Hunterheartvbrlicomplaint8 2014 140930092654 Phpapp01

8/9/2019 Hunterheartvbrlicomplaint8 2014 140930092654 Phpapp01

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KILPATRICK TOWNSEND STOCKTON LLP

JON MICHAELSON (SBN 83815)

BYRON CHIN (SBN 259846)

1080 Marsh Road

Menlo

Park,

CA 94025

Telephone:

650 326 24

Facsimile: 650 326 2422

Email: jmichaelson@kilpatri cktownsend.com

[email protected]

Attorneys for Plaintiff

HUNTERI-1EART

INC.

SUPERIOR COURT OF

THE STATE

OF CALIFORNIA

FOR THE

COUNTY OF SANTA

CLARA

HUNTERHEART lNC., a Califomia corporation, Case No. 4 18 9 215 5

Plaintiff,

vs.

BIO-REFERENCE LABORATORIES, INC.,

a

New Jersey Corporation, and DOES 1 through

10

inclusive,

Defendants.

COMPLAINT FOH.:

(1) INTENTIONAL INTERFERENCE

WITH CONTRACTUAL

RELATIONS;

(2)

INTENTIONAL INTERFERENCE

WITH PROSPECTIVE

ECONOMIC

ADVANTAGE;

(3)

RREACH

OF CONTRACT;

(4) BREACH OF

THE

IMPLIED

COVENANT OF GOOD F AITH AND

FAIR

DEALING;

5)

VIOLATION OF

UNFAIR RlJSINESS

PRACTICES

ACT [CALIFORNIA

BUSINESS PROFESSIONS

CODE

17200, T SEQ.J;

(6) VIOLATION OF FALSE

ADVERTISING

LAWS

[CALIFORNIA

BUSINESS PROFESSIONS CODE

17500, T S Q];

(7) VIOLATION OF

CALIFORNIA

BUSINESS PROFESSIONS CODE

16600;

(8)

FRAUD;

(9) TRADEMARK I.NFRINGEMENT rts

u.s.c. ] 114];

(10) FALSE

MI.SLEADING

DESIGNATION OF ORIGIN

[15

U.S.C.

112S(a)(l)(A));

(11) FALSE ADVERTISING

UNDER THE

LANHAM

ACT

115

U.S.C.

1125(a)(l)(B)l;

(12) CONVERSION; AND

(13) UNJUST ENRICHMENT


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Plaintiff

HunterHeart

Inc. ("HunterHeart") files this

Complaint

against Bio-Reference

Laboratories, Inc. ( BRLI ) and

demands

a trial by jury.

HunterHeart pleads

as follows:

JURISDICTION ND

VENUE

1.

This

Comt

has

jurisdiction over these claims

because

a substantial

patt

of

the events or

5

1

omissions giving rise to this

case

occurred in California and/

or

their effects

were

felt in California by

6 HunterHeart, a resident of

Santa Clara

County.

7

8

9

1

11

12

13

14

15

16

17

2.

Venue

is

proper

in the Superior Court

of

the State

of

California

in

and

for

the County

of Santa Clara

because

a substantial

part

of the events or

omissions

giving rise to this case occurred

within the County

of Santa

Clara and/or their errects were

caused by BRU,

a corporation which

conducts a substantial

amount

of business in this County.

THE

P RTIES

3.

Plaintiff Hunterlleart

is, and at all

relevant

times was, a California corporation doing

husiness in

the

State

of

California ,

with

its principal place

of

business

currently located in Los Gatos,

Culifomia.

4.

Defendant BRLI

is, and at all relevant times was, a

New

Jersey cmvoration, doing

business

in the

State of California a

nd more

specifically within

Santa Clara

Cotmty, California.

5

Huntcriieart

is ignorant

of

lhe true

names

and capacities

of

the

defendants sued herein

18 as DOES

l-1 0, inclusive, and therefore sues these defendants

by

fictitious

names

pursuant to

19 California

Code

of Civil

Procedure

section 474.

Hunter

Heart will

amend

this Complaint to allege the

20 true identities of DOES through 10

once

they have been ascertained.

HunterHemt

is infom1ed and

21 believes that each of

the

defendant >

sued

as

DOES

1 tluough 10 is in

some manner

responsible for

22

the occurrences, injuries

and other damages

alleged in this Complaint. HunterHeart is informed and

23

believes that at

all

relevant times

each

DOE

defendant acted

as an agent

or

employee

of

or as a co-

24

conspirator with the

named defendant

in connection

with

the acts/or omissions alleged herein.

25 ST TEMENT OF F CTS

26

6

Prior to

August

7, 2013, ITunterHcart, which

was then known

as Hunter Laboratories,

27

nc., operated an

independent

clinical laboratory based

in

Campbell , Califomia.

On

August

7,

2013,

28

Hunter

Laboratories , Inc.

and

BRLI entered into a written

Asset Purchase Agreement

pursuant to


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which, among other things, certain operating assets and certain of the operating liabilities of Hunter

Laboratories, Inc., were transfened to

BRLT in

exchange for a specified purchase price (the

Agreement ). In the course

of

negotiating the Agreement, and prior to execution

of

that contract,

BRLI

representatives stated numerous times to Hunter Laboratories that

BRLI

had no interest in

acquiring that portion

of the

Hunter Laboratories business which involved testing and related services

for cardiovascular conditions and events and which had been operating successfully for more than six

(6) years, and that BRLI was not planning to expand the very limited offering it then had in that area.

Accordingly, the Agreement expressly excluded assets identified and defined therein as the

HuntcrHeart Enterprise. The HunterHeart Enterprise involved and eontinues to involve a set of

medical tests, testing protocols, and guidelines to aid physicians in the diagnosis

of

and

recommendation

of

treatment programs for cardiac and cardiovascular conditions and events. The

assets which Hunterl-leart thus retained pursuant lo the Agreement included intellectual property,

l

customer accounts,

equipment

, rights to

cuny

out certain laboratory tests, license agreements, and all

other things necessary to conduct the Ilunterl-Teart business. Pursuant to the Agreement, HunterHeart

and not BRLI would continue to own the HunterHeart Enterprise after August 7, 2013. See

Agreement, Exhibit 9.2).

HRLI

is in possession

of

an original counterpart

of

the Agreement, which

contains conlidcntiality provisions which could make inclusion in a public document such as this

Complaint inappropriate.

BRLI

is fully aware

of

all tenns and conditions included in the Agreement.

To the extent relevant, certain material tenns

of

the Agreement have

been

recited or accurately

mmmarized herein.

