolers. (DSUF ¶ 151.) At the same time, Monster submits countervailing evidence. The evidence discussed above, which supports the knowledge element, also shows that BANG employees intended to move Monster drinks from Monster’s contracted-for space, were sometimes instructed to do so, and understood that shelf space interference was a strategy to gain a competitive advantage.



(VPX MSJ Opp’n at 17.) For example, Mr. Owoc testified in his deposition that he instructed employees to take the shelf space of all competitors, though he could not specifically recall whether he had instructed employees to take Monster’s shelf space. (PEx. 407 at 401:1-7.) As such, a genuine dispute exists on intentionality and precludes summary judgment. VPX next avers that Monster fails to show that VPX’s acts led to a breach of contract because Monster did not show that any contract was terminated as a result. (VPX MSJ at 15.) As Monster correctly notes, however, Monster need only show an “actual breach or disruption.” Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990) (emphasis added). Monster submits documentation by its employees that show BANG in Monster’s contracted-for space. (PExs. 179–180, 182, 184–192.) The employees declare that the shelf space is with retailers who hold shelf space contracts with Monster. A reasonable jury would likely conclude that the placement of non-Monster products on shelf space Monster contracts is a disruption of Monster’s contracts. Finally, VPX argues that Monster offers no evidence of damages. (VPX MSJ at 8–9.) For support, VPX cites a statement by Monster’s sales director, who could not provide specific evidence of lost sales. However, Monster’s damages expert provides estimates of Monster’s damages as a result of VPX’s shelf space interference. (Pl.’s Response to DSUF ¶ 189 (citing PEx. 358).) Other Monster executives testified in depositions that Monster “lost sales,” particularly during one retailer’s “Bang launch.” (PEx. 435 at 54:23-56:21; PEx. 436 at 82:15-21; Pl.’s Response to DSUF ¶ 190.) Whether Monster suffered damages is genuinely disputed. Accordingly, the Court concludes that VPX fails to show that no reasonable jury would conclude that it did not intentionally interfere with Monster’s contractual relations. The Court DENIES the VPX MSJ as to Count Five.

b. Mr. Owoc

To defeat Monster’s intentional interference of contract relations claim against him, Mr. Owoc repeats VPX’s argument that a valid contract does not exist. (Owoc MSJ at 9.) However, because the Court finds the issue genuinely disputed, this assertion fails. Mr. Owoc next argues that Monster fails to show that he personally committed an intentional act to interfere with Monster’s shelf space contracts. This contention is irrelevant since the proper standard is whether Mr. Owoc directed VPX’s intentional interference.

Under Monster’s evidence, a reasonable jury could conclude that Mr. Owoc directed

VPX employees to run shelf space interference, including with Monster’s contracted-for space. As noted above, Mr. Owoc testified that he instructed employees to take the shelf space of all competitors, though he could not specifically recall whether he had instructed employees to take Monster’s shelf space. (PEx. 407 at 401:1-7.) Monster further presents evidence that Mr. Owoc “ratified VPX’s employees’ efforts to steal Monster’s space when they sent him pictures documenting the interference.” (Owoc MSJ Opp’n at 15 (citing PExs. 441, 488).) Accordingly,



genuine disputes preclude summary judgment. The Court DENIES the Owoc MSJ as to the intentional interference with contractual relations claim.

2. Intentional Interference with Prospective Economic Advantage

To prevail on a claim for intentional interference with prospective economic advantage,

Monster must show: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1153 (2003). Interference is actionable if it is “wrongful by some measure beyond the fact of the interference itself.” Am. Rena Int'l Corp., 2014 WL 12585806, at *7 (C.D. Cal. Feb. 14, 2014) (citation omitted).

a. VPX VPX argues that Monster cannot demonstrate an economic relationship, intentional acts,

actual disruption, or damages. However, the same evidence that supports Monster’s intentional interference with prospective economic advantage claim supports its intentional interference with prospective economic advantage. Because the Court finds that Monster met its burden of showing genuine disputes as to the existence of Monster’s contracts for shelf space with third party retailers, the Court finds that summary judgment is not appropriate on the economic relationship element.

