FEDERAL TRADE COMMISSION et al v. HEALTH RESEARCH LABORATORIES LLC et al

Filing 49

ORDER By JUDGE JON D. LEVY. (jgd)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FEDERAL TRADE
COMMISSION, et al.,
Plaintiffs,
v.
HEALTH RESEARCH
LABORATORIES, LLC, et al.,
Defendants.

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ORDER

The Federal Trade Commission and the State of Maine (collectively,
“Plaintiffs”) bring this civil contempt proceeding against Health Research
Laboratories, LLC, Kramer Duhon, and Whole Body Supplements, LLC (collectively,
“Contempt Defendants”), for alleged violations of Section II.H of the Stipulated Final
Judgment and Order previously entered in this action (“the Judgment”). In addition
to moving for an Order to Show Cause (ECF No. 21), the Plaintiffs move to modify
the Judgment (ECF No. 22). Health Research Laboratories and Duhon cross-move to
modify the Judgment (ECF No. 30), and the Contempt Defendants move to stay the
contempt proceedings until the cross-motions to modify the Judgment are resolved
(ECF No. 31). Pursuant to my orders dated April 1 and April 8, 2020, I now address
the threshold question of whether Section II.H of the Judgment is ambiguous on its
face as a matter of law. For the reasons explained below, I conclude that Section II.H
is facially ambiguous.

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I. BACKGROUND
In a complaint dated November 30, 2017, the Plaintiffs alleged that Duhon and
his company, Health Research Laboratories, made deceptive health- and diseaserelated claims about several products, including the dietary supplements
BioTherapex and NeuroPlus. On January 16, 2018, with the consent of the parties,
I approved and entered the Judgment. The Court retained jurisdiction for purposes
of construing, modifying, and enforcing the Judgment.
The Judgment resolved all matters in dispute in the underlying action,
including the complaint’s allegations that Duhon and Health Research Laboratories
violated state and federal law “in connection with the labeling, advertising,
marketing, distribution, and sale of products purported to cause weight loss, treat
arthritis, relieve joint and back pain, and prevent or mitigate cognitive decline.” ECF
No. 15 at 2. The Judgment prohibits Health Research Laboratories, Duhon, and
“officers, agents, employees, and all other persons in active concert or participation
with any of them, who receive actual notice” of the Judgment, from making several
categories of representations. E.g., id. at 6. For example, Section I, entitled “Banned
Weight-Loss Claims,” prohibits seven specific representations about certain products’
ability to cause weight loss in consumers. Id.
Section II is entitled “Prohibited Representations: Other Weight-Loss Claims,
Joint-Related Disease Claims, and Alzheimer’s Disease, Memory, and Cognitive
Performance Claims.” Id. at 7. Section II concerns representations not already
prohibited by Section I which state that any Covered Product: (A) causes weight loss;
(B) causes fat loss; (C) treats or cures rheumatism, arthritis, or osteoarthritis; (D)
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relieves joint pain, back pain, or muscle pain; (E) protects the brain against
Alzheimer’s disease or dementia; (F) reverses memory loss; (G) improves memory,
concentration, or cognitive performance; or (H) “[c]ures, mitigates, or treats any
disease.”

Id. at 8.

The Judgment defines “Covered Products” as “any Dietary

Supplement, Food, or Drug, including BioTherapex and NeuroPlus.” Id. at 4. In
addition to providing definitions of “Dietary Supplement,” “Food,” and “Drug,” the
Judgment specifies that “including” means “including but not limited to.” Id. at 4−5.
Representations covered by Section II are prohibited unless they are “nonmisleading” and substantiated by human clinical testing that is “randomized, doubleblind, . . . placebo-controlled,” and conducted by qualified researchers. Id. at 8−9.
Section III, entitled “Prohibited Representations: Other Health-Related
Claims,” covers representations “about the health benefits, safety, performance, or
efficacy of any Covered Product” beyond those representations already prohibited by
Sections I and II of the Judgment. Id. at 9. Representations covered by Section III
are prohibited unless they are “non-misleading” and are substantiated by competent
and reliable scientific evidence, which is defined as:
[T]ests, analyses, research, or studies (1) that have been conducted and
evaluated in an objective manner by experts in the relevant disease,
condition, or function to which the representation relates; (2) that are
generally accepted by such experts to yield accurate and reliable results;
and (3) that are randomized, double-blind, and placebo-controlled
human clinical testing of the Covered Product, or of an Essentially
Equivalent Product, when such experts would generally require such
human clinical testing to substantiate that the representation is true.
Id. at 9−10.
Additionally, Section IV prohibits certain misrepresentations about scientific
evidence made in connection with any Covered Product, and Section VII prohibits
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certain misrepresentations about endorsements of Covered Products.