7. Under the Agreement, BRLI agreed, among other things, to provide HunterJ-Teart

testing, related services,

and

repmis on

Huntcrlka t

' s

behalf

during a servicing period

of

up to six (6)

months

after

August 7, 2013 (hereinafter the Servicing Period ). BRLI also agreed to

pay

Hunterlleart 40% of cash collections for such tests. See Agreement, Section 10.20(b), 'l csts, page

42). BRLI failed to meet these obligations. For example, BR LI failed to properly bill all tests, failed

t1

collect on what amounts i t did bill , failed to pay what it owed HunterHeru1 with respect to cash

collected from IlunterHeart clients, and refused to pay HunterHem1 any a111 unt from revenue

derived from HunterHeart customer located in Northern California.


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In addition, from and after approximately early November

2013,

BRLI failed and

refused to provide to HunterHeart information regarding the performance of and billing for

IlunterHeart testing,

as

well as information regarding amounts received

by

BRLl for the performance

of

such tests. As a result, HunterHeart has

been

unable to audit BRLT cash collections for its

perfom1ance

of

Hunteriieart tests during the Servicing Period. Notwithstanding these failures and

refusals by BRLI, which continue lo the date

or

filing of this Complaint, Hunter Heart

is

informed cmd

believes, and on that basis alleges, that BRLT has failed to pay UunterJ-Teart approximately $234,000

ts its (Hunterl-leart's) agreed share of cash collections received by BRLI thro ugh February 2014 for

testing performed outside Northern California and approximately $880,000

in

addition as

Hunted

Ieart' s agreed

t;hare of

cash

collections received by

B RLI

through February 2014 for testing

pt:rformed within Notthern California.

9 From and after approximately March 2014, BRLI refused to consent to the release to

I:IuntcrHeart

of

up

to

$4

million which had

been

set aside from the purchase price established by the

Agreement. BRLI refused to consent to the release n f these tunds held in escrow despite the fact that

r-IunterUeart

had

:satisfied all conditions

set

forth

in

the Agreement for such release.

10 BRLT agreed

as

an express and material term of the Agreement that it would take such

actions as reasonahly required to carry out the intent and purposes of the Agreement, including any

actions necessary to legally operate the parties' respective husinesses involved after the August 7,

2013 closing date.

See

Agreement, Section

10.15,

Further Assurances, page

40).

In reliance on

BRLI's agreement to this and other provisions, HunterHcart signed the Agreement. BRLJ, however,

has breached the Agreement as set f01ih in greater detail below by, among other things, interfering

with rather than supporting the

HuntcrHeatt

Enterprise.

A

Unlawful ctions Taken y BRLI Related to Northern California

11. Starting the very day after the close

of

the transaction contemplated hy the Agreement

(AugustS,

2013)

and continuing to lhe present, BRLI has unde1taken a purposeful campaign to

sabotage

HunterHeart's

client relationships and to steal the HunterHcart Enterprise business.

12 On the first day BRU began running tests on bchalfofHunterHeart, BRLI removed

the Hunterl-:Ieart name and mark from test result

repmt

forms and inserted its own name


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( Bio-Reference Laboratories ) in their place. Following multiple requests, afler several weeks

BRLI finally reinstated the HunterHcart name and mark on some but not all HunterJieart test report

forms it delivered thereafter. In doing so, however, BRLI implemented coding

which

corrupted

patient test result repmting. For example, patient test reports often did nol include all test results,

which omissions often including TOL cholesterol (which is a key component on which

cardiovascular

treatment is often based). Additionally, some patient reports failed to include results

for entire categories

of

testing (such as Metabolic Syndrome, Advanced Risk Markers, and

Int1ammation), other reports were formatted improperLy (making it difficult for physician clients to

read and use them), and yet others did not include Patient Risk Category classification and related

Treatment Goals (important and unique features of the HunterHeart product

ru d

services). Material

; omissions such as these adversely affected client relationships and caused irreparable damage o the

HunterHeart name, marks, reputation, and business.

Even more shocking, no one at BRLI regularly

reviewed coding changes before reporting results and, as a result, corrupted reports were sent to

physicians for the entire six (6) month servicing period following August 7, 2013.

On

repeated

occasions, HunterHemi requested that coding and other errors and omissions be corrected. BRLI

initially refused (despite knowing that it was continuing to deliver erroneous and/or incomplete

reports).

t was

not until five (5) months after

execution of

the Agreement that BRLT finally

addressed some of these issues and attempted (unsucccssf'ully) to fix them.

13. During the six (6) month period when BRLI was servicing the HunterHcart accounts,

BRLI s further misdeeds also included, but were not limited to, failures and refusals to competently

service HunterHeart accounts,

multiple

billing issues and mistakes, and gross lack of responsiveness

to

client concems.

Each

such material error

or

omission persisted despite repeated requests from

f-IunterHeart for corrective action. For example, prior to August 7, 2013, knowledgeable personnel

reviewed all patient test result reports in order to identify reporting issues and to monitor turnaround

time. Accuracy and speed of reporting were and arc critically irnportunt considerations for physician

clients. BRLI, however, discontinued this essential practice and failed to implement anything

comparable in its place.

BRLI failures to competently service

Hunter

Heart accounts resulted in loss

of

such accounts in Northern California, including its largest wellness program client, and the loss of


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other accounts elsewhere. Damage to reputation and loss

of

revenue followed, and these acts and

2 omissions by

BRLI

also forced Hunted

Teart

to

i m ~ u r

substantial expenses in connection with its

3 subsequent efforts to minimize these and other damages.

4

14

As

the six (6) month Servicing Period was ending,

BRLl

engaged in further unlawful

5 efforts to misappropriate and/or destroy the HunterHeart Enterprise in Northern California (and

6 elsewhere) by making false and misleading statements. Specitically, in early February

2014, BRU

7 sent a mass communication to what appears to be HunterHeart's entire customer base. In at least one

8 of these messages, BRLI stated falsely that it would be offering

a

better way

to

assess heart health

9 through our Advanced Cardiovascular Testing (ACT) services. To add further insult to injury, after

10 BRLI sent the message containing this false comparison, its persotmel commenced a campaign

11 whereby sales representatives visited HunterHeart accounts, on some occasions multiple times during

12 .

ensuing weeks depending upon the size of the account, to further expound in person on the

13

misleading contents

of

the message. A true and cmTcct copy

of

the subject

BRLT

message

is

attached

14 hereto as Exhih.it A, and incorporated here by reference. Such untrue and misleading comparisons

15 with HunterHeati 's products and services and such intentional interference with Iltmterlleart's

16

~ u s t o m r

relationships have resulted in substanlial harm to HunlerHeart. Hunterlleart demanded that

7 BRLI correct its false statements and comparisons and take other

conectivc

action, hut BRLl refused.

18

15.

Also in connection with and following the false and misleading mass communication,

19

BRLI personnel directly informed some HunterH.eart customers and led others to believe that the

20 HunterHear t testing program would no longer be available from any source to physicians and groups

21 who had been using it successfully for more than six (6) years and that, as a result, those physicians

22

who wished to order a Huntcri ieart testing panel would need to replace it with BRLI's ACT panel.

