Nutreance LLC et al v. Primark, LLC et al

Filing 189

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that 146 Defendants' Motion to Exclude the Testimony of Sanford Krachmalnick is DENIED. IT IS FURTHER ORDERED that 170 Defendants' Motion to Strike Exhibits is GRANTED in part and DENIED in p art, as set forth in detail above. IT IS FURTHER ORDERED that 140 Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part, as set forth in detail above. IT IS FINALLY ORDERED that 157 Plaintiffs' Motion to Strike Portions of the Declaration of Jayson Sohi is DENIED, as moot. Signed by District Judge Stephen R. Clark on 7/10/20. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NUTREANCE LLC, et al.,
Plaintiffs,
vs.
PRIMARK, LLC, et al.,
Defendants.

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Case No. 4:18-cv-00098-SRC

Memorandum and Order
This is a trademark infringement/false advertising case involving competitors in the
nutritional-supplements market. Plaintiffs allege that Defendants orchestrate a scheme to publish
sham reviews of Plaintiffs’ products online, on websites purporting to be independent and
unbiased, but actually controlled by Defendants. These review sites include “rankings” of
products that invariably rank Plaintiffs’ products as inferior, and rank Defendants’ competing
products as the top choice. Plaintiffs further allege that Defendants use Plaintiffs’ trademarks as
paid search engine terms to steer potential customers to the fake review sites, and ultimately to
Defendants’ own products.
This matter comes before the Court on several pending motions. Defendants move for
summary judgment on all claims in Plaintiffs’ complaint. Doc. 140. Defendants also move to
strike certain exhibits submitted by Plaintiffs in opposition to Defendants’ motion for summary
judgment. Doc. 170. Defendants separately move to exclude the testimony of Plaintiffs’
damages expert, Sanford Krachmalnick. Doc. 146.

Finally, Plaintiffs move to strike portions

of a declaration of Defendants’ lead counsel, and related supporting materials. Doc. 157.

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I.

Facts and background
A.

The parties

Plaintiff Nutreance LLC markets and sells nutritional supplement products under trade
names including RediCalm, RediMove, RediMind, and RediNite. Plaintiff Idingo, LLC markets
and sells nutritional supplement products under trade names including Proaxil, Menoprin,
Jointprin, and Brainol. Plaintiff Koech Corp. markets and sells nutritional supplement products
under trade names including Macafem. Koech Corp. federally registered the MACAFEM
trademark in 2013. In 2018, after the filing of this lawsuit, Nutreance LLC federally registered
the trademarks REDICALM, REDIMOVE, REDIMIND, and REDINITE. All Plaintiffs market
and sell their nutritional products on the internet.
Defendant Admark, LLC also markets and sells nutritional supplements on the internet.
Defendants Danny and Brendan O’Shea are the sole members of Admark, LLC. Defendants
Primark, LLC, iHealth Fulfillments Services Limited Liability Company, and Wastena Holdings,
LLC are additional entities, either active or dissolved, of which Danny and Brendan O’Shea are
or were the sole members. Defendant Olympia O’Shea is Danny O’Shea’s wife.
B.

The non-party review hosts

21 Century Web is an India-based entity that publishes online reviews of nutritional
supplements. 21 Century Web hosts these reviews at websites including
consumerhealthdigest.com, dailyhealthanswers.com, and thebeautyinsiders.com (the “Review
Websites”). The founder and CEO of 21 Century Web is Mohammed Khanbahadur. In 2019,
Khanbahadur formed a new entity, Kyzooma Pvt. Ltd., using the same business address as 21
Century Web, and transferred ownership of the Review Websites to Kyzooma. Doc. 105-6. The
Court refers to non-parties 21 Century Web and Kyzooma collectively as the Review Hosts.

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In 2015, Admark contracted with the Review Hosts to conduct “affiliate marketing” for
Admark. Under the affiliate marketing agreement, Admark agreed to pay the Review Hosts a
20% commission on all sales of Admark products referred by the Review Websites. The Review
Hosts agreed to place banner advertisements for Admark products on the Review Websites. In
turn, Admark agreed to allow the Review Hosts to use its intellectual property (including trade
names) in product reviews published on the Review Websites.
The Review Hosts disclose on the Review Websites that they may receive a commission
for sales of products referred by the Review Websites. However, an “Advertising Disclosure” on
all Review Websites states: “We are independently owned and the opinions expressed herein are
our own. All editorial content is written without prejudice or bias, regardless of sponsor or
affiliate associations.”
C.

Teresa Dowdell

Teresa Dowdell is a former business partner of Brendan and Danny O’Shea. According
to Dowdell, the editorial independence proclaimed by the Review Hosts is a lie. Dowdell
worked with Brendan and Danny O’Shea from 2002 to 2014; first for an entity named Nutrazone
LLC and later for an entity named Syntegy LLC. Dowdell avers that Danny and Brendan
O’Shea first began working with the Review Hosts to market and sell nutritional supplements for
Nutrazone in 2002. According to Dowdell, Khanbahadur and another man, Khalid Rizwan,
operated the Review Hosts, but Brendan and Danny O’Shea actually controlled them.
Dowdell avers that Brendan and Danny O’Shea partnered with Khanbahadur and Rizwan
of the Review Hosts in a scheme as follows: the Review Hosts hosted websites that purported to
give unbiased “reviews” of competitor’s products using a sham and manipulated ranking system.
The Review Hosts paid third-party copywriters to prepare the reviews with an appearance of

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objectivity, but always concluding that the competitors’ products were inferior. Potential
customers who entered the name of competitors’ products into search engines would see results
near the top of the list using phrases like “shocking facts,” “exposed,” “scam,” or “warning,” and
urging customers to first review the Review Hosts’ purportedly-unbiased reviews before
purchasing the competitor’s product. Prospective customers who clicked on these links would
see the Review Hosts’ sham review, including false and disparaging information about the
competitor’s product. The review pages would invariably rank Brendan and Danny O’Shea’s
products as “#1” or “top choice.” Though the Review Websites purported to be independent and
unbiased, Brendan and Danny O’Shea actually controlled what content was posted or taken
down, and the Review Hosts did not independently control the content of the Review Websites
without oversight from the O’Sheas.
Dowdell avers that Danny and Brendan O’Shea, through their partnership with the
Review Hosts, would also use the names of competitors’ products as paid search engine terms,
so that customers searching for competitors’ products would instead be directed to the Review
Websites. According to Dowdell, Brendan and Danny O’Shea’s nutritional supplement
businesses derived the majority of their revenue from these marketing tactics.
D.

