Republic Technologies (NA), LLC et al v. BBK Tobacco & Foods, LLP d/b/a HBI International

Filing 930

MEMORANDUM Opinion and Order: For the reasons stated in the attached Memorandum Opinion and Order, Republic's motion for disgorgement, interest, and attorneys' fees 923 is denied, except that HBI will be liable for Republic's attorne ys' fees accrued regarding the "Alcoy" deceptive language. Within 30 days, Republic is directed to enter a fee petition and supporting documentation as to its calculated amount of attorneys' fees. Signed by the Honorable Thomas M. Durkin on 4/19/2023. Mailed notice. (ecw, )

Case: 1:16-cv-03401 Document #: 930 Filed: 04/19/23 Page 1 of 15 PageID #:29201

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REPUBLIC TECHNOLOGIES (NA), LLC,
and REPUBLIC TOBACCO, L.P.,

No. 16 C 03401

Plaintiffs,

Judge Thomas M. Durkin

v.
BBK TOBACCO & FOODS, LLP, d/b/a HBI
INTERNATIONAL,
Defendant.

MEMORANDUM OPINION AND ORDER
The motion now before the Court stems from a jury’s finding that Defendant
BBK Tobacco & Foods, LLP (“HBI”) engaged in unfair competition and violated the
Illinois Uniform Deceptive Trade Practices Act (“IUDTPA”) in its packaging and
promotional activities for its RAW® Organic Hemp branded tobacco rolling paper
products. After lengthy proceedings regarding post-trial equitable relief, Plaintiffs
Republic Technologies (NA) LLC and Republic Tobacco, L.P. (collectively “Republic”)
have filed a renewed motion for disgorgement, prejudgment interest, and attorneys’
fees. R. 923. That motion is granted as to a portion of the attorneys’ fees but is
otherwise denied.
Background
During the jury trial in this case, Republic alleged that HBI, its competitor in
the tobacco rolling paper industry, engaged in false advertising under the Lanham
Act, unfair competition, and violations of the IUDTPA. HBI counterclaimed that

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Republic infringed its copyrights and trade dress. R. 800, 802. On June 25, 2021, the
jury returned its verdict. R. 805. The jury ruled for HBI on one of its copyright
infringement claims and one of its trade dress claims against Republic and awarded
HBI $979,620 in lost profits and $40,000 in statutory damages. Id. With respect to
Republic’s claims against HBI, the jury found that HBI did not engage in false
advertising under the Lanham Act, but that HBI had engaged in unfair competition
under Illinois common law and violated the IUDTPA. Id. Because neither party
requested a special verdict form, the jury did not make any special findings as to
which statement(s) by HBI created a likelihood of confusion or misunderstanding and
thus violated the IUDTPA, nor did it specify why it found no Lanham Act violation. 1
Id.; R. 801 at 10. Because the jury was instructed not to consider the question of
damages as to the unfair competition and IUDTPA claims (and plaintiffs cannot seek
monetary damages under that statute, see Chicago’s Pizza, Inc. v. Chicago’s Pizza
Franchise Ltd. USA, 384 Ill. App. 3d 849, 866 (2008)), Republic was not awarded any
monetary damages. R. 801 at 5; R. 805.
Republic filed a post-trial motion for equitable relief, seeking a permanent
injunction on certain of HBI’s advertising statements that Republic claimed were the
basis for the jury’s verdict, as well as disgorgement of profits and attorneys’ fees. R.
815. Specifically, Republic took issue with the following statements on which it had
also based its Lanham Act false advertising claim: (1) that HBI’s rolling paper is

A request for a special verdict form on these issues, if made, would have greatly
simplified the post-trial proceedings in this case.