23 For example, one

BRU

salesperson falsely told the largest HunterHeart client in Northern California

24 that Hw1terHcart had refused to sell or license its cardiovascular program to BRLI and also had

25 refused to allow BRT l to continue running I-TunterHeart panels. These statements were made in spite

26 of the fact that, as recently as early f ebruary 2014, HunterHcart had offered and encouraged BRLI to

27 make arrangements to continue to offer the H.untcriieart program in Nmthern California. And for

28 other customers who continued to insi st on access

to

the Hunteri -Ieart program in Northern California,


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1 BRLI sales personnel promised to them and provided results

of

the same tests included in the

2 HuntcrHeart program

but

reported those results

on

the second and later pages

of

a BRLI ACT report

3 fom1. And on at least one occasion, a

BRLI

sales manager went so far as to instruct RRLI patient

4

1

service center personnel to replace HuntcrHeart tests with the

ACT

panel on a requisition form

5 because

they

are the same thing. This BRLI sales rnanager also told at least one Tiw1terHeart client

6 that ACT is replacing the HunterHeart panel as it is the same thing. And in much the same manner

7 as its sales staff diverted business from and debased HunteriTeart in these ways, BRLI customer

8 service personnel were instructed to and did contact physicians and physician offices which had

9 ordered Hunterlleatt panels to in form them that the Hunterf-Teart program was no longer available

I

0 and hau been replaced by ACT. Th

is

occuncd despite the fact that BRLI (like all other participants

in the medical testing industry) routinely collects specimens for specific tests requested by physicians

12

which are not performed by

BRLI

and sends those to a laboratory which

can

(and does) perform

13

those pmticular tests.

14 16. Further still, at and around the end of the six (6) month Servicing Period BRLI refused

15

to turn over to HunterHeart various HunterHeart Enterprise assets and refused to pay HunterHeart

16 any amount from revenue which

it

(BRl ,I had derived from HunterHeart customers located in

17

Northern California. The HunterHcart Enterprise assets were

essential

for HunterHeart to transition

18 HunterHeart accounts to a n

ew

laboratory provider after the Servicing Period ended. These assets

9

included but were not limited to customer contact information, set up sheets, and physician

20 authorization fom1s. BRLI similarly delayed turning over

to

Hunted leart essential assets owned hy

21 HunterHcart in the form

of

information and material necessary for the new laboratory which

22 HunterHea1t had engaged to perfom1 HDL2b testing (a unique element of the HunterHeart basic test

23 par1el). As a result, HunterHeart was prevented from contacting, setting up, or providing services to

24 many Northern California customers and impaired

in

its ability to perform the

HDL2b

assay and to

25 provide to customers a complete testing program.

26

17.

BRLI 's retention

of

and/

or

delays

in

transferring various IIunteriiear t Enterprise

27 assets violate the Agreement.

See

Agreement, Exhibit 9.2). Pursuant to the Agreement,

28 HunterHeart continued to own all such assets. BRLl's unlawful conversion and manipulation

of


8/25

HunterHcart

property was

and is unauthorized and intentional

and

caused substantial harm to

2 HunterHeart.

3

18.

HunterHeart

is informed and believes, and

on

that basis alleges, that BRLI continues

4 to

purport

to offer the Hunter

Heart

test panel to

Northern

Cali rornia physicians and possibly

5

physicians

elsewhere

and to do so under its

own name

rather than that

ofHunterHeart. BRLI's

6 actions in this regard interfere with existing relationships

between HunterHeart and

its customers and

7 are

in

further violation of the Agreement. See Agreement, Section 9.2(a),

Noncompetition and

8 Non-Solicitation, page 30.)

These

actions also violate other of .HunterHeart's legal rights.

9 19. BRLI

engaged in

further unlawful efforts to misappropriate

and/or

destroy the

10 HunterHeart

Enterprise

in

Northern California by taking other

improper

steps l.o prevent

IlunterHeart

11

accounts

from being

properly maintained and serviced. Specifically, in

early

March

2014,

BRTJ

12 contacted

past employees

(phlebotomists)

of BRLI

located in Cal ifornia

who had

expressed interest

13

in

becoming

employed

by HunterHcart's new

testing

provider- West Pacific

Medical

Lab

14 ( WPML ) . BRLI stated in writing to

one

or

more such

former

employees that

they were barred

5 fiom working for WPML and from

providing

services for

any

other

company

to any BRLI customer

16

with

which the employee had

had contact during his or her tenure

with BRLI.

This included

17 Hunterl-leart customers. A true and correct

copy of

this letter sent on behalf of BRLI

is

attached

18

hereto as

Exhibit 13

and incorporated here by reference.

Not

surprisingly, and as

a

result

of BRU's

9 legally unjustified statements,

WPML has been

delayed

in or

prevented from hiring competent

20 personnel

necessary

to fully perform testing services

for

HunterHcart. DRLI's lawless intimidation

21 thus

prevented HunterHeart

from maintaining and servicing its accounts in

Northern

California,

22

:arming

HtmtcrHeart

yet

futther.

23

24

B

20

.

Unlawful ctions Taken y BRLI Outside OfNorthern California

In addition to the

un

lawful actions it carried out to interfere with, misappropriate,

25

and

/or destroy the

HunterHcart

Enterprise in Nmihern California, BRLI undertook a campaign to

26

damage HunterHeart's

business in other locations as well.

For

example,

BRLI

printed reports

on

27 non-HunterHeart forms and charged incorrect

amounts

to clients for tests

performed

for physicians


9/25

such

refusal could or would

harm HunterHeart s ongoing

relationship with

the

client involved.

2

Among other

damages, these actions resulted in

the

loss of Hunterl-

feart s

largest

non-Califomia

3 client

which

accounted for approximately 600,000 in annual revenue.

BRLI

likewise failed to

4

collect

on

billings to third party insurance companies, and failed

to

report and

pay

for revenues

5

received for

all HunterHeart

testing

performed

for clients outside

Northern

California.

6 21.

BRLI

also printed test result s delivered to

HunterHcart

customers outside Northern

7

California

on OBGYN

formatted reports.

This

is inexplicable

at

best, considering that

the

R

HunterHcart

program involves medical tests and

programs

to aid physicians

in

the diagnosis of and

9

recommendation

of

treatment programs for cardiovascular disease,

not

anatomic pathology and

10 sexually transmitted diseases. Not surprisingly, delivery

of such

inappropriate repmts to physician

clients resulted in substantial

harm

to

Hunterl

leart.

12 FIRST CAUSE OF ACTION

3

Intentional Interference with Contractual Relations)

4

22.

Hunterlleart

repeats

and

re-allcges paragraphs

l-21,

inclusive, as if fully set forth

15

herein.

6 23.

