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PepsiCo Accused of Stealing Rise Name Now Discovery Disputes So Joint Letter by March 25

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, March 17 – Grant Gyesky and two others founded Rise Brewing in New York in 2014, first sold its caffeinated organic beverage in Brooklyn and are now suing PepsiCo for its Mountain Dew "Rise" product.      

  On October 8, 2021 U.S. District Court for the Southern District of New York Judge Lorna G. Schofield held a proceeding. Inner City Press covered it. 

 Gyesky testified that after he met with PepsiCo, the name was stolen and the Mountain Dew copycat was launched.

On cross examination, he could not name the address or attendees, other than one, at the meeting. And Pepsi's lawyer focused on other Rise-named products, and a different position in North Carolina litigation.  

 Midwest sales agents of Rise took the stand, describing being muscled or misled out of Kroger supermarkets in Illinois and Kentucky. It smacks of a David and Goliath story.

  In November, after Inner City Press reported the above on October 9, others reported the stay: "AMENDED OPINION AND ORDER: Having considered the parties' written submissions and the evidence and argument presented at the September 9, 2021, oral argument and October 8, 2021, evidentiary hearing, for the foregoing reasons, the Court GRANTS Plaintiff's motion for a preliminary injunction.

500 Pearl SDNY

  Pepsi, in Goliath form, appealed - and got a stay of the stay, at least until a three judge panel can hear it: "The Court grants an administrative stay of the preliminary injunction until it can be considered by the next available three-judge motions panel. In granting this administrative stay, the Court intimates no view on the merits of the stay motion or the preliminary injunction order.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit."

In December, Pepsico informed Judge Schofield they have renamed the product MTN DEW ENERGY, informing retailers of this on November 8.  They acknowledge that some MTN DEW RISE ENERGY products are still on sale; they say these are the property of the retailers.

  The parties on December 16 told Judge Schofield they have agreed to limit the total number of interrogatories to 25.

On March 17, Magistrate Judge Sarah L. Cave held a discovery conference and Inner City Press covered it. Judge Cave gave some extensions but said she would not be amenable to more. She ordered:  For all depositions, the parties shall meet and confer to agree on start and end times that reasonably accommodate the witnesses' personal and work schedules; 3. By March 25, 2022, the parties shall file a joint letter (i) confirming that all remaining fact witness depositions have been scheduled; and (ii) advising whether there are any disputes regarding the topics for either party's Fed. R. Civ. P. 30(b)(6) witness(es) as to which the parties seek the Court's ruling, and, if so, attaching the topics to the joint letter; 4. The depositions of non-parties Steven Salzinger and Hudson Gaines-Ross shall count toward Defendant's limit of fourteen depositions, and Plaintiff has foregone the right to question those witnesses at their depositions; 5. The deadline to complete document discovery, apart from specific post-deposition requests for production, if necessary, remains April 29, 2022; 6. All fact witness depositions shall be completed by May 13, 2022; 7. All expert discovery shall be completed by June 27, 2022.

The case is Riseandshine Corporation v. Pepsico, Inc., 21-cv-6324 (Schofield / Cave) 


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