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PepsiCo Accused of Stealing Rise Name Now Daubert Letter Under Seal Pending Trial or SJ

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

SDNY COURTHOUSE, Oct 24 – 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.'

Jump cut to October 24, 2022, when Judge Schofield " ORDERED that the parties' motion to file the Daubert Letter under seal is GRANTED. It is further ORDERED that Plaintiff's motion to file its response to the Daubert Letter under seal is DENIED, without prejudice to refile. Plaintiff's response shall remain under seal at this time. Any renewed motion to file under seal shall be made by October 28, 2022. The parties are reminded that this Order covers only the redaction of information submitted in the Daubert Letter. That information may be filed under seal in connection with the Daubert Letter does not mean it may be filed under seal in connection with Defendant's motion for summary judgment or at trial. See Maxwell, 929 F.3d at 53 ("Materials submitted in connection with a motion for summary judgment are subject to a strong presumption of public access."); Amodeo, 71 F.3d at 1049 ("[T]he public has an especially strong right of access to evidence introduced in trials."). (Signed by Judge Lorna G. Schofield on 10/24/2022)."

500 Pearl SDNY

  Previously, 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 May 6, 2022 Magistrate Judge Sarah L. Cave held another lengthy discovery conference and Inner City Press covered it. Judge Cave ruled, "ORDER: Having reviewed the parties' submissions, and having heard the parties' arguments during the lengthy discovery conference held today, May 6, 2022, the Court orders as follows: Pepsi's request for an order compelling RiseandShine "to produce documents responsive to these RFPs, or if it is unable to locate responsive documents, to file written responses stating that no documents exist and outlining steps taken to attempt to locate them" is DENIED WITHOUT PREJUDICE. RiseandShine shall promptly identify ten withheld third-party communications concerning the use of "Rise" as to which it believes Fed. R. Evid. 408 may apply (the "Rule 408 Exemplars"). As discussed at the conference, the Rule 408 Exemplars shall include communications with "Rise Up," if any exist. The Court will conduct an in camera review of the Rule 408 Exemplars to determine relevance and the applicability of Rule 408. RiseandShine's request for an order compelling Pepsi to produce documents and information responsive to its requests regarding Starbucks Nitro is DENIED WITHOUT PREJUDICE, pending the resolution of Pepsi's objections to this Court's Order dated April 14, 2022 (ECF No. 221) and Starbucks' motion to intervene."

On May 31, on the eve of Second Circuit arguments, there was a discovery proceeding before Magistrate Judge Cave that Inner City Press covered and after which, this: "ORDER: Having reviewed the parties' additional submissions (ECF Nos. 282, 285), and having heard further arguments from the parties during a nearly two-hour discovery conference held today, May 31, 2022, the Court orders as follows: Pepsis request for an order compelling RiseandShine to produce third-party communications on the use of "Rise" that RiseandShine withheld as irrelevant under Fed. R. Evid. 408 (ECF No. 223 at 2) is GRANTED IN PART to the extent that RiseandShine shall promptly produce the July 11, 2019 and October 16, 2019 letters sent by counsel for RiseandShine to counsel for Rise Biscuits Donuts LLC, and otherwise DENIED."

On June 29, Judge Cave held another discovery hearing, and Inner City Press again covered it. Afterward, this order: "ORDER granting in part and denying in part [300] Letter Motion for Discovery; granting in part and denying in part [301] Letter Motion for Discovery.Having reviewed the parties' submissions, and having heard the parties' arguments during the discovery conference held today, June 29, 2022, the Court orders as follows: RiseandShine's Request is DENIED without prejudice to renewal following the close of discovery. See, e.g., On Track Innovations Ltd. v. T-Mobile USA, Inc., 106 F. Supp. 3d 369, 414 (S.D.N.Y. 2015) (deferring until trial request to preclude cumulative expert testimony); Ross Univ. Sch. of Med., Ltd. v. Brooklyn-Queens Health Care, Inc., No. 09-CV-1410 (KAM), 2012 WL 6091570, at *7 (E.D.N.Y. Dec. 7, 2012) (noting that "where, as here, no trial date has been set, preclusion [of experts as cumulative] is premature"). Pepsi's Request is GRANTED IN PART and DENIED IN PART as follows: RiseandShine shall promptly: Search Grant Gyesky's emails for communications involving the seven investors or potential investors (the "Investors") that Mr. Gyesky referenced during his deposition, and produce all communications regarding the Investors' reasons for investing or not investing in RiseandShine; and further set forth in this Order. The parties shall promptly meet and confer regarding (i) a proposed extension of the expert discovery schedule, and (ii) whether they can agree to resolve, without the need for Court intervention, RiseandShine's motion to strike portions of the supplemental expert report of Thomas W. Britven (ECF No. 295)"

 Watch this site.

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


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