At all relevant times,

BRLI

knew

of

the existence

of

the

Agreement

and

its own

7

8

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20

2

22

23

24

25

26

27

28

obligations pursuant to the

Agreement

and

was

aware of the contraetmtl relations between

HunterHeart

and

HunterHcart cust

omers.

24. RRLI agreed as

an express

and material term

of

the

Agreement

that

it

would take such

actions as reasonably required to carry out the intent

and

purposes

of

the Agreement, including any

actions necessary to continue to properly operate the parties' respective businesses involved after the

August

7, 2013 c losing date.

Statt

ing the very first day after

the

close

of

the

transaction

contemplated by the

Agreement (August

R 2013) and continuing to the

present

, BRLI undertook a

purposeful

campaign

to sabotage

HunterHeart s

client relationshjps and to steal the

HunterHeatt

Enterprise business.

25.

BRLI

intentionally disrupted the HunterHeart Enterprise and knowingly engaged in

wrongful

conduct which

adversely affected I-lunterHeart's contractual relationships. Among other

things,

BRU

(i) failed to take

such

actions as reasonably required to carry

out

the

intent and purposes


10/25

1

of the Agreement, including actions necessary to continue to properly operate the parties respective

2 businesses after the August 7, 2013

dosing

date; (ii) failed to provide HunterHeart testing, related

3 services, and reports

on

I-hmterHeart s behalf with minimum competency for a period of

up

to six (6)

4

months after August

7

2013; (iii)

removed the HunterHeart name from test result rep01t forms;

5 (iv) made false and misleading comparative statements, including the

mass

communication to

6 HunterHeart s customers; (v) commenced a campaign whereby 13RLI personnel visited HunterHeatt

7 accounts to expound in person on the misleading contents

of

the mass communication; (vi) falsely

8 disseminated information to

Hunt

crHcart customers that the HunterHeart testing

program

would no

9

longer be available from any source to physicians and groups who had been using

it

successfully for

10

more

than six

(6)

years; and (vii) retained, delayed , and in

some

instances refused to transfer to

11

IlunterHeart

contact information, setup sheets, physician authorization forms, and other things which

12 were HuntcrHemt Enterprise assets and necessary for Hunterlleart to transition the Hunterlleart

13

accounts to a

new

laboratory provider following the servicing period.

14 26. As

a result of

the

conduct of BRLI

as

alleged herein, HunterHemt has been damaged

15

i.n an amount

to

be proven at trial. HunterHca1t

s

damages exceed the jurisdictional minimum of this

16 Court.

17

27.

BRLI s conduct was purpostful and intentional and done

in

conscious disregard for

8 TTunterHem1 s rights, thereby warranting the assessment

of

exemplary and punitive damages.

19 WHEREFORE,

HunterHeart prays for relief as set fotth below.

20 SECOND CAUSE OF ACTION

21 Intentional Interference with Prospective Economic Advantage)

22 28.

IlunterHemi

repeats and rc-alleges paragraphs 1-21, inclusive, as

if

fully set forth

23

herein.

24 29. BRLI engaged in the conduct alleged herein with the intent to interfere with and/or

25 destroy the economically advantageous relationships between HunterJieart and HunterHeart

26 customers and to make those relationships less :financially beneficial for HunterHcart.

27

28


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2

3

4

5

6

7

R

9

30. As a result

of

the

conduct of

BRLJ as alleged herein,

HunterHeart

has been damaged

in an

amount

to be proven

at

trial. Hunterl-

leart s

damages

exceed

the jurisdictional minimum of this

Court.

31.

BRLI s conduct was

purposeful and intentional

and done in


HunterHeatt s

rights, thereby warranting the assessment

of exemplary

and punitive damages.

WHEREFORE,

HunterHeart

prays for

relief

as set forth below.

32.

THIRD CAUSE OF ACTION

Breach

o

Contract)

HunterHeart

repeats and re-a leges paragraphs 1-21 , inclusive, as

if

fully set forth

lO

herein.

11

33.

llunterHcart has perfonned all

of

its obligations under the Agreement.

12

13

14

15

6

7

18

19

20

21

22

23

24

34. From and after August

8,

2013, RRLI t ~ i l c d to

meet

its obligations under the

Agreement by,

among other

things: (i) failing to take such actions as reasonably required to

cany

out

the intent and purposes of

the

Agreement, induding actions necessary to continue to properly operate

the

parties

respective businesses after

the August

7, 2013 closing date; (ii) failing to pay

all

amounts

due to Hunteriieart

under

the Agreement; (iii) failing to provide HunterHeart testing, related services,

and reports

on HunterHeart s behalf

with

minimum

competency

for

a period

of up to six (6) months

after

August

7,

201 3;

(iv) retaining and/

or

delaying the transfer

of various

HunterHeart Enterprise

assets necessary to

conduct

the HunterHeart husiness; (v) consistently

engaging

in willful and

malicious conduct with

the

intent to interfere with and/or

~ s t r o y

the economica.lly-advantageous

relationships betwe::en

HunterHeart

and HunterHeart customers;

and

(vi) failing and refusing to

release to

IlunterHcart

a large porti

on

of

th e purchase price

under

the Agreement.

35. As a result ofBRLI ' s breaches

of the

Agreement, Hunteriieart has been damaged in

an

amount

to he proven at trial. HunterHcart s dm11ages exceed

the

jurisdictional minimum

of

this

25 Court.

26 WHEREFORE,

HunteriTeart prays for

relief

as set forth below.

27

28


12/25

2

3

36

FOURTH

CAUSE OF

ACTION

(Breach

of

The

Implied

Covenant Of Good Faith And Fair

Dealing)

HunterHeati repeats and re-alleges paragraphs 1-21, inclusive, as if fully set forth

4 herein.

5

6

7

8

9

10

2

13

4

15

16

17

18

19

20

21

22

23

4

25

26

37.

3S

HunterHeart performed all

of

its obligations under the Agreement.

Every contract imposes upon each party to a contract a duty of good faith and fair

dealing in performance and enforcement

of

their agreement. This implied covenant

of

good faith and

fair dealing requires that no party

will

do anything that will have the effect of impairing, destroying,

or injuring the rights of the other party to receive the benefits of their agreement. The covenant also

implies that

in

all contracts each party will do all things reasonably contemplated by the terms of the

contract to accomplish its purpose. This covenant protects the benefits

of

the Agreement that

HunterHcart and BRLI reasonably contemplated when they entered into the Agreement.

As alleged

herein,

B RLI

failed to properly perform all

of

its obligations under the Agreement and otherwise

violated the implied covenant of good faith and fair dealing.