Present suit

Each of the Plaintiffs market and sell nutritional supplements that are the subject of
“reviews” hosted on the Review Websites. Each Plaintiff claims quantifiable losses as a result of
Defendants’ marketing tactics. Plaintiffs bring claims for trademark infringement and false
advertising under the Lanham Act, 15 U.S.C. §§1114, 1125(a), as well as Missouri common law
claims for unfair competition, commercial disparagement, defamation, and tortious interference.

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II.

Motion to exclude expert testimony
A.

Standard

Federal Rule of Evidence 702, which governs the admission of expert testimony in federal
court, provides in relevant part:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. Under Rule 702, district courts act as gatekeepers, ensuring that expert
testimony is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 589, 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert, 509 U.S. at 597). The reliability
requirement means “the party offering the expert testimony must show by a preponderance of the
evidence both that the expert is qualified to render the opinion and that the methodology
underlying his conclusions is scientifically valid,” while the relevance requirement demands “the
proponent must show that the expert’s reasoning or methodology was applied properly to the
facts at issue.” Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010) (quoting Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)).
The Eighth Circuit Court of Appeals has stated that proposed expert testimony must meet
three criteria to be admissible under Rule 702. “First, evidence based on scientific, technical, or
other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of

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fact.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “Second, the proposed
witness must be qualified to assist the finder of fact.” Id. “Third, the proposed evidence must be
reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it
provides the assistance the finder of fact requires.” Id. (internal quotation marks omitted). To
meet the third requirement, the testimony must be “based on sufficient facts or data” and be “the
product of reliable principles and methods,” and the expert must have “reliably applied the
principles and methods to the facts of the case.” Id.; Fed. R. Evid. 702(b)-(d).
The Eighth Circuit has admonished district courts “not to weigh or assess the correctness
of competing expert opinions.” Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th
Cir. 2014). “As long as the expert’s scientific testimony rests upon ‘good grounds, based on
what is known’ it should be tested by the adversary process with competing expert testimony and
cross–examination, rather than excluded by the court at the outset.” Id. (quoting Daubert, 509
U.S. at 590, 596). “Only if the expert’s opinion is so fundamentally unsupported that it can offer
no assistance to the jury must such testimony be excluded.” First Union Nat. Bank v. Benham,
423 F.3d 855, 862 (8th Cir. 2005). “Courts should resolve doubts regarding the usefulness of an
expert’s testimony in favor of admissibility.” Marmo, 457 F.3d at 758.
B.

Analysis

The Court first considers Defendants’ motion to exclude Plaintiffs’ proffered damages
expert, Sanford H. Krachmalnick. Doc. 146. Plaintiffs retained Krachmalnick as a damages
expert for the purpose of determining the amount of d=Defendants’ earnings derived from
Defendants’ allegedly infringing activities. The parties have fully briefed the motion to exclude.
The Court has taken into consideration the parties’ arguments, the deposition transcripts

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submitted, and Krachmalnick’s report in making this determination. For the reasons set forth
below, the Court denies the motion.
Defendants argue for the exclusion of Krachmalnick’s testimony on multiple grounds.
First, Defendants argue that Krachmalnick’s testimony should be excluded as unreliable because
it is factually unsupported. Second, Defendants argue that Krachmalnick’s methodology was
unreliable and misapplied. Finally, Defendants argue that Krachmalnick’s testimony should be
excluded as “the mere extension of counsel’s unproven assumptions.” Doc. 147 at 13.
Defendants do not challenge Krachmalnick’s credentials or qualifications, and the Court
finds that he is qualified. Krachmalnick is a certified public account with over thirty years of
experience in his field. Doc. 149-2 at 69. He is a member of the American Institute of Certified
Public Accountants, the Missouri Society of Certified Public Accountants, and the National
Association of Accountants. Id. He has experience in audit and forensic accounting, including
in the litigation context. Id. Plaintiffs retained Krachmalnick as a damages expert for the
purpose of determining the amount of Defendants’ earnings derived from Defendants’ allegedly
infringing activities. Krachmalnick’s qualifications meet the requirements of Rule 702.
Krachmalnick’s report includes two categories of conclusions, based on two distinct
sources of data. First, Krachmalnick quantifies the annual profits of Defendant Admark, LLC
based on financial records provided by Defendants. Second, Krachmalnick purports to quantify
online sales of Defendants’ products traceable to Plaintiffs’ trademarks, based on information
provided by a third-party vendor, Order Dynamics Corporation. Defendants apparently do not
challenge the first category of Krachmalnick’s conclusions. Instead, all of Defendants’
criticisms relate to the second category of Krachmalnick’s conclusions: the quantification of
Defendants’ sales allegedly traceable to Plaintiffs’ trademarks. Defendants first argue that

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Krachmalnick’s testimony on this subject should be excluded as unreliable because it is
“fundamentally unsupported by facts.” Doc. 147 at 5. The Court disagrees.
“Only if the expert’s opinion is so fundamentally unsupported that it can offer no
assistance to the jury must such testimony be excluded.” First Union Nat. Bank, 423 F.3d at
862. As noted above, Krachmalnick relied on information provided by Order Dynamics in
completing his report. The parties do not dispute that Order Dynamics is the e-commerce vendor
that processes online sales orders for Admark. Steven Berkovitz, Order Dynamics’s Chief
Technology Officer, provided deposition testimony and data regarding online sales of
Defendants’ products. Included in the data provided by Berkovitz were orders of Defendants’
products based on customer searches for Plaintiffs’ product names. Doc. 148-5 at 27-29, 36-37.
Defendants do not dispute that Berkovitz provided this information or argue that Berkovitz’s
data is unreliable.
In reaching his conclusions regarding the amount of Defendants’ earnings derived from
allegedly infringing activities, Krachmalnick relied on two spreadsheets of data provided by
Berkovitz. Krachmalnick included this data with his report as Exhibits 6 and 7.
Notwithstanding Krachmalnick’s reliance on the Order Dynamics data, Defendants argue that
Krachmalnick’s conclusions are fundamentally unsupported because he did not rely on the
entirety of the dataset provided by Order Dynamics. Defendants have submitted portions of the
“complete dataset” received from Order Dynamics and represented that it comprises more than
51,000 pages. Doc. 148. During his deposition, Berkovitz authenticated two spreadsheets of
Order Dynamics data specifically pertaining to orders of Admark’s products. Doc. 148-5 at 1520. Plaintiffs represent, and Defendants apparently do not dispute, that Exhibit 6 to
Krachmalnick’s report is derived directly from the spreadsheets authenticated by Berkovitz at his