1

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“made in Alcoy, Spain, the birthplace of rolling paper;” (2) that HBI’s RAW “Organic
Hemp” papers are the “World’s Only” or “World’s First” organic hemp rolling papers;
(3) that HBI contributes its funds or sales to a charitable entity called the “RAW
Foundation;” (4) that HBI’s rolling papers are made with “natural hemp gum;” (5)
that RAW rolling papers are “100% wind powered;” and (6) that OCB Organic Hemp
papers (Republic’s products) are knock-offs, “RAWnabees,” copies, or fake versions of
RAW. R. 801; R. 828 at 24–25; R. 891 at 3–5; R. 901 at 9. After multiple rounds of
briefs which are not at issue here, HBI agreed to entry of an injunction. However,
some disputes regarding the specific language of the injunction remained.
On December 6, 2022, this Court issued a Memorandum Opinion and Order
which made factual findings, addressed the parties’ remaining disputes concerning
the language of the injunction, and granted in part Republic’s motion for equitable
relief. R. 916. Specifically, the Court made in-depth factual findings regarding HBI’s
claim that its rolling paper is made in Alcoy, Spain and held that HBI made untrue
claims that its “papers are made in a historical town [Alcoy] by craftsmen.” R. 916 at
6–8. Up to that point, the Court had focused solely on issues pertaining to the
permanent injunction. The Court requested renewed briefing on Republic’s requests
for disgorgement and attorneys’ fees. Republic’s renewed motion is now before the
Court. R. 923.
Discussion
I.

Disgorgement

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Republic first seeks the equitable remedy of disgorgement of profits. Arguing
that all of HBI’s RAW brand profits from 2009 until present day resulted from HBI’s
unfair competition and deceptive business practices, Republic requests the
disgorgement of every cent of profit from HBI’s RAW brand during that time period—
over $34 million. This extraordinary request, however, is not supported by adequate
evidence, nor is it appropriate considering the other factors of the case.
“[E]quity courts have routinely deprived wrongdoers of their net profits from
unlawful activity.” Liu v. SEC, 140 S. Ct. 1936, 1942 (2020) (collecting examples that
this remedy goes by the name of “disgorgement,” an “accounting,” or an “accounting
for profits”). Regardless of what the remedy is called, it rests on the basic principle
that “[i]t would be inequitable that a wrongdoer should make a profit out of his own
wrong.’” Id. at 1937 (quoting Root v. Railway Co., 105 U.S. 189, 207 (1888)). But a
district court is not required to award disgorgement upon a violation and should
instead consider the equities in light of the unique circumstances of the case. BASF
Corp. v. Old World Trading Co., 41 F.3d 1081, 1096 (7th Cir. 1994) (upholding district
court’s refusal to award disgorgement of profits related to Lanham Act false
advertising violation); S.E.C. v. Collins, No. 01 C 3085, 2003 WL 21196236, at *5
(N.D. Ill. May 21, 2003) (“The district court has broad discretion in deciding whether
to award disgorgement at all.”).
The IUDTPA does not allow for disgorgement as a remedy. The text of the
IUDTPA provides only for injunctive relief, and if the violation was willful, attorneys’
fees. There is at least one Illinois case that has specifically held that a “[p]laintiff

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cannot seek . . . an accounting of defendant’s business under the Deceptive Trade
Act.” Empire Home Servs., Inc. v. Carpet Am., Inc., 274 Ill. App. 3d 666, 670–71 (1995)
(reversing dismissal of IUDTPA claim but striking requests for damages and an
accounting). The IUDTPA does, however, contain a provision affirming that the
IUDTPA remedies are additional to any other remedies available against the same
conduct under the common law. 815 ILCS 510/3. And here, the jury also found that
HBI committed common law unfair competition, which may carry with it the right to
disgorgement, though the parties have not cited, and this Court could not find, an
example in Illinois in the last 75 years. See Nestor Johnson Mfg. Co. v. Alfred Johnson
Skate Co., 313 Ill. 106, 112, 126 (1924) (affirming an equitable decree that “awarded
an accounting . . . for all profits that accrued” to a manufacturer whose deceptive
practices “amount[ed] to unfair competition.”); Ferrocart Corp. of Am. v. Johnson
Labs., 50 F. Supp. 151, 152 (N.D. Ill. 1943) (discussing the availability and amount
of an accounting as a remedy for patent and unfair competition violations).
Assuming that disgorgement is an available remedy under the Illinois common
law, but absent guidance from Illinois courts, the Court turns to the Restatement
(Third) of Unfair Competition for guidance. Continental Vineyard, LLC v. Vinifera
Wine Co., LLC, 973 F.3d 747, 758–59 (7th Cir. 2020) (holding that the district court
did not abuse its discretion in referring to the Restatement of Unfair Competition in
the absence of Michigan state law on the availability of disgorgement). Under the
Restatement, disgorgement is appropriate only when (1) “the actor engaged in the
conduct with the intention of causing confusion or deception,” and (2) “the award of