The intentional act element for an intentional interference with prospective economic

advantage claim differs from that of an intentional interference with contract claim. For the former, “a plaintiff must plead that the defendant engaged in an independently wrongful act.” Korea Supply Co., 29 Cal. 4th at 1158. The act must be “unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. at 1159. “An act is not independently wrongful merely because defendant acted with an improper motive.” Id. at 1158. Here, though Monster has produced evidence that VPX disrupted Monster’s shelf space contracts, it must also show an independently wrongful act.

VPX asserts that its actions only amount to competition, which is not an independently

wrongful act. (VPX MSJ at 16.) Under California law, “‘competition privilege’ [ ] protects one from liability for inducing a third person not to enter into a prospective contractual relation with a business competitor.” Gemini Aluminum Corp. v. Cal. Custom Shapes, Inc., 95 Cal. App. 4th 1249, 1256 (2002). But the privilege does not protect “improper means.” Id. Accordingly, whether VPX acted under the competition privilege still turns on whether it acted unlawfully. // // //



Monster argues that VPX acted unlawfully because it falsely advertised BANG to retailers in order to take Monster’s space. (VPX MSJ Opp’n at 19.) While Monster is correct that actions committed by “means of fraud, misrepresentation, or duress” may provide the independent wrong. Rickel v. Schwinn Bicycle Co., 144 Cal. App. 3d 648, 659 (1983), its evidence fails to link VPX’s false advertising with shelf space interference. As discussed above, Monster submits sufficient evidence showing that VPX made false claims about BANG and Super Creatine or competitor products to retailers. Monster submits emails that show VPX’s sales pitches were successful. (VPX MSJ Opp’n at 19 (citing PExs. 309, 315, 437–439.) A reasonable jury may infer from this evidence that retailers stocked BANG as a result of VPX’s allegedly false statements. Critically, however, Monster proffers no evidence that shows VPX made these claims to interfere specifically with Monster’s shelf space contracts. None of the communications Monster cites discuss Monster or Monster’s shelf space.

Therefore, the Court concludes that Monster fails to create a genuine dispute of material

fact as to whether VPX engaged in an independently wrongful act to disrupt Monster’s shelf space contracts. The Court GRANTS the VPX MSJ as to Count Six.

b. Mr. Owoc

Because Monster cannot demonstrate that VPX intentionally interfered with prospective economic advantage, it also cannot show that Mr. Owoc directed such activities. Accordingly, the Court GRANTS the Owoc MSJ on this claim.

D. Trade Secret Claims: Violations of the CUTSA (Count Ten) and DTSA (Count Eleven)

Defendants move for summary adjudication on Monster’s trade secret claims under the

California Uniform Trade Secrets Act (“CUTSA”) and Defend Trade Secrets Act (“DTSA”). Under either law, VPX argues that: (1) Monster fails to identify trade secrets with reasonable particularity, (2) the alleged trade secrets are not protectable, (3) Monster fails to show misappropriation, and (4) Monster fails to prove damages. (VPX MSJ at 17–22.) Mr. Owoc argues that Monster fails to show that he personally misappropriated any trade secrets. (Owoc MSJ at 12–13.)

“California has adopted the Uniform Trade Secrets Act (“[C]UTSA”) which codifies

the basic principles of common law trade secret protection.” MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993) (citing Cal. Civ. Code §§ 3426-3426.10 (“CUTSA”)). To establish a CUTSA violation, a plaintiff must show (1) the existence of a trade secret, and (2) misappropriation of the trade secret.” Acculmage Diagnostics Corp. v. Terarecon, Inc., 260 F. Supp. 2d 941, 950 (N.D. Cal. 2003). A plaintiff must also show that “the defendant’s actions damaged the plaintiff.” Cisco Sys., Inc. v. Chung, 462 F. Supp. 3d 1024, 1046 (N.D. Cal. 2020).

Congress also enacted the DTSA to “provide Federal jurisdiction for the theft of trade

secrets.” See DTSA of 2016, Pub. L. No. 114-153, 130 Stat. 376 (codified in several sections of title 18 to the United States Code). Similar to the CUTSA, the DTSA permits the “owner of a



trade secret that is misappropriated” to bring a civil action, 18 U.S.C. § 1836(b), and includes substantially similar definitions of “trade secret” and “misappropriation.” See 18 U.S.C. § 1839(3), (5).

Because the CUTSA and DTSA are analogous, courts often consider them together,

including at summary judgment. InteliClear, LLC v. ETC Global Holdings, Inc., 978 F.3d 653, 657 (9th Cir. 2020) (noting that “[c]ourts have analyzed these claims together because the elements are substantially similar” and “conclud[ing] that it is appropriate to do so here”). Accordingly, the Court also analyzes Monster’s CUTSA and DTSA claims at the same time.