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deposition. Doc. 185 at 3. To the extent Defendants argue that anything in the “complete
dataset” contradicts Krachmalnick’s conclusions, the Court finds this goes to the weight rather
than the admissibility of his testimony. Defendants will have opportunity to cross-examine
Krachmalnick on this basis.
Defendants raise a separate objection to Krachmalnick’s reliance on Exhibit 7. Plaintiffs
acknowledge that Krachmalnick derived Exhibit 7 from data Berkovitz provided to Plaintiff’s
counsel after Berkovitz’s deposition, and that this data was not disclosed to Defendants until
Plaintiffs produced it, as Exhibit 7, along with Krachmalnick’s report. Doc. 183 at 7-8.
Defendants thus move to strike Exhibit 7 from the report along with any conclusions
Krachmalnick derived from it, arguing that Plaintiffs’ nondisclosure of communications with
Berkowitz after his deposition (including the data incorporated into Exhibit 7) prejudiced
Defendants. Doc. 167 at 6. Defendants cite no authority holding that a party must separately
disclose an expert’s reliance materials before disclosure of, rather than contemporaneously with,
the expert’s report. Defendants concede that Plaintiffs disclosed all materials Krachmalnick
relied upon when they produced his report, and Defendants do not articulate anything other than
a conclusory assertion of prejudice. The Court finds that Exhibit 7 is substantively identical to
the data provided to Plaintiffs’ counsel by Berkovitz after his deposition. Compare Doc. 183-1
with Doc. 183-3. Defendants’ alleged failure to produce communications between Berkovitz and
Plaintiffs’ counsel might justify a motion to compel (though Defendants did not file one).
However, because Plaintiffs produced Exhibit 7 with Krachmalnick’s report, and Defendants
could have earlier subpoenaed information from non-party Berkovitz themselves, Defendants fail
to demonstrate a basis to strike Exhibit 7.

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Defendants next argue that Krachmalnick’s testimony should be excluded because his
methodology was unreliable. Specifically, Defendants assert that Krachmalnick improperly
quantified some entries in the data as “sales” when they were actually uncompleted orders. At
his deposition, Krachmalnick admitted that he included in his quantification of sales certain data
entries actually representing canceled or failed orders. Doc. 149-1 at 85:16-86:1. Plaintiffs assert
that the number of improperly included entries is de minimis, and thus argue this objection goes
to the weight rather than the admissibility of Krachmalnick’s testimony. The Court agrees.
Upon review of Exhibits 6 and 7 to Krachmalnick’s report, the Court finds that the vast majority
of entries represent completed and shipped orders. See Docs. 183-2, 183-3. Further, Defendants
will have opportunity at trial to cross-examine Krachmalnick about this apparently-admitted flaw
in his calculation. The jury can decide what weight (if any) to give his resultant conclusions.
Finally, Defendants argue that Krachmalnick’s testimony must be excluded as “the mere
extension of counsel’s unproven assumptions.” Doc. 147 at 13. Defendants make essentially the
same argument multiple times and in different ways, but their objection boils down to this:
Krachmalnick did not independently verify that any of the data included in Exhibits 6 and 7
actually related to Plaintiffs’ trademarks or to any infringing activity by Defendants. Plaintiffs
respond that they retained Krachmalnick solely to provide a quantification of damages, not to
opine on liability or causation. Doc. 155 at 13-14.
Federal Rule of Evidence 703 permits an expert to base his opinion on any data “that the
expert has been made aware of” provided the data is of a type “experts in the particular field
would reasonably rely on.” Fed. R. Evid. 703. Defendants implicitly concede that the data
Krachmalnick relied on here, i.e., lists of sales orders and prices, is of a type reasonably relied
upon by accounting experts. Instead, Defendants argue that Krachmalnick’s conclusions lack

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“factual foundation” because their relevance in this case depends on unproven assumptions.
Doc. 147 at 13-14.
The Court finds that Defendants’ criticism goes to the foundation of Krachmalnick’s
testimony, rather than the admissibility factors under Federal Rule of Evidence 702. See Steak N
Shake Inc. v. White, No. 4:18-CV-00072-SRC, 2020 WL 85172, at *7 (E.D. Mo. Jan. 7, 2020);
see also Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 955 (8th Cir. 2000). Unless Plaintiffs
lay the proper foundation showing that the data entries in Exhibits 6 and 7 are actually traceable
to Plaintiffs’ marks and Defendants’ allegedly infringing activity, the Court may ultimately
determine that Krachmalnick’s quantification of sales is not relevant to any fact at issue. But the
rules of evidence do not require an expert witness to provide the foundation for his own
testimony. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The
court may admit the proposed evidence on the condition that the proof be introduced later.”).
Thus, final resolution of this issue will depend on evidence adduced at trial. For now, the Court
finds that Krachmalnick’s testimony is based on sufficient facts and reliable methodology, and
thus denies Defendants’ motion to exclude his testimony. Fed. R. Evid. 702(b)-(d).
III.

Motion to strike exhibits
A.

Standard

“The power of the trial court to exclude exhibits and witnesses not disclosed in
compliance with its discovery and pretrial orders is essential to the judge’s control over the
case.” Sellers v. Mineta, 350 F.3d 706, 711 (8th Cir. 2003). “If a party fails to disclose
information or identify a witness as required by Rule 26(a) or (e), the party shall not be permitted
to use [the nondisclosed information as] evidence on a motion, at a hearing, or at trial unless the

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failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Failure to disclose in
a timely manner is equivalent to failure to disclose. Trost v. Trek Bicycle Corp., 162 F.3d 1004,
1008 (8th Cir. 1998). “The rules thus permit a court to exclude untimely evidence unless the
failure to disclose was either harmless or substantially justified.” Id.
B.