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profits is not prohibited by statute and is otherwise appropriate” in light of all of the
factors of the case. Restatement (Third) Unfair Competition, § 37(1) (1995);
Continental Vineyard, 973 F.3d at 759. If disgorgement is proper and a “substantial
factor in producing a sale,” the wrongdoer is liable for “the net profits earned on
profitable transactions resulting from the unlawful conduct.” Restatement at § 37(1),
cmt. d.
A. There is No Proof the Contested Statements Were a Substantial
Factor in Producing Sales.
Though Republic claims that all of HBI’s profits from 2009 to present day
resulted in part from its false statements, Republic does not provide sufficient proof
for this claim. R. 923 at 11. Instead, it merely argues that the false statements were
“central to the brand identity,” and thus must have been a “substantial factor” in
HBI’s sales. Id. Republic hinges its argument on this Court’s statement, in granting
the agreed injunction, that HBI’s false and misleading statements “are likely to cause
consumers to choose HBI’s products over Republic’s products.” R. 916 at 4. But first,
that finding is not directly on point—it looked at “likely” future harm to Republic, not
actual proof of causation of HBI’s past profits. And second, that finding was made in
the context of entry of an agreed injunction. Here, since the appropriateness of the
requested relief is disputed, Republic must provide evidentiary support for its
contentions.
Republic did not provide any evidence at trial that the contested statements
actually influenced consumer buying decisions or generated profits. Indeed, Republic
failed to present evidence showing that any of the contested statementsinfluenced a
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single consumer’s purchasing decision. As the Seventh Circuit explained in an unfair
debt collection practices case in which consumer confusion is an element of proof, a
“plaintiff must come forward with evidence beyond . . . his own self-serving
assertions” to establish impact on consumers. Durkin v. Equifax Check Servs., Inc.,
406 F.3d 410, 415 (7th Cir. 2005). Indeed, Republic could have provided survey data
or consumer testimony, but did not. See R. 851 at 1115–16 (Republic General Counsel
Seth Gold’s testimony that Republic did not have evidence from any consumers that
HBI’s statements affected consumer purchasing decisions); see also Durkin, 406 F.3d
at 415 (The “need for additional evidence on consumer confusion . . . might be met
through the use of a carefully designed and conducted consumer survey.”).
Republic mainly points to the testimony of HBI’s own witnesses that the
purpose and effect of the “RAW Foundation” promotion and charitable giving
campaigns 2 was to drive more sales, increase brand awareness, and enhance brand
loyalty. R. 853 at 1546–53 (HBI’s Chief Operating Officer, Matthew Colvard, agreeing
that giving back “helps build brand loyalty” and “sell more products.”); id. at 1653
(HBI’s marketing expert, Dr. Chernev, explaining that charitable giving by a brand
leads consumers to “perceive the products of that brand as working better, lasting
longer, to be superior in performance”); R. 855 at 2173, 2177 (HBI’s officer of
charitable giving, Tracy Boak, testifying that the typical purpose and effect of
promising donations from purchases is to drive purchases). But though there was no
official “Raw Foundation” entity, HBI did indeed donate moneys to charities and