Finally,

Section VIII prohibits seven specific misrepresentations made “in connection with the
advertising, marketing, promotion, offering for sale, sale, or distribution of any good
or service.” Id. at 14.
The Plaintiffs contend that the Contempt Defendants violated Section II.H of
the Judgment by making unsubstantiated claims that four products—Neupathic,
Black Garlic Botanicals, BG18, and The Ultimate Heart Formula—cure, treat, or
mitigate the following diseases: diabetes, diabetic neuropathy, cardiovascular
disease, atherosclerosis, and hypertension. The Contempt Defendants respond that
Section II.H was not intended to cover representations relating to diabetes, diabetic
neuropathy, cardiovascular disease, atherosclerosis, and hypertension. In keeping
with my procedural order dated April 8, 2020, I now address whether the scope of
Section II.H is facially ambiguous.
II. LEGAL STANDARD
When determining the scope of a consent decree such as the Judgment, courts
apply “[o]rdinary contract principles.” Navarro-Ayala v. Hernández-Colón, 951 F.2d
1325, 1339 (1st Cir. 1991). Disputed terms are read “in the context of the decree as
a whole.” Quinn v. City of Boston, 325 F.3d 18, 30 (1st Cir. 2003) (citing Newport
Plaza Assocs. v. Durfee Attleboro Bank, 985 F.2d 640, 646 (1st Cir. 1993)). Courts
consider the language contained within the “four corners” of the decree along with
the circumstances surrounding its formation, any technical meaning the words used
may have had to the parties, and any other documents expressly incorporated in the
decree. United States v. Charter Int’l Oil Co., 83 F.3d 510, 516−17 (1st Cir. 1996)
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(citing United States v. Armour & Co., 402 U.S. 673, 681−82 (1971) and United States
v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975)).

If the text of a decree is

ambiguous, extrinsic evidence of the parties’ intent may be considered to resolve the
ambiguity. See id. at 519 (citing Brennan v. Carvel Corp., 929 F.2d 801, 808 (1st Cir.
1991)); Navarro-Ayala, 951 F.2d at 1343 n.21. A consent decree is ambiguous if it is
“susceptible to reasonable alternative interpretations.” Converse Inc. v. Reebok Int’l
Ltd., 328 F. Supp. 2d 166, 176 (D. Mass. 2004) (citing Sportfolio Publ’ns, Inc. v. AT &
T Corp., 320 F.3d 75, 79 (1st Cir. 2003)).
Similarly, under Maine law, contracts are interpreted “in accordance with the
intention of the parties, which is to be ascertained from an examination of the whole
instrument.” Dow v. Billing, 224 A.3d 244, 249 (Me. 2020) (quoting Am. Prot. Ins. Co.
v. Acadia Ins. Co., 814 A.2d 989, 993 (Me. 2003)). “All parts and clauses must be
considered together [so] that it may be seen if and how one clause is explained,
modified, limited or controlled by the others.” Id. (quoting Am. Prot. Ins., 814 A.2d
at 993). Ultimately, contracts are construed “to give effect to the plain meaning of
the words used in the contract and avoid rendering any part meaningless.” Id. (citing
Scott v. Fall Line Condo. Ass’n, 206 A.3d 307, 311 (Me. 2019)). If a contract “contains
an ambiguity that cannot be resolved from the four corners of the document, the
interpretation of the ambiguous language becomes a question for the fact-finder to
resolve by taking extrinsic evidence.” Id. (citing In re Estate of Barrows, 913 A.2d
608, 613 (Me. 2006)).

Contractual language is ambiguous if it is “reasonably

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susceptible of different interpretations.” Williams v. Williams, 161 A.3d 710, 713
(Me. 2017) (quoting Am. Prot. Ins., 814 A.2d at 993). 1
The determination of facial ambiguity is “particularly important” in a civil
contempt proceeding. Converse Inc., 328 F. Supp. 2d at 176. “Civil contempt may be
imposed to compel compliance with a court order or to compensate a party harmed by
non-compliance.” United States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005) (citing
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)).