Analysis

Defendants move to strike a number of exhibits Plaintiffs offer in opposition to
Defendants’ summary judgment motion, alleging that the exhibits were not previously produced.
Doc. 170. The parties’ briefing on this motion is not a model of clarity. Defendants’ initially
moved to strike 53 exhibits, but in their reply brief withdraw their motion to strike all but 26
exhibits, admitting that the others were, in fact, produced. Doc. 178. In an affidavit supporting
Plaintiffs’ opposition brief, Plaintiffs’ counsel offers Bates numbers at which many of the
disputed exhibits were allegedly produced, but in sur-reply Plaintiffs acknowledge that many of
those Bates numbers were wrong. Doc. 184. Further, Plaintiffs’ counsel simultaneously
represents that certain exhibits were made available to Defendants during depositions while also
stating that the same exhibits were not available during the depositions because they were not
created until after the close of discovery. Doc. 175-1 at ¶¶ 6-7. Against this muddled backdrop,
the Court will sort through the motion.
Defendants maintain their motion to strike 26 of Plaintiffs’ exhibits. Doc. 178 at 4. The
disputed exhibits fall into two categories. The first category consists of exhibits that Plaintiffs
admit they did not produce during discovery because they were not created until after the close
of discovery. The second category consists of exhibits that Defendants allege Plaintiffs did not
produce during discovery but Plaintiffs claim they did produce.

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As to the first category, Plaintiffs argue that these exhibits—which wholly consist of
screenshots of websites and internet search results—were created after the close of discovery for
the limited purpose of showing that Defendants’ allegedly infringing behavior is continuing.
Thus, Plaintiffs argue that their failure to disclose was “substantially justified.” Fed. R. Civ. P.
37(c)(1). Further, Plaintiffs argue that these internet screenshots were equally available to
Defendants so any failure to disclose was harmless. Id. In S.L. ex rel. Lenderman v. St. Louis
Metro. Police Dep't Bd. of Comm'rs, No. 4:10-CV-2163 CEJ, 2012 WL 3564030, at *9 (E.D.
Mo. Aug. 17, 2012), this Court found that the plaintiff’s failure to previously disclose exhibits
offered in opposition to summary judgment was substantially justified and harmless under Rule
37(c)(1). Id. at *9 n.8. The exhibits consisted of 120 pages of newspaper articles. Id. Because
the exhibits were gathered by plaintiff for the purpose of responding to arguments in defendants’
summary judgment motions, and because the newspaper articles were equally available to
defendants, the Court held that the nondisclosure was both substantially justified and harmless.
Id. The Court finds the same principles applicable here, and thus denies Defendants’ motion to
strike Exhibits 159-1, 159-2, 159-4, 159-74 to 159-77, 159-79 to 159-82, and 159-89 to 159-83.
The remaining category of exhibits Defendants move to strike are documents that
Defendants claim were not produced in discovery and Plaintiffs assert were, in fact, produced.
Based on the unrefuted affidavits of Plaintiffs’ counsel (Docs. 175-1, 184-1), the Court finds that
the following exhibits were produced: 159-6, 159-24, 159-19 1, 159-27, 159-33, and 159-46.
Thus, the Court denies Defendants’ motion to strike these exhibits.
Plaintiffs fail to show that Exhibits 159-29, 159-85 to 159-88, or 159-97 were included in
their production to Defendants. Plaintiffs represent that they previously produced Exhibit 159-

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Produced at Nutreance 168. Doc. 175-9.

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29 as Nutreance 790. But Nutreance 790 is actually a different (albeit somewhat similar)
document. And, Plaintiffs represent that they previously produced 159-85 to 159-88 and 159-97
in a production containing Koech 151-250. But the production submitted to the Court labeled
“Koech 151-250” actually contains only Koech 151-200. These disputed exhibits accordingly
are not part of the production submitted to the Court.
The Court thus considers Plaintiffs alternative argument that all of the exhibits numbered
159-1 to 159-90 were made available to Defendants’ counsel “before, during, and after the
discovery depositions of Defendants Danny O’Shea and Brendan O’Shea (well before the
discovery deadline).” Doc. 175-1 at 4. Defendants do not dispute that these documents were
made available for the depositions. Instead, Defendants argue that offering materials in
conjunction with a deposition is not an adequate supplementation under Rule 26(e) because
Plaintiffs did not indicate that any of the materials offered “were relevant to a particular
Defendant request for production.” Doc. 178 at 5.
The only request for production Defendants claim any of the disputed exhibits was
responsive to is a generic request for “all documents” Plaintiffs rely onto support their claims.
Id. at 5. Rule 34(b)(2)(E) requires litigants to produce electronically stored information “in a
reasonably usable form.” Defendants do not claim Plaintiffs offered the documents in an
unusable form. On these facts, the method of production complies with Rule 34(b)(2)(E) and the
Court denies the motion to strike Exhibits 159-29, 159-85 to 159-88.
Plaintiffs fail to show that they produced Exhibit 159-97 at any time. Plaintiffs offer no
argument that this nondisclosure was substantially justified or harmless. Accordingly, the Court
grants Defendants’ motion to strike Exhibit 159-97 only. Fed. R. Civ. P. 37(c)(1).

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IV.

Motion for summary judgment
A.

Standard

Summary judgment is proper if the evidence, viewed in the light most favorable to the
nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Cordry v. Vanderbilt Mortg. &
Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006) (quoting Bockelman v. MCI Worldcom, Inc., 403
F.3d 528, 531 (8th Cir. 2005)). The proponent of a motion for summary judgment “bears the
initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324–
25.
In response to the proponent's showing, the opponent must “come forward with ‘specific
facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). A “genuine” dispute of
material fact is more than “some metaphysical doubt as to the material facts.” Id. at 586.
“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “If the evidence is merely colorable...or is not significantly probative...summary
judgment may be granted.” Id. at 249–50 (citations omitted).

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B.