39. BRLI interfered with llunterHeart s right to receive the benefits

ofthe

Agreement by,

among other things: (i) failing to take such actions as reasonably required to carry out the intent and

purposes of the Agreement, including actions necessary to continue

to

properly operate the parties

respective businesses after the August 7,

2013

closing date:; (ii) tailing to pay all amounts due to

HunterHeart under the Agreement; (iii) failing

to

provide IlunterHcarl testing, related services, and

reports un Hunterlleart s

behalf

wi h minimum competency fur a period

of up

to six (o) months after

August 7, 2013 ; (iv) retaining and/or delaying the transfer of various IlunterHeart assets necessary to

conduct the HunterHeart business; (v) consistently engaging in willful and malicious conduct with

the intent to interfere with and/or destroy the economically-advantageous relationships between

HunterHeart and HunterHeart customers; and (vi) i l i n g and refusing to release to HunterHeart a

large portion of the purchase price under the Agreement.

40

As a result of

BRLI s

breaches of the covenant of good faith and fair dealing,

27 HunterHeart has been damaged in an amount to be proven at trial. HunterHemi s damages exceed

28 the jurisdictional minimwn of thi s Court.


13/25

2

3

4

5

6

herein.

7

WHEREFORE, HunterHeart prays for relief as set forth below.

FIFTH CAUSE OF ACTION

Violation Of California Business Professions

ode Sections 17200,

et seq -

Unfair Business Practices Act)

41 Hunter

Heart repeats and re-alleges paragraphs 1-21, inclusive, as if fully set forth

42.

The Unfair Business Practices Act defines unfair business competition to include any

8 "unfair," unlawful,"

or

fraudulc.nt business act or practice including any unfair, deceptive, untrue or

9 misleading advertising.

1

43 .

BRLI

's unlawful, unfair, and fraudulent business acts and practices are described

l throughout this Complaint. These include but are not limited to the following: (i) BRLI 's removal

of

12 the Hunter Icart name and mark from lest result report fnnns; (ii) BRLI's false and misleading

13 comparative statements, including the mass communication to H.untcrHeart's customer base; (iii) the

14 commencement of a campaign whereby RRT J persorU1el visitt:d HunterHcart accounts to expound in

15 person

on th

e misleading contents of the mass communication; (iv) BRLI's false dissemination of

16 infon:nation to IIunteriieart customers that the HuntcrHcari testing program would no longer be

7

available from any

source

to physicians and groups who had been using it successfully for more than

18 six (6) years; (v)

BRLI

' s delay and

in

some in stances refusal to transfer to HunterHeatt contact

19 information, setup sheets, physician authorization fom1s, and other things which were Hunte.rHeart

20 Enterprise assets and essential for HunterHeart to transition IIunterHeart accounts to a new laboratory

21 provider; (vi) BRLl's refusal to pay HunterHcart any amount

from

revenue derived from llunterJiearl

22 customers located

in

Nm1hern California; and (vii)

RRLI's

unlawful efforts to misappropriate and/or

23 destroy the

llunterlleart

Enterprise by preventing HuntcrHeart and/

or

its new laboratory provider

24 from maintaining and servicing the HunterHear t accounts; and (viii) threatening to commence legal

25 action against past employees (phlebotomists) ofBRLl who had expressed interest in becoming

26 employed by HunterHeart's new testing provider.

27

44.

BRLI has been unjustly enriched as a result

of

its wrongful conduct and by its unfair

2R comoetition. HunterHeart is accordinP:lv entitled to e ui table

relief

includin restitution and/or


14/25

disgorgement of all revenues, earnings, protits, compensation, and benefits obtained by BRTJ as a

2 result

of

such improper business practices.

3

45. BRLI s conduct was purposeful and intentional and done in conscious disregard for

4

HunterHeart s rights, thereby warranting the assessment

of

exemplary and punitive damages.

5


6

7

8

9

10 herein.

46 .

47.

SIXTH CAUSE OF

ACTION

(Violation Of California Business Professi.ons

Code Sections 17500, et seq.- False Advertising Laws)

HunterHeart repeats and re-alleges paragraphs 1-21, inclusive, as if fully set forth

BRLT s unfair, deceptive, untrue and/or misleading advertising are described

12 throughout this Complaint and include but are not limited to the following: (i) BRLl s false and

3

misleading comparative statements and specifically the mass communication to HunterHcart s entire

14 customer base; (ii) the commencement of a sales campaign whereby BR.LI personnel visited

5 HunlerHcart accounts to expound in person on the misleading contents ofthe mass communication;

6 (iii) BRLI

personnel s

false dissemination of information to HunterHcart customers that the

7 I-IunterHeart testing program would no longer be available from any source to physicians and groups

8 who had been using it successrully for more than six (o) years; and (iv) misrepresenting the origins of

9

llunterHeart tests and llunterHeart test results by removing the I-ItmterHeart name and trademark

20 from test result report forms and by rcpo1iing the results of Hunted-

Teart

tests on report forms bearing

2

the

BRT

J name and/or reference to the BRLI

ACT

testing program.

22

4 :1.

BRLT s dissemination

or

ralse and materially misleading and deceptive information

23 and the omission

of

material information, as discussed above and throughout this Complaint, for

24 purposes of inducing existing HunterHeart customers to request BRLI s

ACT

testing panel and cause

25 substantial financial hann to HunterHeart violates California Business and Professions Code Section

26

17500 etseq.

27

28


15/25

1

49

BRLI has

been

unjustly enriched as a result

of

its wrongful conduct. HunterHeart is

2 accordingly entitled to equitable relief including restitution and/or disgorgement

of

all revenues,

3 earnings, profits, compensation, and benefits obtained by BRLl as a result

of

such business practices.

4

50

BRLI's

conduct

was purposeful and intentional and done

in


5

6

HunterHeart 's rights, thereby warranting the assessment of exemplary and punitive damages.

WHEREFORE

, HunterHeart prays for

relief

as set forth below.

7

8

9

1

11

herein.

12

51

52

SF:VENTH C USE OF CTION

(Violation of California Business Professions

Code Section 16600)

Tiun.terHeart repeats and rc-alleges paragraphs l-21 , inclusive, as

iffully

set forth

BRLI's conduct violates California Business and Professions Code Section 16600,

13

which prohibits

eve

ry contract by which anyone is restrained from engaging in a lawful profession,

14 trade,

or business .

15

53.

Spccitically, in early March 2014, BRLI contacted past employees (phlebotomists) of

16 13RLI located in

California

who had expressed interest in

becoming employed by

HuntcrHeart's

new

17 testing provider- WPML. BRLI slated in writing to one or more such former employees that they

18 were barred flom working for

WPML

and from providing services

on behalf of

any other company to

19 any BRLI customer with which that employee had had contact during his or her employment with

20 BRLL This included HuntcrHeart customers. BRLI's legally unjustified statements and threats were

21 based on Paragraph 5(A) of the Ph lebotomist Non-Solicitation Agreement signed by former BRLI

22 employees.