“To prove civil

contempt, a movant must show that (1) the alleged contemnor had notice of the order,
(2) ‘the order was clear and unambiguous,’ (3) the alleged contemnor ‘had the ability
to comply with the order,’ and (4) the alleged contemnor violated the order.” Hawkins
v. Dep’t of Health & Human Servs., 665 F.3d 25, 31 (1st Cir. 2012) (quoting Saccoccia,
433 F.3d at 27). When evaluating whether a court order is “clear and unambiguous,”
the question is “not whether the order is clearly worded as a general matter.”
Saccoccia, 433 F.3d at 28. Instead, the “clear and unambiguous” prong “requires that
the words of the court’s order have clearly and unambiguously forbidden the precise

1 The parties cite Maine law to identify the applicable principles of contract interpretation. Several
circuits and some district courts in the First Circuit have applied state contract law when interpreting
consent decrees such as the Judgment. See, e.g., Evoqua Water Techs., LLC v. M.W. Watermark, LLC,
940 F.3d 222, 229 (6th Cir. 2019), cert. denied, No. 19-1079, 2020 WL 2515510 (U.S. May 18, 2020);
Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1252 (11th Cir. 2008); Collins v. Thompson, 8 F.3d 657,
659 (9th Cir. 1993); NAACP v. Donovan, Civil Action No. 78-850-DPW, 2009 WL 792301, at *11 (D.
Mass. Mar. 17, 2009). The First Circuit has not explicitly opined on whether the relevant contract
principles derive from state law or federal law, but it has consistently applied federal-law precedents
when determining the scope of consent decrees. See, e.g., Quinn, 325 F.3d at 30; Charter Int’l, 83 F.3d
at 516−19; Lamphere v. Brown Univ., 875 F.2d 916, 920−21 (1st Cir. 1989); see also Equova Water, 940
F.3d at 236−45 (Bush, J., concurring) (persuasively advocating for the federal-law approach). Even
under the federal-law approach, however, state law can provide useful guidance. See Equova Water,
940 F.3d at 243 (Bush, J., concurring). Additionally, the contract principles set forth in the precedents
of both the First Circuit and the Maine Law Court are substantially equivalent. For these reasons, I
consider both state and federal precedents in determining whether the Judgment is facially
ambiguous.
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conduct on which the contempt allegation is based.” Id. (emphasis omitted) (citing
Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)). Indeed, the language of
the order must leave “no reasonable doubt” that the allegedly contumacious conduct
is prohibited. Id. (quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir. 1991)).
Because there is significant overlap between the question of whether Section
II.H of the Judgment is facially ambiguous under ordinary principles of contract
interpretation and the question of whether Section II.H, on its face, clearly and
unambiguously prohibits the Contempt Defendants’ allegedly contumacious conduct,
this Order addresses both questions. 2
III. DISCUSSION
The Plaintiffs contend that the Contempt Defendants violated Section II.H by
making unsubstantiated claims that four Covered Products—Neupathic, Black
Garlic Botanicals, BG18, and The Ultimate Heart Formula—cure, treat, or mitigate
the following diseases: diabetes, diabetic neuropathy, cardiovascular disease,
atherosclerosis, and hypertension. Section II.H of the Judgment prohibits
representations that any Covered Product “cures, mitigates, or treats any disease”
unless the representations are non-misleading and substantiated by human clinical
testing that is randomized, double-blind, placebo-controlled, and conducted by
qualified researchers, as outlined above. ECF No. 15 at 8.

2 This Order does not finally determine whether Section II.H “clearly and unambiguously” prohibited
the “precise conduct” on which the Plaintiffs’ contempt allegations are based. Saccoccia, 433 F.3d at
28. At the conference of counsel held on April 8, 2020, the Plaintiffs suggested that, in their view,
extrinsic evidence is admissible in the civil contempt proceeding for the purpose of determining
whether Section II.H is clear and unambiguous. If the Plaintiffs intend to press this argument, they
shall inform the Court at the next conference of counsel, to be scheduled by the Clerk of Court, and
the Court will set a briefing schedule on the admissibility of extrinsic evidence for this purpose.
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The Plaintiffs assert that the phrase “any disease” in Section II.H, on its face,
clearly and unambiguously encompasses all diseases, including diabetes, diabetic
neuropathy, cardiovascular disease, atherosclerosis, and hypertension. The
Plaintiffs’ argument comports with the plain meaning of the phrase “any disease.”
This is powerful evidence supporting the Plaintiffs’ interpretation, but it is not
dispositive on its own: I must read Section II.H “in the context of the [Judgment] as
a whole,” not in isolation. Quinn, 325 F.3d at 30 (citing Newport Plaza Assocs., 985
F.2d at 646).
The Contempt Defendants assert that Section II.H, on its face, does not clearly
and unambiguously prohibit representations relating to diabetes, diabetic
neuropathy, cardiovascular disease, atherosclerosis, and hypertension. Rather, the
Contempt Defendants contend that the phrase “any disease” in Section II.H
encompasses only diseases involving or relating to weight loss, joint disease,
Alzheimer’s disease, memory, and cognitive decline. They argue that the Plaintiffs’
broad interpretation of the phrase “any disease” is unsupported by the purpose,
structure, and text of the Judgment as a whole. I evaluate each of the Contempt
Defendants’ arguments in turn.
A.