Analysis

Defendants move for summary judgment on all counts of Plaintiffs’ Complaint.
Defendants first argue for summary judgment on the grounds that no named defendant was
actually involved in the allegedly infringing activity described in the Complaint. Defendants
argue that Plaintiffs have “sued the wrong parties”—because independent third-parties, the
Review Hosts, created and maintained the Review Websites without input or control from any
defendant. Doc. 141 at 1.
Plaintiffs offer no evidence that Defendants Primark, LLC, Wastena Holdings, LLC, or
iHealth Fulfillment Services Limited Liability Company were involved in any activity alleged in
the Complaint (see Doc. 142 at ¶ 65; Doc. 154 at 23), and offer no argument in opposition to
Defendants’ motion for summary judgment as to these entities. Accordingly, the Court grants
summary judgment as to Defendants Primark, LLC, Wastena Holdings, LLC, and iHealth
Fulfillment Services Limited Liability Company.
Conversely, Plaintiffs have offered substantial evidence that Defendants Admark, LLC,
Brendan O’Shea, and Danny O’Shea participated in the allegedly infringing activities. Plaintiffs
offer the affidavit of Teresa Dowdell, a former business partner of Brendan and Danny O’Shea.
Doc. 154-1. Dowdell avers that Brendan and Danny O’Shea exercised considerable if not
complete control over the content on the Review Websites. Dowdell describes a scheme
orchestrated by the O’Sheas, in partnership with Rizwan and Khanbahadur of the Review Hosts,
to publish sham and disparaging reviews of competitors’ products, while giving “top choice”
ranking to the products sold by the O’Sheas and Admark, all under the guise of editorial
independence.

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Defendants argue that because Dowdell never worked for Admark, LLC and because her
partnership with Danny and Brendan O’Shea ended in 2014, she cannot have personal
knowledge of the specific infringement alleged in this case, which allegedly began in 2017.
Dowdell partnered with the O’Sheas for approximately 12 years as a member of two entities,
Nutrazone LLC and Syntegy LLC. Dowdell avers that the O’Sheas began working with Rizwan
and Khanbahadur to market products sold by Nutrazone and later continued that joint venture to
market Syntegy products. Further, Dowdell avers personal knowledge that the O’Sheas
continued this joint venture to market Admark products. The scheme she describes, as set forth
above, mirrors closely the specific allegations of infringing activity in Plaintiffs’ Complaint.
Viewing Dowdell’s testimony in the light most favorable to Plaintiffs, a jury could reasonably
infer that the O’Sheas and Admark continued to exercise control over the Review Websites’
content after Dowdell’s partnership with the O’Sheas ended.
Defendants also move for summary judgment on behalf of individual defendant Eileen
Olympia O’Shea, the wife of Danny O’Shea. Plaintiffs acknowledge that their only evidence
connecting Olympia O’Shea to any activity alleged in the Complaint is one sentence in
Dowdell’s affidavit. Doc. 179 at 1-2. Dowdell states that Olympia O’Shea “was an
owner/member of either Admark, LLC or Primark, LLC or another corporate entity,” “made
contributions to the various businesses owned by her husband,” and “was aware of” Danny and
Brendan’s scheme with Rizwan, Khanbahadur, and the Review Hosts. Doc. 154-1 at ¶ 27.
The Court finds this evidence insufficient to support liability. First, Dowdell is equivocal
about Olympia’s relationship to Admark. The Court has already dismissed Primark and the other
remaining entity defendants, so any relationship with those entities is irrelevant. Second, even if
Olympia was a member of Admark, Plaintiffs offer no evidence or argument showing why she

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should be individually liable for the actions of the entity. Finally, Plaintiffs fail to establish why
mere “awareness” of infringing activity by others is sufficient to establish personal liability.
Thus, the Court grants Defendants’ motion for summary judgment as to Olympia O’Shea. The
Court now turns to Defendants’ arguments for summary judgment as to the specific claims in
Plaintiffs’ Complaint.
1.

Count I – trademark infringement

Count I alleges trademark infringement in violation of Section 32 of the Lanham Act, 15
U.S.C. §1114. Section 32 protects the holder of a federally registered trademark from the
unauthorized
use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation
of a registered mark in connection with the sale, offering for sale, distribution, or
advertising of any goods or services on or in connection with which such use is
likely to cause confusion, or to cause mistake, or to deceive[.]
15 U.S.C. §1114(1)(a).
At the time Plaintiffs filed their Complaint, only Plaintiff Koech Corp. was the registrant
of a federally-registered trademark, for MACAFEM. After filing, Plaintiff Nutreance registered
the trademarks REDIMOVE, REDICALM, REDIMIND, and REDINITE. Docs. 159-79 to 15982. Section 32 grants standing to assert a claim for trademark infringement only to
the registrant of a trademark. 15 U.S.C. § 1141(1); Kia Motors Am., Inc. v. Autoworks Distrib.,
No. CIV. 06-156 DWF/JJG, 2007 WL 4372954, at *2 (D. Minn. Dec. 7, 2007); Zetor N. Am.,
Inc. v. Rozeboom, No. 3:15-CV-03035, 2018 WL 3865411, at *5 (W.D. Ark. Aug. 14, 2018).
Accordingly, Nutreance may only bring a claim under 15 U.S.C. § 1141(1) to the extent it claims
Defendants infringed its marks at a time after their registration. John Beal, Inc. v. Roofpros, Inc.,
No. 4:16 CV 1151 CDP, 2016 WL 7439214, at *2 (E.D. Mo. Dec. 27, 2016).

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“[T]he ‘core element’ of trademark infringement law is ‘whether an alleged trademark
infringer’s use of a mark creates a likelihood that the consuming public will be confused as to
who makes what product.’” Davis v. Walt Disney Co., 430 F.3d 901, 905 (8th Cir. 2005)
(quoting Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir. 2003)). Defendants argue
Plaintiffs have offered no evidence showing the likelihood of confusion as to the source of
Defendants’ or Plaintiffs’ products. In response, Plaintiffs do not contend that they have shown
source confusion, but argue only that they have shown a likelihood of confusion as to
“affiliation, connection, or association” sufficient to support a claim under 15 U.S.C.
§1125(a)(1)(A). But Count I does not assert a claim under that section (Count III, addressed
below, does). Thus, Plaintiffs have abandoned their claim for infringement under 15 U.S.C.
§1114(1), and cannot amend their Complaint via a brief. Morgan Distrib. Co., Inc. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (“axiomatic” that complaint may not be
amended by brief); see also WireCo WorldGroup, Inc. v. Liberty Mut. Fire Ins. Co., 231 F. Supp.
3d 313, 318 (W.D. Mo. 2017). Accordingly, the Court grants Defendants’ motion for summary
judgment on Count I.
2.