23

54

Pursuant to California Business and Professions Code Section 16600 the Phlebotomist

24 Non-Solicitation Agreement is void because it expressly restrains former BRLI employees from

25 engagi

ng

in a lawful proicssion, trade, or business.

26

55.

As a result

of

I3RLI' s legally unjustified statements,

WPML

has been delayed in

or

27 prevented from hiring competent personnel necessary to fully perform testing services for

28


16/25

1 HuntcrHcart.

BRU s

lawless intimidation has prevented

HunterHeart

from maintaining and

2 servicing accounts

in

Northern California,

harming

llunterHeart yet further.

3

56.

As a result ofRRLI s unlawful conduct as alleged herein, Hunterl-Ierui has been

4

1

damaged in an amount to be proven at trial.

HunterHeart s damages exceed the

jurisdictional

5 minimum of

this

Comt.

6 WHEREFORE,

HunterHeart

prays for

relief

as set forth

below

.

7 EIGHTH CAUSE OF ACTION

8 Fraud)

9 57.

HunterHeart

repeats and re-alleges paragraphs

1-21,

inclusive, as

if

full y set forth

10

herein.

11

58.

At

the times BRLl

represented to

HunterHeart

that t (RRLI)

had

no interest in

12

acquiring

the

HunterH.erut Enterprise business and that BRLJ was not

plann

i

ng

to

expand

the very

13

limited offering it then

had in

that area, these statements were false.

IlunterHcart is

informed and

14 believes, and on that basis

alkges,

that BRLI s true intent

was

to acquire the HunterHeart Enterprise

15

business by failing to properly support the

same

during the Servicing Period, by interfering

with

16

relationships

between Hunteriiearl

and its clients,

by engaging in

various acts

ofunfair

competition,

17 an


17/25

2

3

4

5

6

7

8

9

1

11

12

13

14

15

16

17

18

19

2

21

22

23

24

25

26

27

28

herein.

62

NINTH CAUSE OF ACTION

Trademark Infringement

15

U.S.C.

1 114)

H untcrHeart repeats and re-alleges paragraphs 1-21, inclusive, as i fully set forth

63. The HunterHcart Enterprise was and is based in substantial

patton

the existence and

use of

certain

intellectual property assets. HtmterHcart was the developer of a highly successful set

of medical tests, testing programs, and guidelines to aid physicians in the assessm.ent

of

risk

of

heart

disease and stroke and in the recommendation

of

treatment regimens for cardiovascular conditions

and events. Key to this HUNTERHEJ\.RT Program is the

HUNTERHEART

Panel, which provides

lab results to facilitate assessment

of

risks beyond what

is

possible using

r ~ m l t s of

common heart

disease and stroke markers such as total, I .DL, and IIDL cholesterol, which are the tocus of the

traditional lipid panel. The IIUNTERHE.ART Panel employs the traditional lipid profile but also

includes results of a number oCnewcr tests that include intlammatory and genetic markers. By using

the HUNTERHEART Panel and resulting HUNTERHF.AKT Report, physicians can uncover hidden

factors that may indicate a high risk

of

heart attack

or

stroke

i

untreated. An exemplar

of

the

HUNTERilEART

Report is included at Exhibit

C

64. Since at least as early as May 2009, Hunterl-learl extensively used the

HUNTERH.EART word mark as well as the HUNTElu-IEART Hearl Design Mark (the

HUNTERHEART Marks ) in commerce in connection with its medical diagnostic testing services.

The HUNTERHEART Program has been and is used by physicians and hospitals throughout the

United States. Over

35,000

HlJNTERHEART Panel analyses have been conducted on individual

patients since the

HUNTI,RHEART Program was first introduced. IIUNTERJ-

IEART

Reports

reviewed and used by hospitals and physicians relative to individual patients each prominent display

one or both of the H UNTERHEAR T Marks.

65. As a result of this use and promotion, the HUNTERHEART marks have come

to

be

associated with HunterHeart and with the consistently high level of quality and service provided by

HunterHeart to its clients.

16


18/25

66. Hunterl-feart is the

owner

of the U .S. trademark registrations for the

HUNTERIIEART

2 Marks as shown below:

3

4

5

6

7

8

9

10

12

13

14

15

16

7

Mark

HlJNTERHEAR1 '

- ---c----

-

--

- - ,

Registration No.

3,

731

,206

3,731,207

escription

Medical

diagnostic testing, monitoring and

reporting services; Medical clinical

reference laboratory testing services; health

care services, namely, wellness programs;

medical consulting services in the field of

cardiology, consulting services in the field

of diagnostic medical testing; medical

information,

namely

, consumer-authorized

clinical laboratory testing services that

report results directly to

the

physician and

atient.

Medicul diagnostic testing, monitoring

and

reporting services;

Medical

clinical

reference laboratory testing services; health

care services ,

namely, wellncss

programs;

rnedic.al consulting services in the field

of

cardiology, consulting services in the tlcld

of diagnostic medical testing; rnedical

infonnution, name y, consumer-authorized

clinical laboratory testing services that

report results directly to the physician and

patient.

18

(Hereinafter

the

"

HUNTERHFART

Registrations "). Attached hereto as

Exhibit

Dare

true

and

19 correct copies of the certificates of registration for the 1-HJNTERHEART Registrations.

20

67.

The

HUNTERHEART Registrations are valid, subsisting, and conclusive evidence of

21

the validity of

each

of the subject marks, HuntcrHeart s

ownership

of the marks, and HunterHeart s

22 exclusive right to use

each

of the HUNTER HEART Marks in

commerce

or in connection with the

23 services specified in the HUNTERHEART Registrations.

24

68

BRLI has infringed and continues to infringe Hunted-Teart's federal registrations by

25

the selling, o1Tering for sale, distributing, and advertising medical diagnostic testing services under

26 the exact marks found in the HUNTERIIEART Registrations .

27

69.

BRLI' s

use

of

the HUNTRRHEART

Word Mark

and

tlw

TIUNTERHEART

Design

28 Mark in connection with medical diagnostic testing services without

HunterHeart s

explicit or

7


19/25

2

3

5

6

7

8

9

10

2

3

4

15

16

17

8

9

20

2

22

23

24

25

26

27

28

impLicit consent is intended and is likely to cause confusion,

to

cause mistake, and to deceive, and

has, upon information and belief, in fact caused confusion and mistake and deceived consumers and

potential consumers of such services.

70.

BRLT

will continue

to

infringe HunterHeart ' s HUNTERHEART Registrations and

cause irreparable harm unless enjoined

by

this Court.

71. BRLI's activities result in vio lation of Section 32 of the Lanham Act, and, upon

information and belief,

BRLI's

violation is and has been willful, intentional , and in conscious

disregard ofHunterlleart's rights.

72. As a direct result ofBRU's unlawful conduct, HunterHeart has been and will continue

to

he

irreparably and subs tantially harmed and injured.