2

This was just one of the contested statements.
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conduct charitable events. See R. 853 at 1546–50. Additionally, statements by a
company that it believes its advertising is important and would generate profits “is a
truism,” but is not evidence that the advertising actually had that effect. Ill. Tool
Works, Inc. v. Rust-Oleum Corp., 955 F.3d 512, 515 (5th Cir. 2020).
Republic finally points to the parties’ competing damages experts who
attributed certain amounts of HBI’s profits to the challenged statements. R. 855 at
2191, 2195–96, 2240. But HBI’s expert admitted that he did not review any consumer
data or have any background in understanding consumer behavior. Id. at 1241.
Republic’s expert also admitted that he did not know “how much of HBI’s profits are
attributable to the challenged statements;” did not “have any basis for adjusting [his]
profit opinion to account for the fact that the jury might accept some of the
statements, but not all of them, as false advertising;” and did not “have any basis for
an opinion that any of the challenged advertisements actually increased HBI’s
profits.” R. 851 at 1171–72. Both experts, whose conclusions and methodologies were
not based in any objective, measurable evidence, provided inadequate proof that any
particular statement impacted a sale.
The lack of evidence that the wrongful conduct was a “substantial factor” in
producing sales is “fatal” to an award of disgorgement. See Ill. Tool Works, Inc., 955
F.3d at 515 (vacating disgorgement award where plaintiff failed to present evidence
at trial that “link[ed] [the defendant]’s false advertising to its profits, that permit[ted]
a reasonable inference that the false advertising generated profits, or that show[ed]

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that even a single consumer purchased [the product] because of the false
advertising.”).
HBI argues that the jury’s verdict further confirms that Republic did not meet
its burden of proof on causation. The jury found for Republic on its IUDTPA and
unfair competition claims (which had the same elements of proof), but against
Republic for its false advertising claim under the Lanham Act. R. 805. The IUDTPA
and Lanham Act require proof of similar elements, but the Lanham Act additionally
required Republic to prove the deception “was likely to influence the purchasing
decisions of consumers,” while the IUDTPA did not. R. 801 at 3, 9–11. The Lanham
Act count also required, unlike the IUDTPA, that the deception “actually misleads a
customer.” Therefore, according to HBI, the verdict implies that the jury found that
the statements at issue in this case either did not or were not likely to influence
consumers’ purchasing decisions. But this is reading too much into the jury’s verdict.
The jury could have found, for example, that HBI did not make false statements (as
required under the Lanham Act) but had made statements that “create[d] a likelihood
of . . . confusion,” (as required under the IUDTPA). Id. The Court will not speculate
on the basis of the jury’s verdict without a special finding, so there is nothing in the
jury’s verdict that informs the Court’s decision on disgorgement.
B. The Factors of the Case Do Not Support Disgorgement
Even if Republic could establish that HBI’s IUDTPA and unfair competition
violations were a substantial factor in its profits, the factors the Court should consider
in determining the suitability of a disgorgement award do not weigh in favor of

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granting relief. Under the Restatement (Third) of Unfair Competition § 37(2), a court
should only award disgorgement when the actor engaged in the conduct in bad faith
and when the award of profits is not prohibited by statute and is otherwise
appropriate in light of all of the factors of the case. The factors listed by the
Restatement include (a) the degree of certainty that the actor benefitted from the
unlawful conduct; (b) the relative adequacy to the plaintiff of other remedies; (c) the
interests of the public in depriving the actor of unjust gains and discouraging future
unlawful conduct; (d) the role of the actor in bringing about the deceptive marketing;
(e) unreasonable delay by the plaintiff in bringing suit; and (f) any related misconduct
on the part of the plaintiff. Setting aside the question of whether HBI acted willfully
or in bad faith (see section II, infra), the majority of the factors of the case do not
weigh in favor of granting Republic’s request for disgorgement. 3
First, as discussed, there is not sufficient evidence that HBI reaped profits
because of the unlawful conduct (factor (a)). There is a lack of evidence that a single
consumer purchased HBI’s RAW Organic Hemp products because of the challenged
statements. Consumers could have purchased the RAW brand products because of
the unusual brand name, the products’ function (i.e., the way it tastes or the rate it