Purpose
The Judgment’s stated purpose was “to resolve all matters in dispute in this

action between them, including the allegations in the Complaint.” ECF No. 15 at 2.
The Judgment thus sought to resolve the complaint’s allegations that Duhon and
Health Research Laboratories violated state and federal law in connection with the
“labeling, advertising, marketing, distribution, and sale of products purported to
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cause weight loss, treat arthritis, relieve joint and back pain, and prevent or mitigate
cognitive decline.” Id. As such, the Contempt Defendants assert that the Judgment
was only intended to prohibit representations relating to weight loss, arthritis, joint
and back pain, and cognitive decline.
Contrary to the Contempt Defendants’ argument, the Judgment as a whole
reflects an intent to enjoin conduct beyond the conduct alleged in the complaint. For
example, although the complaint’s allegations related primarily to the products
BioTherapex and NeuroPlus, Section I of the Judgment prohibits certain
representations relating to “any Dietary Supplement, over-the-counter Drug, patch,
cream, wrap, or other product worn on the body or rubbed into the skin.” Id. at 6.
Similarly, Sections II, III, IV and VII enjoin certain representations relating to “any
Covered Product,” which is defined as “any Dietary Supplement, Food, or Drug,”
including but not limited to BioTherapex and NeuroPlus. Id. at 4, 7, 9, 10, 13; see
also id. at 5 (defining “including” as “including but not limited to”). Further, Section
VIII prohibits certain misrepresentations relating to “any good or service,” which
plainly encompasses a broader scope of representations than those alleged in the
complaint. Id. at 14.
Additionally, although the Judgment characterized the complaint’s allegations
as related to representations about certain products’ ability to “cause weight loss,
treat arthritis and relieve joint and back pain, and prevent or mitigate cognitive
decline,” id. at 2, the Judgment as a whole encompasses representations about other
health benefits and conditions as well. For example, Section III prohibits “any
representation about the health benefits, safety, performance, or efficacy of any
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Covered Product,” unless the representation is non-misleading and substantiated by
competent and reliable scientific evidence. Id. at 9. Further, Section IV.B enjoins
misrepresentations that “the performance or benefits of any Covered Product are
scientifically or clinically proven or otherwise established,” id. at 10, and Section IV.C
prohibits misrepresentations about the “existence, contents, validity, results,
conclusions, or interpretations of any test, study, or other research,” id. at 11.
Sections VII and VIII similarly enjoin certain misrepresentations regardless of
whether the representations relate to weight loss, arthritis, joint and back pain, or
cognitive decline.
Because the text of the Judgment plainly enjoins a broader scope of conduct
than the conduct alleged in the complaint, the Plaintiffs’ interpretation of Section
II.H to encompass diseases beyond those discussed in the complaint is consistent with
the purpose of the Judgment.
B.