Tf

BRU's infringement is permitted to

continue, Hunt.cri-Ieart will sustain fmtber loss, damage and irreparable injury. HunterfTeart is further

entitled to all other remedies set

fo

r

th

in Sections 34, 35 and 36 of the Lanham Act,

15

U.S.C.

1116, 7 and 11 18.


TENTH CAUSE OF ACTION

False Misleading Designation

of

Origin -

1 5

lJ.S.C.

ll25 a) l) A))

73.

Hunterl-Ieart repeats and re-alleges paragraphs

1-

21 inclusive, and 63-71, inclusive, as

if

fully

set

forth herein.

74. BRLI's use

o t h ~

HUNTERHEART Marks in connection with its rnedical diagnostic

testing services constitutes a false designation

of

origin, a false description ofBR

LI'

s se rvices, and a

false representation that BRLI's services are sponsored, endorsed, licensed, authorized

by

affiliated

with, or connected to HunterHcart.

75. As alleged herein, BRLT engaged in unlawful conduct to enhance the commercial

value of its own goods and services and this conduct directly infringed upon tJ1e I-HINTER HEART

marks. For example, among other things, BRLI misrepresented the origins

of

HunterHeart tests and

IIunterHeart test results by removing the HunterHeart name and trademark from test result repmt

f,)nns and by reporting the results

ofiiunterHeart

tests on report forms bearing the BRLI name

and/or reference to the BRLI ACT testing program. BRLI's actions and its passing

oil

of

1


20/25

HunterHeart test results as its own resulted in confusion, deception, and mistake among Hunter I-Jeart

2 customers.

BRLI's

conduct has caused a likelihood of confusion and deceived IlunterHeart

3 customers and, additionally, caused impairment of HunterHeart's goodwill and reputation as

4 symbolized by the

HUNTERHE

ART Marks.

5 76. RR.U's has used a copy, variation, simulation or colorable imitation of the

6 HUNTERITEART Marks with full knowledge

of

the long and extensive prior use

by

HunterHeart.

7

8

77.

78.

BRLI will continue to cause irreparable harm unless enjoined by this Court.

BRU s activities result in violation

of

Section 43

of

the Lanham Act and, upon

9

information and

b e l i e ~

BRLL s

violation is and has been willful, intentional, and in conscious

10 disregard of HuntcrHcart's right s .

79. As a direct result

ofBlUJ s

unlawful conduct, Hunteriieart has been and will continue

12 to be irreparably and substantially harmed and injured.

lfBRLI s

infringement is permitted to

13 continue, I-hmterlleart

will

sustain futther loss, damage and itTeparable injury. HunterHeart

is

further

14

I

entitled to all other remedies set forth in Sections 34,

35

and 36 ofthe Lanham Act, 15 U.S.C.

15 1116,1117andlll8.

16

WHEREFORE

, Hunter Ieart prays for relief as set forth below.

17 ELEVENTH CAUSE OF ACTION

18

False Advertising under the Lanham

ct

15

U.S.C.

1125 a) l) B))

19 80. HunterHeart repeats and re-allegcs paragraphs 1-21, inclusive, and

63

- 71, inclusive,

20 as if fully set forth herein.

21 81. BRU s use of the

HUNTERHEART

Marks in commercial advertising and promotions

22 misrepresents the nature, characteristics, qualities, or geographic origin

of

l3RLI's goods, services or

23 commercial activities.

24

82. BRLI s false and misleading advertising is described throughout this Complaint and

25 includes but is not limited to the following : (i) BRLI s false and misleading comparative statements

26 and specifically the mass communication to HunterHcart's entire customer base; (ii) the

27 conm1encement

of

a sales campaign whereby BRLI personnel visited HunterHeart accounts to

28 expound in person on the misleading contents of the mass communication; (iii) the actions of BRLI

19

customer

service personnel

who

were instructed to and did contact physicians

and

physician of tices


21/25

2

which had

ordered

the HunterHe

art panels to

inform

them that the

HunterHeatt program

was no

3 longer available and had been replaced by

ACT;

and (iv) misrepresenting

the

origins

ofHunterHeart

4 tests

and

HunterHeart test results by

removing

the IJunterHeart

name

and trademark from test result

5 report

fonns

and

by

reporting the results

of

HuntcrHeart tests on forms bearing the

BRLI name

6 and /or reference to the BRLI

ACT

testing program.

7

83.

These

acts by

BRLI

constituted false advertising in violation

of 15

U.S.C. section

8 1125(a)(l)(B).

9

84.

BRLI

s infringements

of

HunterHeart

s rights were willful and intended to reap the

10 benefit of the goodwill owned by Hw1terHeart.

85.

As a result

of the conduct

of BRLI as alleged herein, HunterHeati is entitled to

12 injunctive and

monetary

relief.

3

86.

As

a result ofl3RLT's conduct, IIunterHeart has suffered and will continue to su-tler

4 irreparable injury to its business reputation and goodwill.

HunlerHeart

is entitled to injunctive and

5

monetary relief as a result.

16 WI IEREfORE, 1

IunterHearl prays fur

relief

as set

f 1ih

below.

17

TWELFTH CAUSE OF ACTION

8

Conversion)

19

87 . HunterHeart

repeats and rc-allcgcs paragraphs 1-21, inclusive, as

if

fully set forth

20 herein.

21

88. The

Agreement

excluded certain assets identified and defined as the HunterTTcart

22

Enterprise.

The Hunterl

-Icart Enterprise

involved

and continues to involve a set of medical tests,

23 testing protocols, and guidelines to aid physicians in the diagnosis

of

and recommendation

of

24

treatment

programs

for cardiac

and

cardiovascular conditions and events.

The

HunterHcart

25 Enterprise assets

which HunterHeart

retained

pursuant

to the

Agreement

included all intellectual

26 properly, customer accounts,

equipment

, laboratory tests , license agreements, rights, and other things

27

necessary to conduct

the

HuntcrHcart business. Pursuant to the Agreement, HunterHeart and not

28 BRLI

would

continue to

own

and operate the HuntcrHcart Enterprise after August 7, 2013 .

2

COMPL INT

1

89

Despite these material terms ofthe Agreement and HunterHcart s explicit continuing


22/25

2

3

4

5

6

7

8

9

10

11

12

13

4

15

16

7

8

9

20

21

22

23

24

legal ownership of certain assets, as identified above, BRLT wrongfully misappropriated HunterHeart

Enterprise assets for its own benefit and to HunterHeart s detriment in violation

of

HunterHcart s

property rights.