1. VPX

a. Trade Secrets

VPX first argues that Monster fails to identify the claimed trade secrets with reasonable particularity or to show that the trade secrets are protectable. (VPX MSJ at 17–19.)

Under the CUTSA, a “trade secret” is “information, including a formula, pattern,

compilation … or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public…and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code § 3426.1(d). In other words, the information “is valuable because it is unknown to others” and “the owner has attempted to keep [it] secret.” DVD Copy Control Assn. v. Bunner, 116 Cal. App. 4th 241, 251 (2004).

The DTSA defines “trade secret” as “all forms and types of financial, business,

scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if-- (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” 18 U.S.C. § 1839(3). This definition “is broad.” InteliClear, LLC, 979 F.3d at 657.

“A plaintiff seeking relief for misappropriation of trade secrets ‘must identify the trade secrets and carry the burden of showing that they exist.’” Imax Corp. v. Cinema Tech., Inc., 152 F.3d 1161, 1164 (9th Cir. 1998) (quoting MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 522 (9th Cir. 1992)). “The plaintiff should describe the subject matter of the trade secret with sufficient particularity to separate it from matters of general knowledge in a trade or of special knowledge of those persons skilled in trade.” Id. at 1164–65 (internal citations and alterations omitted). The description should “permit the defendant to ascertain at least the boundaries within which the secret lies.’” Bunnell v. Motion Picture Ass’n of Am., 567 F. Supp. 2d 1148, 1155 (C.D. Cal. 2007) (quoting Diodes, Inc. v. Franzen, 260 Cal. App. 2d 244, 253 (1968)).



Here, Monster identifies “47 pricing and retail strategy trade secrets for North America

and 28 market entry and market penetration trade secrets for South America” in its trade secrets disclosure. (VPX MSJ Opp’n at 20; Tirre Decl., Ex. C.) VPX characterizes this list as “a 19-page, 75-paragraph scattershot ‘identification.’” (VPX MSJ Reply at 9.) The Court disagrees.

Monster’s list of trade secrets includes: pricing architecture; pricing plans; value chain

information; trade information from software; various analyzes, reports, sales updates, and strategy documents; estimates, calculations, profitability documents, and budgets; details of product launches; promotions calendar; customer lists; and lists of agreements. Unlike the identified trade secrets in VPX’s cited authority, the list does not “read[] like an inventory of categories of Plaintiff’s scientific or strategic business information.” Loop Al Labs Inc. v. Gatti, 195 F. Supp. 3d 1107, 1112 (N.D. Cal. 2016). Nor do the identified secrets use vague terminology. See, e.g., Freeman Inv. Mgmt. Co. v. Frank Russell Co., 2016 WL 5719819, at * 11 (S.D. Cal. Sept. 30, 2016) (finding trade secret described as “emphasizing volatility” not particular).

Instead, as Monster asserts, each trade secret includes a description that seems tailored to

specific documents. (VPX MSJ Opp’n at 20–21.) Many descriptions seem to name existing documents, include time periods, and identify a narrow topic as opposed to a catch-all category. See SMS Signature Cars v. Connect Mktg. LLC, 2013 WL 12138992, at *3 (C.D. Cal. May 15, 2013) (finding “pricing process” for plaintiff’s product identified with sufficient particularity when described as “‘the amount that could be spent on the design and building process … as shown by SMS’s research’ and the ‘specific changes (and their accompanying price levels) that should be made to the vehicle and engine to achieve maximum performance and marketability while staying within SMS’s required price structure”). The Court finds that Monster has “sufficiently ‘described the subject matter of the trade secret with sufficient particularity.’”17 Brocade Commc’n Sys., Inc. v. A10 Networks, Inc., 873 F. Supp. 2d 1192, 1215 (N.D. Cal. 2012) (quoting Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443, 1453 (2002)).