Count II – false advertising

Section 43(a) of the Lanham Act provides:
(1)
Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or device,
or any combination thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which-(A) is likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person's
goods, services, or commercial activities,
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shall be liable in a civil action by any person who believes that he or she is or is
likely to be damaged by such act.
15 U.S.C. § 1125(a). “Section 1125(a) thus creates two distinct bases of liability: false
association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark Int'l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 122 (2014). Unlike a trademark infringement
claim under 15 U.S.C. §1114(1), the protections of 15 U.S.C. §1125(a) are not limited to
registered trademarks. B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 144–45
(2015).
In Count II, Plaintiffs assert a claim for false advertising in violation of Section 43(a) of
the Lanham Act, 15 U.S.C. §1125(a)(1)(B). To succeed on this claim, Plaintiffs must show: (1)
Defendants made false statements of fact about their own or another’s products; (2) the
statements actually deceived or had the tendency to deceive a substantial portion of the audience;
(3) the deception was material; (4) Defendants caused the false statements to enter interstate
commerce; and (5) Plaintiffs have been or are likely to be injured because of Defendants’ false
statements. Process Controls Int'l, Inc. v. Emerson Process Mgmt., 753 F. Supp. 2d 912, 929
(E.D. Mo. 2010) (citing Allsup, Inc. v. Advantage 2000 Consultants Inc., 428 F.3d 1135, 1138
(8th Cir. 2005)). A statement is considered false under this section even if it is “literally true or
ambiguous,” but nonetheless “renders a ‘false impression’ when viewed in context.” Allsup,
Inc., 428 F.3d at 1138. Further, while literal falsity may be determined as a matter of law,
whether a statement is misleading is an issue of fact. Id
The Court finds Plaintiffs have offered sufficient evidence of each element of false
advertising to withstand Defendants’ motion for summary judgment. Plaintiffs offer evidence,
including Dowdell’s affidavit, showing that Defendants exercised considerable or complete
control over the content on the Review Websites. Plaintiffs also offer evidence that the Review
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Websites published false representations of independence and lack of bias. Further, Plaintiffs
offer evidence that the Review Websites’ reviews of their products included literally false
statements, including the false representation that no clinical studies were done on any of
Plaintiffs’ products. Docs. 154-2, 154-3, 154-4. Those statements entered interstate commerce
via their publication on the internet. United States v. Giboney, 863 F.3d 1022, 1026 (8th Cir.
2017).
Defendants argue that Plaintiffs have failed to show that a substantial portion of the
audience was actually deceived or a likelihood of such deception. However, with a literally false
claim, “a court may grant relief without considering whether the buying public was actually
misled; actual consumer confusion need not be proved.” United Indus. Corp. v. Clorox Co., 140
F.3d 1175, 1180 (8th Cir. 1998). Here, Plaintiffs offer evidence that the Review Hosts published
literally false claims about their products, including the false representation that no clinical
studies were done on the products. Plaintiffs accordingly satisfy the element of audience
deception for purposes of summary judgment.
As to materiality, in addition to false statements in the reviews of Plaintiffs’ products,
Plaintiffs offer evidence that Defendants, through the Review Hosts, published sham reviews,
purporting to be unbiased, that consistently ranked Plaintiffs’ products as inferior to Defendants’
competing products. Doc. 154-1. A jury could reasonably conclude these were material
falsehoods. Regarding injury, Plaintiffs offer evidence, in the form of affidavits from principal
members of the Plaintiff entities, that each Plaintiff suffered quantifiable losses as a result of
Defendants’ disparagement of their products. Docs. 154-2, 154-3, 154-4. Plaintiffs also offer
Krachmalnick’s expert testimony to quantify Defendants’ unjust enrichment. Plaintiffs have

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presented enough evidence to create a genuine issue of fact as to each element of false
advertising. The court denies Defendants’ motion for summary judgment on Count II.
3.

Count III – federal unfair competition

In Count III, Plaintiffs assert a claim for “federal unfair competition,” citing 15 U.S.C.
§1125(a). While not entirely clear from the Complaint, Plaintiffs presumably intended to assert
in Count III a distinct false association claim under §1125(a)(1)(A) rather than an omnibus
§1125(a) claim that would in part duplicate the §1125(a)(1)(B) claim of Count II. The Court
analyzes Count III accordingly.
Section §1125(a)(1)(A) provides for civil liability for “[a]ny person who ... uses in
commerce any word, term, name, symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false or misleading
representation of fact, which is likely to cause confusion . . . as to the affiliation, connection, or
association of such person with another person, or as to the origin, sponsorship, or approval of
his or her goods, services, or commercial activities by another person.” 15 U.S.C.
§1125(a)(1)(A). The Supreme Court has characterized this section as the statutory tort of “false
association,” id., and described it as prohibiting trademark infringement of unregistered marks.
B & B Hardware, Inc., 575 U.S. at 144–45 (2015).
Section 1125(a)(1)(A) expressly prohibits misleading representations “as to the
affiliation, connection, or association” of the defendant with another person. 15 U.S.C.
§1125(a)(1)(A). “The question of trademark infringement, and of unfair competition, is whether
there is a likelihood of confusion.” Phoenix Entm't Partners, LLC v. Ryco Enterprises, LLC, 306
F. Supp. 3d 1121, 1127 (E.D. Mo. 2018). Likelihood of confusion is a finding of fact. SquirtCo.
v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1980). But this does not mean that likelihood of