Structure
The Contempt Defendants further assert that the Plaintiffs’ broad

interpretation of the phrase “any disease” in Section II.H is inconsistent with the
structure of the Judgment because it would render Section III’s prohibition on “Other
Health-Related Claims” redundant and therefore meaningless. However, Section III
prohibits a broader swath of representations than Section II.H: Section III prohibits
misleading or unsubstantiated representations about “the health benefits, safety,
performance, or efficacy of any Covered Product,” id. at 9, whereas Section II.H
prohibits only misleading or unsubstantiated representations that any Covered
Product “[c]ures, mitigates, or treats any disease,” id. at 8. As such, Section III
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retains legal force and effect even if the phrase “any disease” is interpreted to include
all diseases, as the Plaintiffs suggest. Further, Section III specifies that it pertains
only to the representations not already covered under Sections I and II. Accordingly,
Sections II and III are not duplicative even if Section II.H is interpreted broadly. 3
The Contempt Defendants object that at least portions of Section III would be
rendered nonsensical by an expansive interpretation of Section II.H because Section
III contains the word “disease,” which would not be appropriate if Section II.H covers
representations relating to any and all diseases. However, Section II.H covers only
representations that a Covered Product “[c]ures, mitigates, or treats” a disease. Id.
at 8. It is plausible that at least some disease-related representations—such as
representations that a Covered Product prevents a certain disease—would not fall
within the ambit of Section II.H.

Further, it is likely that any disease-related

representations not covered by Section II.H would fall within the scope of Section III.
Thus, there is no inconsistency between Section III of the Judgment and a broad
interpretation of the phrase “any disease” in Section II.H.

The Plaintiffs assert that the canon against surplusage—the principle that courts should avoid
interpretations that render terms in a contract redundant—is only relevant when resolving ambiguity,
not when determining whether a disputed term is ambiguous. The Plaintiffs rely on Ardente v.
Standard Fire Ins. Co., 744 F.3d 815, 819 (1st Cir. 2019). However, Ardente discusses redundancy
only in the specific context of insurance policies, and it acknowledges that in general, “redundancy
may itself be a form of ambiguity.” Id. Some authorities on contract interpretation similarly suggest
that the canon against surplusage is relevant to the initial determination of ambiguity. See 11 Samuel
Williston & Richard A. Lord, Williston on Contracts § 32:5 (4th ed. 1990) (classifying the canon against
surplusage as a “primary rule” to be referenced when determining ambiguity); see also OfficeMax Inc.
v. Sousa, 773 F. Supp. 2d 190, 216 (D. Me. 2011) (applying the canon against surplusage when
discussing contractual ambiguity); Dow, 224 A.3d at 251 (citing Estate of Barrows, 913 A.2d at 611)
(same). In any event, I am unpersuaded by the Contempt Defendants’ arguments relating to the canon
against surplusage, as discussed above.
3

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C.

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Text
As mentioned above, the Plaintiffs’ interpretation of the phrase “any disease”

in Section II.H as encompassing all diseases is consistent with the plain meaning of
Section II.H.

However, the Contempt Defendants contend that the Plaintiffs’

interpretation is inconsistent with the text of Section II as a whole, including the
section heading. 4
Section

II’s

heading

lists

three

specific

categories

of

“Prohibited

Representations”: (1) “Other Weight-Loss Claims,” i.e., weight-loss claims not already
covered by Section I, (2) “Joint-Related Disease Claims,” and (3) “Alzheimer’s Disease,
Memory, and Cognitive Performance Claims.” Id. at 7. Each category corresponds to
certain representations prohibited by Sections II.A−G. For example, the “Other
Weight-Loss Claims” referred to in the heading correspond to Section II.A and II.B,
which prohibit misleading or unsubstantiated representations that any Covered
Product causes weight loss or fat loss. Id. Similarly, “Joint-Related Disease Claims”
correspond to Sections II.C and II.D, which prohibit misleading or unsubstantiated
representations that any Covered Product “[t]reats or cures rheumatism, arthritis, or
osteoarthritis” or “[r]elieves joint pain, back pain, or muscle pain.” Id. at 8. Finally,
“Alzheimer’s Disease, Memory, and Cognitive Performance Claims” correspond to
Sections II.E, II.F, and II.G, which prohibit misleading or unsubstantiated

4 The Plaintiffs contend that section headings are relevant only when resolving ambiguity, not when
determining whether a contract term is ambiguous. However, the Plaintiffs rely on authorities
discussing statutory interpretation, not contract interpretation. Although there is some overlap
between principles of statutory interpretation and principles of contract interpretation, I am
persuaded by the Defendants’ argument that the section headings are part of the whole document that
I must consider. See Williston & Lord, Williston on Contracts § 32:5; 5 Margaret N. Kniffin, Corbin
on Contracts § 24.21(A)(15) (1993 ed.).
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representations that any Covered Product “protects the brain against Alzheimer’s
disease or dementia,” “reverses memory loss,” or “improves memory, concentration,
or cognitive performance.” Id. None of the three specific categories listed in the
section heading corresponds directly to Section II.H, which prohibits misleading or
unsubstantiated representations that any Covered Product “[c]ures, treats, or
mitigates any disease.”
As the Contempt Defendants contend, the Plaintiffs’ broad interpretation of
Section II.H is not consistent with the entire text of Section II. Interpreting the
phrase “any disease” in Section II.H as encompassing all diseases would render the
section heading underinclusive: The section heading enumerates the categories of
representations prohibited by Sections II.A−G but does not account for the broad
category of representations that would be prohibited by an expansive reading of
Section II.H.