The Court next considers whether the claimed trade secrets warrant protection under the

CUTSA or DTSA. VPX does not contest that the identified information, categorically, falls within the definition of “trade secret.”18 Rather, VPX argues that Monster fails to show that it

17 Citing InteliClear, LLC, 978 F.3d at 658–59, VPX argues that Monster must identify

“specific tables, codes, or methodologies.” (VPX MSJ Reply at 9.) VPX takes InteliClear, LLC out of context. There, the plaintiff alleged trade secrets related to “a comprehensive electronic system for managing stock brokerage firm accounting, securities clearance, and securities settlement services.” InteliClear, LLC, 978 F.3d at 655. In order to protect information about its technology and the products of that software, the plaintiff specifically sought to claim “tables, … codes, and methodologies” as trade secrets. Id. at 658–59. VPX fails explain how or why Monster must cite tables, codes, and methodologies here when such facts are not at issue.

18 Courts routinely find that “[t]his type of information is routinely given trade secret protection.” Brocade Commc’ns Sys., Inc., 873 F. Supp. 2d at 1214 (discussing “confidential customer-related information including customer lists and contact information, pricing



took reasonable efforts to keep the information secret, as some of the information necessarily may be shared or is based on public information. (VPX MSJ at 19; DSUF ¶¶ 193–197.)

In response, Monster submits evidence that it enforced confidentiality policies with its

employees. (VPX MSJ Opp’n at 21–22 (citing PEx. 275, 435, 393, 417, 399).) Courts have found that such actions constitute reasonable measures to keep information secret. See Maharis v. Omaha Vaccine Co., 967 F.2d 588 (9th Cir. 1992) (requiring signing of non-disclosure agreements and oral agreements to keep information secret sufficient); Whyte, 101 Cal. App. 4th at 1454 (recognizing that “advising employees of the existence of a trade secret” as a reasonable effort to maintain secrecy). Monster also offers evidence to show that it made efforts to keep even information that could be shared or found in public a trade secret confidential. (Pl.’s Response to DSUF ¶¶ 193–197.) Courts have recognized that a trade secret does not lose its secret character merely because information related to the claimed secret is “public knowledge.” Brocade Commc’ns Sys., Inc., 873 F. Supp. 2d at 1215. (finding that plaintiff had greater justification for seeking to protect “additional information linking each customer to other confidential information” when “the customer names [were] public knowledge”).

Moreover, even public information qualifies as a trade secret “if a plaintiff has spent

‘considerable time, effort, and resources’ in developing some of that information.” Albert’s Organics, Inc. v. Horizon, 445 F. Supp. 3d 463, 472 (N.D. Cal. 2020) (internal citations omitted); see also Pyro Spectaculars N., Inc. v. Souza, 861 F. Supp. 2d 1079, 1089 (E.D. Cal. 2012) (finding that even if “many of the individual pieces of information in the Booking Forms program can be ultimately ascertained by requesting and scouring public records, calling customers and operators, and reverse engineering videos and CS,” this “misses the point” because the purpose of the “Booking Forms program” was to “provide a virtual encyclopedia” of information “at a competitor’s fingertips” so that a competitor did not have “to expend the effort to compile the data”); c.f. In re Sotera Wireless, Inc., 794 F. App’x 625, 627 (9th Cir. 2020) (noting that lower court did not find “a meaningful distinction” between the alleged trade secret of “customized alarm analytics” and “analyzing aggregate hospital data as a sales technique”). A reasonable jury may infer from the evidence that Monster spent time and resources compiling data for retailers such that the resulting product was a trade secret. Accordingly, the Court concludes that Monster raises a genuine issue of material fact on whether Monster has identified “trade” secrets under the CUTSA and DTSA. // // // //

guidelines, historical purchasing information, and customers’ business needs/preferences”); see also Albert’s Organics, Inc. v. Holzman, 445 F. Supp. 3d 463, 472 (N.D. Cal. 2020) (“Courts have frequently held that customer-related information qualifies as a trade secret….”); Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911, 972 (C.D. Cal. 2011) (“Information about customers’ preferences can aid in ‘securing and retaining their business.’”).



b. Misappropriation

VPX next argues that Monster fails to show that VPX misappropriated any claimed trade secrets. It asserts that: (1) the evidence does not demonstrate that Monster possessed any trade secret documents, (2) it is commonplace for companies in the beverage industry to secure competitor information from retailers, (3) VPX did not seek to specifically hire Monster employees to target Monster’s trade secrets, and (4) VPX did not obtain information through improper means. (VPX MSJ at 19–21.)