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confusion may never be determined on summary judgment. Warner Bros. Entm't v. X One X
Prods., 840 F.3d 971, 980 (8th Cir. 2016).
The Eighth Circuit set forth non-exclusive factors to be considered in weighing likelihood
of confusion: (1) the strength of the trademark; (2) the similarity between the plaintiff’s and
defendant’s marks; (3) the competitive proximity of the parties’ products; (4) the alleged
infringer’s intent to confuse the public; (5) evidence of any actual confusion; and (6) the degree
of care reasonably expected of the plaintiff’s potential customers. Anheuser-Busch, Inc. v.
Balducci Publications, 28 F.3d 769, 774 (8th Cir. 1994) (citing SquirtCo, 628 F.2d at 1091)).
“No one factor controls, and because the inquiry is inherently case-specific, different factors may
be entitled to more weight in different cases.” Kemp v. Bumble Bee Seafoods, Inc., 398 F.3d
1049, 1053 (8th Cir. 2005).
The Court finds Plaintiffs have offered evidence from which a jury could reasonably find
likelihood of confusion regarding, at least, “the affiliation, connection, or association” of
Defendants with the Review Hosts and Plaintiffs’ trademarks. 15 U.S.C. §1125(a)(1)(A). In
making this determination, the Court gives significant weight to Plaintiffs’ evidence that
Defendants Admark and Brendan and Danny O’Shea deliberately concealed—and in fact
materially misrepresented—their affiliation with the Review Hosts and the Review Websites.
Further, Plaintiffs offer evidence that Defendants used Plaintiffs’ marks as paid search terms on
internet search engines to steer customers to the sham review pages hosted by the Review Hosts
and, in turn, to Defendants’ competing products. Docs. 154-1, 154-2, 154-3, 154-4. Defendants’
products directly compete with Plaintiffs’ products in the nutritional supplement marketplace.
From these facts, a jury could reasonably find likelihood of confusion. The Court thus denies
Defendants’ motion for summary judgment on Count III.

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4.

Count IV – common law unfair competition

“‘Missouri law is well settled that the same facts which support a suit for trademark
infringement [under § 43(a) of the Lanham Act] support a suit for unfair competition and
common law infringement.’ Conversely, the same allegations that fail to support a claim of
unfair competition under § 43(a) of the Lanham Act fail to support a claim of common law
unfair competition.” Phoenix Entm't Partners, LLC v. Sports Legends, LLC, 306 F. Supp. 3d
1112, 1119–20 (E.D. Mo. 2018) (quoting Cmty. of Christ Copyright Corp. v. Devon Park
Restoration Branch of Jesus Christ's Church, 634 F.3d 1005, 1010 (8th Cir. 2011)). The Court
has already determined that Plaintiffs present a submissible case for “false association” or
trademark infringement under Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a)(1)(A).
Accordingly, Plaintiffs claim for common law unfair competition also withstands summary
judgment.
5.

Count V – commercial disparagement

In Count V, Plaintiffs assert a Missouri common law claim for commercial
disparagement. Missouri law provides that
One who publishes a false statement harmful to the interests of another is subject
to liability for pecuniary loss resulting to the other if (a) he intends for publication
of the statement to result in harm to interest of the other having a pecuniary value,
or either recognizes or should recognize that it is likely to do so, and (b) he knows
that the statement is false or acts in reckless disregard of its truth or falsity.
Cuba's United Ready Mix, Inc. v. Bock Concrete Foundations, Inc., 785 S.W.2d 649, 651 (Mo.
Ct. App. 1990); see also Renaissance Learning, Inc. v. Metiri Grp., LLC, No. 07-0413-CV-WSWH, 2009 WL 3426677, at *2 (W.D. Mo. Oct. 23, 2009).
Defendants argue that Plaintiffs have not established any false statement, have not shown
intent to harm Defendants, and have offered no evidence of pecuniary loss. The Court has

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already addressed Plaintiffs’ evidence of falsehood with respect to Counts II and III above. With
respect to harmful intent, Dowdell’s affidavit states that
Danny and Brendan O’Shea were fully aware that their profits from the 21 Century
review websites were directing profits away from the competitor products, knew
that they were lowering the market share of competing products by disparaging
them and falsely claiming the competitor product was inferior, and their intent was
to profit by disparaging and undermining the marketing efforts and visibility of
competing products.
Doc. 154-1 at ¶ 37. A jury crediting Dowdell’s testimony could reasonably infer that Defendants
acted with intent to harm Plaintiffs’ interests. Finally, as noted above, Plaintiffs offer evidence,
in the form of affidavits from principal members of the Plaintiff entities, that each Plaintiff
suffered quantifiable losses as a result of Defendants’ disparagement of their products. 2 Docs.
154-2, 154-3, 154-4. Accordingly, the Court denies Defendants’ motion for summary judgment
as to Count V.
6.

Count VI - defamation

In Count VI, Plaintiffs assert a claim for defamation. To prevail on a defamation claim, a
plaintiff must prove (1) publication, (2) of a defamatory statement, (3) that identifies the
plaintiff, (4) that is false, 5) that is published with the requisite degree of fault, and 6) damages
the plaintiff's reputation. Smith v. Humane Soc'y of United States, 519 S.W.3d 789, 798 (Mo.
2017). “The issue of falsity relates to the defamatory facts implied by a statement—in other
words, whether the underlying statement about the plaintiff is demonstrably false.” Overcast v.
Billings Mut. Ins. Co., 11 S.W.3d 62, 73 (Mo. 2000). Defendants move for summary judgment,
arguing that Plaintiffs have not established any element of defamation.

2

Because Plaintiffs’ have voluntarily dismissed their claim for lost profits [Doc. 68], they must prove at trial that
they suffered “pecuniary loss” distinct from lost profits.

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The Court finds Plaintiffs have presented evidence sufficient to create a genuine issue of
fact on each defamation element. Plaintiffs offer evidence that Defendants exercised
considerable or total control over the Review Hosts, including control over the reviews on the
Review Websites. Plaintiffs offer evidence that the reviews of Plaintiffs’ products included
literally false statements, including the false representation that no clinical studies were done on
the products. A statement is defamatory if it “casts aspersions on [a] person’s reputation so as to
lower him in the estimation of the community or to deter third person’s from associating with
him.” Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996). A reasonable jury could
conclude Defendants’ false statements defamed Plaintiffs. As to fault, Dowdell avers that
Defendants “were fully aware that they were lowering the market share of competing products
by disparaging them and falsely claiming the competitor [sic] product was inferior.” Doc. 154-1
at ¶ 37. Finally, each Plaintiff offers evidence that the Review Websites’ sham reviews
negatively impacted customers’ perceptions of Plaintiffs’ products and thus their reputations.
Docs. 154-1, 154-2, 154-3, 154-4. Viewing the evidence in the light most favorable to Plaintiffs,
a reasonable jury could find each elements of defamation. The Court denies Defendants’ motion
for summary judgment on Count VI.
7.