Relatedly, interpreting Section II.H expansively would render the

section heading misleading because the heading tends to suggest that the scope of
Section II is limited to representations regarding the enumerated health benefits and
diseases and does not encompass representations regarding other diseases.
The Contempt Defendants offer an alternative interpretation of Section II.H
which avoids these inconsistencies. Under the Contempt Defendants’ interpretation,
the phrase “any disease” in Section II.H would encompass only diseases involving or
relating to the health benefits and diseases enumerated in Section II’s heading—i.e.,
diseases involving or relating to weight loss, joint disease, Alzheimer’s disease,
memory, and cognitive decline. The text of Section II provides some support for this
interpretation.

The close correspondence between the categories in Section II’s
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heading and the contents of Sections II.A−G suggests that the parties intended to
delineate the scope of Section II somewhat specifically in the section heading. As
such, the absence of a category corresponding to Section II.H in the section heading
could be taken to mean that Section II.H was not intended to expand the scope of
Section II. In other words, Section II.H reasonably could be interpreted as a catchall provision, covering disease-related representations within the scope of Section II’s
heading that were not specifically contemplated in Sections II.A−G. 5
D.

Conclusion as to Facial Ambiguity
The Plaintiffs’ interpretation of Section II.H to encompass representations

relating to all diseases—including diabetes, diabetic neuropathy, cardiovascular
disease, atherosclerosis, and hypertension—is supported by the plain text and the
broad purpose of the Judgment.

However, the Contempt Defendants’ narrower

interpretation of Section II.H—which does not encompass representations relating to
diabetes,

diabetic

neuropathy,

cardiovascular

disease,

atherosclerosis,

and

hypertension—is also reasonable in light of Section II’s heading. Because Section
5 The Defendants raise two additional arguments based on the text of Section II, but both are
unpersuasive. First, the Defendants assert that the Plaintiffs’ interpretation of Section II.H is
inconsistent with the text of Section II because it would render Section II.C redundant. However, the
Defendants’ proposed interpretation would have the same effect. Thus, any potential redundancy in
Section II.C is not relevant to my analysis.

Second, the Defendants assert that the scope of Section II.H is limited by Sections II.A−G under
the interpretive principle known as ejusdem generis, which provides that “the meaning of a general
term in a contract is limited by accompanying specific illustrations.” Kniffin, Corbin on Contracts §
24.28. Although Section II.H contains the general phrase “any disease,” Sections II.A−G cannot be
fairly characterized as accompanying specific illustrations of that phrase. For example, Sections II.A,
II. B, II.D, and II.G cover representations about a Covered Product’s ability to “cause[] . . . weight loss,”
“cause[] . . . fat loss,” “relieve[] joint pain, back pain, or muscle pain,” and “improve[] memory,
concentration, or cognitive performance,” respectively. ECF No. 15 at 7−8. Although these
representations could be disease-related in some contexts, they could also appear in contexts unrelated
to any disease. Thus, I conclude that the principle of ejusdem generis does not assist in the
interpretation of Section II.H. Accordingly, I need not resolve the Plaintiffs’ additional arguments
regarding ejusdem generis.
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II.H is susceptible to reasonable alternative interpretations, I conclude that it is
facially ambiguous. Accordingly, I also conclude that Section II.H does not, on its
face, clearly and unambiguously cover representations relating to diabetes, diabetic
neuropathy, cardiovascular disease, atherosclerosis, and hypertension, which form
the basis for the Plaintiffs’ contempt allegations.
IV. CONCLUSION
For the foregoing reasons, I conclude that Section II.H of the Judgment is
facially ambiguous and does not, on its face, clearly and unambiguously prohibit the
Contempt Defendants’ allegedly contumacious conduct. In keeping with my Order
dated April 8, 2020, it is ORDERED that the Clerk shall schedule a video status
conference to establish the framework by which the pending motions will be
addressed.

SO ORDERED.
Dated: July 31, 2020
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

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