There are only two factors, factors (d) and (e), on the pro-disgorgement side of the
ledger. HBI and its CEO, Joshua Kesselman, were undeniably directly involved in
the promotion of the deceptive marketing. Additionally, this Court already found, in
denying HBI’s motion for judgment as a matter of law on its laches defense, that HBI
had not proven that Republic unreasonably delayed in bringing suit. See R. 888 at 9–
10. All other factors weigh against disgorgement.
3

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burns), or because of CEO Joshua Kesselman’s social media presence. But that is
merely speculation, just as attributing sales to the challenged statements would be.
As to factor (b), the sufficiency of other remedies, Republic has already
obtained broad injunctive relief. Republic argues that because the jury was not able
to award any monetary remedy under the IUDTPA, the injunctive relief the Court
granted was inadequate. But where there is a lack of evidence that the statements
affected anyone’s purchasing decisions, injunctive relief is an adequate remedy.
And because Republic seeks in its request for disgorgement the entirety of
HBI’s profits over a fourteen-year period, the Court also notes the risk of a windfall
recovery to Republic and of HBI’s potential liability for multiple recoveries. There are
22 hemp-based competitor rolling paper products on the market. 4 R. 928-1. Republic
has no particular claim to all of HBI’s profits in light of the apparently large number
of potential competitors, all of whom may have suffered sales losses because of HBI’s
misleading statements, and therefore would then rightly be entitled to a portion of
those profits. There are numerous examples in which courts have refused to award
disgorgement in similar circumstances. BASF, 41 F.3d at 1096 (“[A]n accounting may
overcompensate for a plaintiff’s actual injury and create a windfall judgment at the
plaintiff’s expense,” (quoting George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532,

Republic claims the relevant market is not hemp-based tobacco rolling papers (in
which there are 22 competitor brands), but organic hemp-based tobacco rolling papers
(in which the only competitors are Republic and HBI). The Court is not convinced
that other hemp-based tobacco rolling papers that do not have the word “organic” on
them could not fairly be characterized as a competitor product. Again, there is no
evidence (survey evidence or otherwise) that proves consumers’ purchasing choices
were based on whether hemp tobacco rolling paper was organic.
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1540 (2d Cir. 1992))); see also Oshana v. Coca-Cola Co., No. 04 C 3596, 2005 WL
1661999, at *10 (N.D. Ill. July 13, 2005) (“By seeking disgorgement of profits beyond
those gained at her expense, [the plaintiff] essentially seeks recovery for Coca-Cola’s
hypothetical liability to other consumers.”). The Restatement also acknowledges that
a disgorgement award “is less likely to be appropriate” in the case of deceptive
marketing because “[a] defendant who falsely describes the qualities of its own
product may be unjustly enriched by the deception, but often no specific competitor
will have a compelling claim to the defendant’s profits. There is also a risk of multiple
recoveries of the same profits.” Restatement § 37 at cmt. f. To award Republic the
entirety of HBI’s profits, then, would overcompensate Republic and put HBI at risk
of multiple recoveries of the same profits. 5 In such circumstances, the injunction is
an adequate remedy.
Factor (c) also does not support disgorgement as a remedy. The injunctive relief
already granted will sufficiently protect consumers from the misleading statements.
Republic argues that enjoining future use of the misleading statements does not
sufficiently deter HBI from engaging in similar misconduct. True, courts sometimes
grant requests for disgorgement for the deterrent effect, even where disgorgement is
inappropriate as compensation. Id. at cmt. b (“Thus, courts gradually adopted the
view that in an appropriate case an accounting of the defendant’s profits could be

Even if Republic proposed disgorgement of just a portion of profits based on market
share, disgorgement would still be inappropriate because of the fundamental
deficiency of proof that any false statements affected a purchase. See Section I.A.,
supra.
5