Count VII – tortious interference

Plaintiffs’ final claim is for tortious interference. Missouri common law recognizes
tortious interference claims based on either a contract or a valid business expectancy. See Cook
v. MFA Livestock Ass'n, 700 S.W.2d 526, 529 (Mo. Ct. App. 1985). To prevail on a claim of
tortious interference, Plaintiffs must prove: (1) a contract or valid business expectancy; (2)
Defendants’ knowledge of the contract or relationship; (3) Defendants’ intentional interference
causing a breach of the contract or relationship; (4) absence of justification for Defendants’

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interference; and (5) Plaintiffs’ damages resulting from Defendants’ conduct. Process Controls
Int'l, Inc., 753 F. Supp. 2d at 931 (citing Community Title Co. v. Roosevelt Fed. Sav. & Loan
Ass'n, 796 S.W.2d 369, 372 (Mo. 1990).
The parties’ briefing does not address whether a different evidentiary standard applies to
tortious interference claims based on business expectancy rather than contract. Based on its own
research, the Court finds Missouri courts have not articulated different standards. Whether based
on contract or business expectancy, “[l]iability under a tortious interference theory cannot be
predicated upon speculation, conjecture, or guesswork, and no fact essential to submissibility can
be inferred absent a substantial evidentiary basis.” Wash Solutions., Inc. v. PDQ Mfg., Inc., 395
F.3d 888, 896 (8th Cir. 2005) (business expectancy); A.L. Huber & Son, Inc. v. Jim Robertson
Plumbing, Inc., 760 S.W.2d 496, 499 (Mo. Ct. App. 1988) (contract).
Defendants argue that Plaintiffs have failed to show any valid business expectancy or that
Defendants knew of any such business expectancy. “For plaintiff to have a reasonable business
expectancy, there must be a probable future business relationship from which it anticipated
receiving financial benefits.” John Beal, Inc., 2016 WL 7439214, at *3 (citing Eib v.
Federal Reserve Bank of Kansas City, 633 S.W.2d 432, 435–36 (Mo. Ct. App. 1982)). Because
a reasonable business expectancy cannot be based on speculation or conjecture, “[t]he hope of
establishing a business relationship through prospective dealings with customers with whom
there has been no course of prior dealings does not constitute a reasonable business expectancy.”
Id.
The Court finds Plaintiffs have failed to create a genuine issue of fact regarding the
second element of tortious interference: Defendant’s knowledge of a reasonable business
expectancy. Plaintiffs’ evidence shows that the Review Websites’ sham reviews and product

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rankings confused and misled not only prospective customers, but Plaintiffs’ existing customers
as well. See, e.g., Doc. 154-2 at ¶ 28. However, Plaintiffs offer no evidence that Defendants
knew Plaintiffs had an existing relationship with these customers. Plaintiffs’ only evidence
regarding Defendants’ knowledge of “business expectancies” comes from Dowdell’s affidavit.
But Dowdell avers only that the Brendan and Danny O’Shea and Admark knew they were
interfering with Plaintiffs’ “prospective customers.” Doc. 154-1 at ¶¶ 42-43. “[A] mere assertion
of interference with prospective customers fails to raise a right to relief above the speculative
level.” John Beal, Inc., 2016 WL 7439214, at *3.
Because Plaintiffs offer no evidence showing Defendants had knowledge of their existing
business relationships, Plaintiffs fail to establish the second element and Plaintiffs’ claim fails.
Id. at *4; see also Boxes of St. Louis Inc. v. Davolt, No. 4:09CV922 RWS, 2010 WL 3118319, at
*2 (E.D. Mo. Aug. 5, 2010) (claim dismissed where plaintiff failed to allege that defendant had
any knowledge of existence of valid business relationship); Icard Stored Value Sols., L.L.C. v.
West Suburban Bank, No. 4:07–CV–1539 CAS, 2008 WL 619236, at *5 (E.D. Mo. Mar. 3,
2008) (claim of tortious interference with contract dismissed where plaintiff failed to allege that
defendant had knowledge of contract). Accordingly, the Court grants Defendants’ motion for
summary judgment on Count VII.
IV.

Plaintiffs’ motion to strike
Finally, the Court addresses Plaintiffs’ motion to strike certain portions of the declaration

of Jayson Sohi and related materials submitted in support of Defendants’ motion for summary
judgment. Doc. 157. First, Plaintiffs move to strike statements of Mr. Sohi that constitute mere
legal opinion. To the extent Sohi’s declaration contains inadmissible statements of legal opinion,
the Court has given them no weight in its consideration of Defendants’ motion for summary

28

judgment. Accordingly, the Court denies as moot Plaintiffs’ motion to strike statements from
Sohi’s declaration.
Second, Plaintiffs move to strike an uncertified transcript of a deposition of Olympia
O’Shea, submitted as an exhibit to Sohi’s declaration. Defendants’ sole purpose for offering this
transcript was to show that Ms. O’Shea has no affiliation with Admark, LLC. See Doc. 142 at ¶
33. All relevant facts in the deposition transcript are otherwise established by Ms. O’Shea’s
affidavit (Doc. 105-5), which Plaintiffs do not challenge. As detailed above, the Court grants
summary judgment for Ms. O’Shea because Plaintiffs have failed to offer any evidence of her
personal involvement in any infringing activity. Thus, the Court denies as moot Plaintiffs’
motion to strike the uncertified transcript.
Accordingly,
IT IS HEREBY ORDERED that [146] Defendants’ Motion to Exclude the Testimony
of Sanford Krachmalnick is DENIED.
IT IS FURTHER ORDERED that [170] Defendants’ Motion to Strike Exhibits is
GRANTED in part and DENIED in part, as set forth in detail above.
IT IS FURTHER ORDERED that [140] Defendant’s Motion for Summary Judgment is
GRANTED in part and DENIED in part, as set forth in detail above.
IT IS FINALLY ORDERED that [157] Plaintiffs’ Motion to Strike Portions of the
Declaration of Jayson Sohi is DENIED, as moot.

So Ordered this 10th day of July, 2020.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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