Under the CUTSA and DTSA, misappropriation occurs when a defendant “acquired,

disclosed, or used the plaintiff’s trade secret through improper means.” Sargent Fletcher, Inc. v. Able Corp., 110 Cal. App. 4th 1658, 1665 (2003); see 18 U.S.C. § 1839(5)(A)-(B)(i) (defining “misappropriation” as “acquisition of a trade secret by a person who knows or has reason to know that the trade secret was acquired by improper means; or disclosure or use of a trade secret of another without express or implied consent by a person who—used improper means to acquire knowledge of the trade secret”). “‘Improper means’ is defined as ‘theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.’” Brocade Commc’ns Sys., Inc., 873 F. Supp. 2d at 1212 (quoting Cal. Civ. Code § 3426.1(a)); 18 U.S.C. § 1839(6) (defining “improper means” to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means”). The plaintiff bears the burden of proving misappropriation “by circumstantial as well as direct evidence.” Id.

VPX first disclaims it acquired or possessed any of Monster’s trade secrets. It submits

deposition testimony of VPX employees, who testify that they were not aware that misappropriation had occurred. (VPX MSJ at 19; DSUF ¶¶ 204–205.) However, Monster submits countervailing testimony that more than one VPX employee possessed Monster’s information and that, on at least one occasion, such information had been widely circulated. (Pl.’s Response to DSUF ¶¶ 204–205, 227–230.) Monster produces additional evidence that Stephen Cohen, a former field sales representative for Monster who found a job with VPX, gave Frank Massabki, VPX’s in-house counsel USB devices containing Monster information, and Mr. Massabki accessed the devices and viewed the information. (DSUF ¶ 206; PExs. 424, 355.) Mr. Cohen provided this information around the time his employment with Monster had ended. While “mere possession of information is not enough to establish improper acquisition of a trade secret,” Hooked Media Grp., Inc. v. Apple Inc., 55 Cal. App. 5th 323, 333 (2020), it is still relevant. Monster’s evidence creates a genuine dispute as to whether VPX or its employees had acquired, disclosed or used Monster’s trade secrets. VPX next argues that even if did possess any Monster trade secrets, they were not acquired or disclosed through improper means. In support of this position, VPX submits testimony from Monster employees who expressed that it was not improper to obtain competitor information from retailers. (VPX MSJ at 20.) However, it is unclear how a belief held by individual employees demonstrates that trade secrets were not disclosed or acquired by improper means. Nor does this view explain the above evidence with respect to information that was not



obtained through a retailer. VPX also produces evidence purporting to show that VPX did not recruit Monster employees. It is undisputed that certain Monster employees reached out to VPX for a job. (DSUF ¶¶ 217, 219–220.) The parties, however, provide competing evidence as to whether any VPX employee asked a current Monster employee to bring Monster trade secrets in exchange for a job. The parties also dispute whether VPX paid former Monster employees a higher salary or compensation increases. (DSUF ¶ 231; Pl.’s Response to DSUF ¶ 231.) Monster further provides evidence that its former employees who started new jobs with VPX downloaded Monster information after their employment with Monster had ended. (Pl.’s Response to DSUF ¶¶ 227–230.) Under these facts, the Court finds that there is a genuine dispute as to whether any acquisition or disclosure took place by improper means. A reasonable jury, drawing all inferences in Monster’s favor, may conclude that VPX misappropriated Monster’s trade secrets.

c. Damages

VPX contends that even if Monster survives summary judgment on demonstrating trade secrets and misappropriation, Monster cannot show damages because it lacks evidence connecting any alleged injury with the misappropriation. (VPX MSJ at 21–22.) As VPX acknowledges, however, Monster submits an analysis by its damages expert, calculating VPX’s enrichment through the materials obtained from misappropriated USB devices. (VPX MSJ Opp’n at 23.) While VPX contends that this estimate is purely speculative, the analysis incorporated actual performance data from VPX territories that Mr. Cohen oversaw, before and after he joined VPX. (Id. at 23–24.) This estimate, while an approximation, raises a genuine dispute on whether Monster suffered damages.

Accordingly, because VPX fails to meet its summary judgment burden on Monster’s

trade secret claims, the Court DENIES the VPX MSJ as to the CUTSA and DTSA claims.