90. More specifically, at and around the end

of

the six (6) month Servicing Period, BRLI

delayed and in some instances refused to transfer to Hunterlleart contact information, set up sheets,

physician authorization forms,

and

other things which were HunterHeart assets and essential for

HunterHeart to transition HunterHeart accounts to a new laboratory provider. BRLI similarly

delayed turning over to HunterHeart essential assets owned by HunterHeart

in

the form

of

certain

infonnation and material necessary

fm

the new laboratory which HunterHeati had engaged to

perform

HDL2b

testing (an essential unique element

of

the HunterHeart basic test panel). As a

result, HunterHeart was prevented from contacting, setting up, or providing services to many

customers and impaired in its ability to perform the HDL2b assay and to provide to customers a

complete testing program.

91. BRLI s unlawful conversion and manipulation of HunterHcrui propetiy was and is

unauthorized and intentional

and

caused substantial harm to Huntcri-Ieart

92. As a result of

BRLI s

acts

of

conversion, HuntcrHeati has been deprived

of

its

1

property rights and suffered drunages in an amount to be proven at trial. HunterHeart s damages

exceed the jurisdictional minimum of this Comt.

93.

BRLI s

conduct was willful, wanton, malicious , and oppressive and was untaken with

the intent to defraud, thereby warranting the assessment of exemplary and punitive damages.


THIRTEENTH CAUSE OF ACTION

Unjust Enrichment)

25 94.

HuntcrHcart repeats and re-alleges paragraphs 1-93, inclusive, as

if

fully set forth

26 herein.

27

28

2

95. Hunterl-leart

conferred

upon BRLI an

economic

bene it

when

it entered into the


23/25

2

3

4

5

6

7

8

9

10

Agreement

transfening substantially all

of

the operating assets and certain

of

the operating liabilities

of Hunter

Laboratories, Inc. to ORLI.

96 . BRLI

agreed

as

an

express and material

term ofthe

Agreement

that it would take such

actions as reasonably required

to

carry out the intent and puqJoses of the Agreement, including any

actions necessary to continue to properly operate the

parties

respective businesses after

the

August 7

2013 closing date.

In

reliance on BRT J s agreement to this

and other

provisions, HunterHeart signed

the

Agreement. HRLl, however, breached the

Agreement

in

numerous

respects, as discussed herein,

and

received an

economic

benefit as a result.

97

BRLI s financial benefits resulting from its unlawful

and

inequitable conduct are

11 economically traceable to,

among

other things: (i) BRU s material Cailures under

the

Agreement as

12 discussed herein; (ii) BRLI s

refu

s

al

to pay HunterHeaJi

any amount

from revenue derived from

13

HunterHca1i customers

located

in

Northern

California; (iii) BRLI s removal

of

the HunterHeart name

14 and mark from test

result

rcp01t fom1s and insertion

of

its own name (8RLl) in its place; (iv) BRLI s

J

5

false advertising and

dissemination of

false and materially

misleading

and deceptive information

16 regarding

HunterHeart s

test panel for purposes

of

inducing

existing

TiunterHearl customers to

17

request

BRLI ' s ACT

testing panel; (v) l3RLI's direction to

its

phlebotomists

to replace test

8 requisitions they received from physicians containing requests for TlunterHeart panels with a new

19 request form for BRLI s different ACT testing; (vi) BRLI s interference

with

existing agreements

20 between HunterHeart and its customers; (vii) BRLI s offerin g

of

the

HunterHeart

test panel under the

21 RRLT

and/or

ACT name

to

Northern

California physicians and possible physicians elsewhere; and

22 (viii) BRLI s failure to

report and pay

for revenuet> received for all

HunterHeart

clients outside

23

Northcm

California.

24

98.

The

economic

benefit from the above actions, among

other

actions by BRLI described

25 herein, arose trom BRLI s unlawful practices and conduct.

26

99.

t would be

inequitable

and

unjust for

BRLl

to

be

permitted

to

retain any

of

the

27

unlawful proceeds resulting

from

i ls fraudulent, illegal, and inequitable conduct.

28

1

100. BRLI has been unjust

ly

enriched

as

a re

su

lt of its wrongful conduct. HunterHemt is


24/25

2

3

4

5

6

7

8

9

10

1l

12

13

14

15

16

17

18

19

20

21

22

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25

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accordingly

en

titled to equitable relief including restitution and

/o

r disgorgemcnt

of

all revenues,

earnings, profits , compensation, a

nd

benefits obtained

by I3RLI as a

result

of

such misdeeds.

WHEREFORE, HunterH

em

t prays for relief as follows.

PR YER FOR RELIEF

WHEREFORE, PlaintitTrequests entry of judgment by this Court:

A Adjudging and ecreeing that BRLI has engaged in conduct alleged herein ;

B. Directing an accounting to be had

ofBRLI s

sales and profits derived

from

its

unlawful activities;

C.

D.

E

F.

G

II.

L

J.

For damages in an amount to he proven at trial;

For attorneys fees

as

and lo the extent permitted by the Agreement;

For both pre- ancl post-judgment interest at the maximum allowable

rate

on amounts

awarded;

For exemplary and punitive damages against

BRLT

according

lo

proof;

Awarding Hunterlleart treble damages and costs sustained by reason

ofHRLl s

infringement

of

the HUNTEKilEART Marks;

for costs of suit, including reasonable attorneys fees as and to the extent permitted by

law, including but not limited

to it

s reasonable attorneys fees under 15

U.S.C.

1117;

For preliminary and permanent injunctions barring BRLI its agents, servants,

licensees, partners affiliates employees

and

assigns, and all those acting under the

authority

of

or

in

privity with it from infringing the HUNTERHRART Registrations

and/or in any way using the

llUNT

ERIIEART Marks in connection with selling,

offering for sale,

di

stributing, advertising medical diagnostic testing services or

engaging

in

unfai r competition;

Ordering BRLI to destroy or otherwise render innocuous all sales and promotional

materials bearing the

HUNTERHEART

Marks, including but not limited to report

forms, catalogs, marketing materials, webpages , internet addresses, brochures,

advertisements and bu siness cards;

23

1

K.

Directing I3RLI, within thirty 30) days after

having

been

served

with notice of entry


25/25

2

3

4

5

L.

of

udgment

to file with this Court and to serve upon

Hunter

Heart a written report,

under

oath,

se

tting in fo rth in detail the manner in which BRLI has complied with

Paragraphs

J J above, inclusive; and

For

such other

and

further

relief

as

this

Court

deems just

and proper.

6 DEM ND FOR JURY TRI L

7

Plaintiff HunterHeart demands

a

jury

trial on a

ll

claims

so triable

in

this matter.

8

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Dated:

Au

gust 12,

2014

\

KILPATRICK

\

\OWNSEND STOCKTON LLP

By:

I ,

//_

. , . ,

.;;

Jon Michaelson

Byron Chin

i '

Atto

rneys

fur

P l a i n t i ~

\

.

HUNTERHEART

INC.

24

COMPL INT

Documents

Hunterheartvbrlicomplaint8 2014 140930092654 Phpapp01