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awarded . . . to deter future infringement. This perspective emphasizes the gains
earned by the defendant rather than the losses incurred by the plaintiff.”); BASF, 41
F.3d at 1095 (“[D]isgorgement is most appropriate when . . . the defendant would not
otherwise be deterred.”). But Republic has admitted that it cost HBI money to bring
itself into compliance with the injunction by removing numerous marketing
statements from all packaging, marketing, and promotional materials for upwards of
600 items. See R. 917 at 9; R. 919 at 8. Though it has not owed damages, HBI has
designed, implemented, and manufactured new packaging for a huge number of
products, revised advertisements and marketing materials, and sold off or destroyed
existing inventory. See generally R. 917. All of this, some of which was ordered on a
more accelerated timetable than HBI wanted, resulted in hard cost expenses that
would not have been incurred but for the injunction. This factor, too, counsels against
disgorgement of profits.
And finally, regarding factor (e), Republic is not a completely innocent party in
the matter. The jury specifically found that Republic willfully infringed HBI’s trade
dress and copyright in its competitor OCB product. R. 805. Republic’s infringement
and HBI’s deceptive marketing are directly intertwined—they occurred in the
promotion of competing products by competing companies. This is yet another reason
why it would be inappropriate for a willful infringer to then obtain an award of $34

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million in profits from the very party it infringed even though that competitor
engaged in its own misconduct. 6, 7
II.

Attorneys’ Fees
The IUDTPA provides that costs, attorneys’ fees, or both may be assessed

against the defendant “if the court finds that [defendant] has willfully engaged in a
deceptive trade practice.” 815 ILCS 501/3. Willful conduct is defined as conduct that
is “voluntary and intentional, but not necessarily malicious.” Chicago’s Pizza, 384 Ill.
App. 3d at 868; see also Neuros Co., Ltd. v. KTurbo, Inc., 08-CV-5939, 2013 WL
1706368, at *4 (N.D. Ill. Apr. 17, 2013) (continued attempts to deceive customers
sufficient to justify fees).
This Court has already found that HBI acted with willfulness as to its Alcoy
statements. In the December 2022 Opinion, this Court found that HBI’s advertising
activities about Alcoy “were a clear effort to take advantage of the city of Alcoy’s
history in the production of tobacco rolling papers, without HBI actually making its
own papers there.” R. 916 at 8. Moreover, when HBI—a full year after trial—claimed
that any problems with its Alcoy statements could be solved by essentially
rearranging the punctuation of its previous statements, this Court found that it was

The Court further takes note of HBI’s claim that Republic engaged in inappropriate
conduct by flaunting the issuance of the injunction. In the same vein, HBI may seek
to use this Order in its marketing. The parties should just compete fairly and not use
the Court’s Orders as yet another marketing device. And although HBI argues that
Republic’s use of HBI’s “RAW” brand name in the title of a PR website infringes its
trademark, this alleged infringement is not the subject of this lawsuit.
7 Because disgorgement will not be awarded, the Court need not address Republic’s
request for interest.
6

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“an attempt to mislead.” R. 910 at 4-5. HBI should therefore be liable for Republic’s
reasonable attorneys’ fees accrued as to the “Alcoy” deceptive language issue. 8 This
can easily be calculated with regard to the preparation of post-trial briefing on the
Alcoy language. Recognizing that a large portion of Republic’s attorneys’ time was
spent on other statements and on defending its own infringing conduct, Republic
should further confer with HBI to calculate an appropriate portion of attorneys’ fees
attributable to the time spent during the other parts of the case on the Alcoy issue. 9
Conclusion
For the foregoing reasons, Republic’s motion for disgorgement, interest, and
attorneys’ fees is denied, except that HBI will be liable for Republic’s attorneys’ fees
accrued regarding the “Alcoy” deceptive language. Within 30 days, Republic is
directed to enter a fee petition and supporting documentation as to its calculated
amount of attorneys’ fees.
ENTERED:

__________________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: April 19, 2023

It is not necessary or efficient to make further factual findings as to the falsity of
other statements.
9 It is hoped that this aspect of the lengthy litigation between the parties does not
launch even more satellite disputes. If the dispute regarding attorneys’ fees becomes
too contentious, the Court will likely appoint a special master to resolve it, with the
parties equally splitting the special master’s fees.
8

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