2. Mr. Owoc

Mr. Owoc contends that Monster fails to submit admissible evidence that connects any alleged misappropriation to him. (Owoc MSJ at 13.) The Court agrees. Monster provides evidence of one instance during which Mr. Owoc circulated information that may have been misappropriated from Monster and another instance when he may have received a different competitors’ information. (PExs. 305, 407.) However, this evidence is insufficient for a jury to infer that Mr. Owoc understood that the information had been obtained by improper means. Nor does Monster produce evidence that Mr. Owoc generally, or in specific instances, authorized or directed VPX’s misappropriation of Monster’s trade secrets. Monster shows that Mr. Owoc encouraged hiring former employees of certain competitors, including Monster, and some of these employees allegedly misappropriated Monster’s trade secrets. Yet, this evidence is inadequate to show that Mr. Owoc knew that VPX employees were misappropriating Monster’s trade secrets, let alone directing it. Accordingly, the Court finds that Monster has failed to raise a genuine dispute. The Court GRANTS the Owoc MSJ as to the CUTSA and DTSA claims.



E. Count Twelve: Computer Fraud and Abuse Act

Defendants move for summary judgment on Monster’s claim under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq. VPX argues that Monster cannot show that Defendants accessed a protected computer without authorization or that they caused Monster damages. (VPX MSJ at 22–23.) Once again, Mr. Owoc argues that Monster must demonstrate that he personally accessed a protected computer without authorization, which Monster fails to do. (Owoc MSJ at 13–14.)

“The CFAA prohibits acts of computer trespass by those who are not authorized users or

who exceed authorized use.” Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1065 (9th Cir. 2016). “It creates criminal and civil liability for whoever ‘intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer.” WhatsApp Inc. v. NSO Grp. Tech. Ltd., 472 F. Supp. 3d 649, 680 (N.D. Cal. 2020). “To prevail on a claim under 18 U.S.C. § 1030(a)(4) of the CFAA, [a plaintiff] must establish that Defendant: (1) knowingly and with intent to defraud; (2) accessed a protected computer without authorization; (3) obtained anything of value; and (4) caused a loss and damages aggregating at least $5,000.” T-Mobile USA, Inc. v. Terry, 862 F. Supp. 2d 1121, 1130 (W.D. Wash. 2012) (citing 18 U.S.C. §§ 1030(a)(4), 1030(c)(4)(A)(i)(l), 1030(g)).

1. VPX

a. Access Protected Computer Without Authorization

VPX asserts that Monster fails to demonstrate that Defendants accessed a protected computer without authorization. (VPX MSJ at 22.)

However, Monster submits an internal email communication showing that Mr. Cohen’s

Monster-issued smart phone was accessed after his resignation. (PEx. 297; VPX MSJ Opp’n at 24.) A company-issued phone is covered under the CFAA. See, e.g., Alchem Inc. v. Cage, 2021 WL 4902331, at *1, 5–6 (E.D. Pa. Oct. 21, 2021) (analyzing whether an employee accessed “a company-issued cellphone” after he resignation); Beecher Carlson Holdings, Inc. v. Stern Risk Partners LLC, 2015 WL 13306360, at *3–4 (N.D. Ga. May 1, 2015) (evaluating whether employees “wiped information from a company cell phone prior to their resignations”). Though VPX claims that Monster does not prove the phone is company-issued (VPX MSJ Reply at 11), the email describes the phone’s “Organization Group” as “Monster Energy Company/MEC North America” and states “Ownership: Corporate – Dedicated.” The email contains detailed information about the phone’s features, usage, and location, as well as “User Info” such as Mr. Cohen’s name, username, and company email address. A reasonable jury could infer that the phone was issued by Monster and that it was accessed without authorization. See Weingand v. Harland Fin. Solutions, Inc., 2012 WL 2327660, at *3 (N.D. Cal. June 19, 2012) (“[I]f a former employee accesses information without permission, even if his prior log-in information is still operative as a technical matter, such access would violate the CFAA.”).



As discussed above, Monster also produces evidence that Mr. Massabki accessed USB devices containing Monster confidential information that Mr. Cohen had provided. (VPX MSJ Opp’n at 24 (citing PEx. 42419).) VPX admits that Mr. Cohen provided the USB devices and that it inserted the devices into a computer or other electronic device and viewed the files on them. (PEx. 355 ¶¶ 570, 572, 574.) VPX contends that USB devices are not protected computers. (VPX MSJ Reply at 12 n.18.) While Monster does not cite authority to show that USB devices fall within the CFAA’s scope, the Court, on its own research, finds that a thumb drive or USB device can be a protected “computer” under the CFAA. See, e.g., BHL Boresight, Inc. v. GEO-Steering Solutions, Inc., 2016 WL 8648927, at *14 (S.D. Tex. Mar. 29, 2016) (noting that “courts regularly conclude that systems and devices that function with individual data processing devices are covered by the [CFAA]” and that USB-like devices were a “protected computer”). Moreover, Mr. Massabki was neither a former nor current Monster employee when he accessed the USB devices. He likely had “not received permission to use the [USB devices] for any purpose.” LRVC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009). Accordingly, a reasonable jury could find that VPX, through Mr. Massabki, accessed a protected computer without authorization.

b. Damages

VPX argues that Monster cannot seek to recover costs incurred to investigate the CFAA violation. (VPX MSJ at 23.) However, as Monster correctly notes, Monster may recover investigatory costs. (VPX MSJ Opp’n at 24.) A “loss” under the CFAA includes “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue, lost, cost incurred, or other consequential damages incurred because of interruption of service.” Facebook, Inc., 844 F.3d at 1066. This broad definition encompasses the costs of “analyzing, investigating, and responding to” the actions of an employee who commits computer trespass are recoverable. Id. Here, Monster submits evidence that it incurred costs to investigate Mr. Cohen’s actions and that these costs exceed $5,000.00. (VPX MSJ Opp’n at 25 n.24 (citing PEx. 358).) Accordingly, the Court finds that genuine disputes preclude summary judgment on this element.

Because VPX has not met its burden on either the second or fourth element, the Court

DENIES the VPX MSJ as to Monster’s CFAA claim.

2. Mr. Owoc

Mr. Owoc contends that there is insufficient evidence to show that he violated the CFAA. Monster’s sole theory of liability against Mr. Owoc is that there is “a triable issue of fact as to whether he was the impetus behind VPX’s decision to hire Monster’s employees to steal Monster’s confidential and proprietary information.” (Owoc MSJ Opp’n at 22.) As discussed above, however, the Court finds that no reasonable jury could conclude from the record that Mr.

19 The Court notes that this document does not include some of the pages Monster cites.



Owoc directed VPX to hire former Monster employees in order to misappropriate trade secrets. Even less evidence exists for a jury to find that Mr. Owoc directed such individuals to access protected computers without authorization. Accordingly, the Court GRANTS the Owoc MSJ as to Count Eight.

F. Punitive Damages

Finally, VPX and Mr. Owoc move for summary judgment on Monster’s claim for punitive damages. To recover punitive damages in California, a plaintiff must prove “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a).

1. VPX

According to VPX, Monster has failed to demonstrate that VPX acted with malice,

oppression, or fraud. (VPX MSJ at 23–25.) The Court disagrees. As the above discussion shows, a reasonable jury may conclude from the evidence that VPX acted fraudulently. Accordingly, the Court DENIES the VPX MSJ on the claim for punitive damages.

2. Mr. Owoc

To impose punitive damages on a corporate employer, “an officer, director, or managing agent of the corporation” must have “authorized or ratified the wrongful conduct” or “was personally guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(b). The elements must be “proven by clear and convincing evidence.” Id. § 3294(a). As with VPX, sufficient evidence exists for a jury to find that Mr. Owoc directed VPX’s false advertising and thus authorized the wrongful conduct. Accordingly, the Court DENIES the Owoc MSJ as to punitive damages against Mr. Owoc. In sum, the Court GRANTS IN PART the VPX MSJ as to Monster’s Lanham Act claim against VPX, but only to the extent that Monster challenges Defendants’ statements about the ’466 Patent as false. The Court also GRANTS the VPX MSJ as to intentional interference of prospective economic advantage against VPX. The Court DENIES the VPX MSJ as to all other claims. The Court GRANTS the Owoc MSJ on the intentional interference of prospective economic advantage, CUTSA, DTSA, and CFAA claims as to Mr. Owoc. The Court DENIES the Owoc MSJ as to the Lanham Act, UCL, and FAL claims, as well as intentional interference of contractual relations and punitive damages. // // // // // //



VII. CONCLUSION

For the foregoing reasons, the Court DENIES the PMSJ, GRANTS IN PART AND DENIES IN PART the VPX MSJ, and GRANTS IN PART AND DENIES IN PART the VPX MSJ. IT IS SO ORDERED.
