Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`
`VITAL PHARMACEUTICALS, INC.,
`d/b/a VPX and as BANG ENERGY, a
`Florida Corporation,
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` Plaintiff,
`v.
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`MONSTER BEVERAGE CORPORATION,
`a Delaware Corporation,
`a
`MONSTER ENERGY COMPANY,
`Delaware Corporation,
`and RODNEY
`CYRIL SACKS, an individual.
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` Defendants.
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`
`
`Case No.:
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`
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`COMPLAINT
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`Plaintiff Vital Pharmaceuticals, Inc., d/b/a VPX and as Bang Energy (“VPX” or “Plaintiff”)
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`sues Defendants, Monster Beverage Corporation (“Monster Beverage Co.”), Monster Energy
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`Company (“Monster Energy Co.”) (collectively, “Monster”), and Rodney Cyril Sacks
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`(“Defendant Sacks”) and alleges:
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`INTRODUCTION
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`Monster manufactures and sells so-called “energy” drinks, including, among other
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`1.
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`product SKUs, its flagship ready-to-drink (“RTD”) green “M-Claw” product—a sugar-laden,
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`carbonated energy drainer (the “M-Claw”) depicted below:
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 2 of 26
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`2.
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`VPX brings this action to confront, and seek redress for, Monster’s decades of
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`wanton malevolence, including (i) unfairly competing and falsely advertising the nature and
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`attributes of its products, (ii) continuing to wreak grievous physical harm upon consumers by
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`ignoring reports of that its products are hazardous, even potentially lethal, (iii) abusing judicial
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`and arbitral processes as an anticompetitive tactic, and (iv) rank “trademark bullying,” all in
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`derogation of free and fair marketplace competition and at the direct behest of its ruthless (co-)
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`CEO, Rodney Cyril Sacks, acting alone or in concert with others.
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`3.
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`The claims that VPX herein asserts against Monster and Sacks sound in Unfair
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`Competition and False Advertising Under 15 U.S.C. § 1125, Violation of the Florida Unfair and
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`Deceptive Trade Practices Act and Common Law Unfair Competition.
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`THE PARTIES
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`Plaintiff VPX is a Florida corporation with its principal place of business at 1600
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`4.
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`N. Park Drive Weston, Florida 33326.
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`5.
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`Defendant Monster Beverage Co. is a Delaware corporation with its principal place
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`of business at 1 Monster Way, Corona, California 92879.
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`6.
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`Defendant Monster Energy Co. is a Delaware corporation with its principal place
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`of business at 1 Monster Way, Corona, California 92879. Monster Energy Co. is a subsidiary of
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`Monster Beverage Co., through which Monster Beverage Co. conducts business.
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`2
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 3 of 26
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`7.
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`Sacks has served as the Chairman of the Board of Monster, Chief Executive Officer,
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`and a Director of Monster from November 1990 to present. Sacks is a resident of Laguna Beach,
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`California, in Orange County, California.
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`8.
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`Defendant Sacks personally oversees all of Monster’s significant corporate
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`operations, including product development, quality control, manufacturing, distribution,
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`marketing, advertising, media, public relations, and litigation prosecutorial, strategic and tactical
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`decision-making and approval. Sacks is an integral part of Monster’s day-to-day operations and
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`has been for decades.
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`JURISDICTION AND VENUE
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`9.
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`This is an action for unfair competition and false advertising under 15 U.S.C. §
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`1125. As such, this Court possesses subject matter jurisdiction pursuant to 15 U.S.C. § 1121 (“[t]he
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`district and territorial courts of the United States shall have original jurisdiction . . . of all actions
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`arising under this chapter”).
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`10.
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`Subject matter jurisdiction also is proper pursuant to 28 U.S.C. § § 1331, 1338(a),
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`and 1338(b). This Court also has subject matter jurisdiction pursuant to 15 U.S.C. § 1121; the
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`doctrine of supplemental jurisdiction, as set forth in 28 U.S.C. § 1367; and 28 U.S.C. § 1332(a)(1),
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`because the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest
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`and costs, and is between citizens of different states.
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`11.
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`This Court has personal jurisdiction over Defendants Monster and Sacks pursuant
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`to Section 48.193(1)(a), Florida Statutes, because Defendants Monster and Sacks, personally and
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`through their agents, among other things:
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`a. Operated, conducted, engaged in, or carried on a business or business venture in
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`Florida; and,
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`b. Committed a tortious act within this state by falsely advertising their signature
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 4 of 26
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`product – Monster Energy – in this District, and VPX’s claims arise from those
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`activities.
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`12.
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`This Court also has personal jurisdiction over Defendants Monster and Sacks
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`pursuant to section 48.193(2), Florida Statutes, because, among other things, Monster and
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`Defendant Sacks engaged in substantial and non-isolated activity in Florida.
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`13.
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`Based upon the foregoing conduct, the exercise of personal jurisdiction over
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`Defendants Monster and Sacks satisfies traditional notions of fair play and substantial justice under
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`the Fourteenth Amendment of the United States Constitution.
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`14.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2), as a substantial
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`part of the events or omissions giving rise to the claims occurred in this District.
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`GENERAL ALLEGATIONS
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`Established in 1993, VPX is one of the leading manufacturers, distributors, and
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`15.
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`sellers of energy drinks and dietary supplement products.
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`16.
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`For more than a decade, VPX’s bestselling products have included Bang® RTD, a
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`carbonated, caffeinated, sugarless beverage sold in a “pop-top” can and available in several
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`different flavors (the “Bang® RTD””).
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`17.
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` Bang® RTD products are a true energy drink product purchased by active-lifestyle
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`and fitness-driven consumers.
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`18.
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`Unlike other energy drinks on the market (including the M-Claw and other Monster
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`product SKUs), the Bang® RTD drink products contain no sugar or other carbohydrates
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`19.
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`Among VPX’s competitors are Monster, which promotes its signature product, the
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`M-Claw, among other Monster product SKUs, in competition with Bang® RTD products in the
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`marketplace.
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`4
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 5 of 26
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`MONSTER & SACKS: CHEATERS AND FALSE ADVERTISERS
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`20. Monster’s advertisement of M-Claw as an “energy” drink that will “unleash the
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`beast” and provide a “big bad buzz”, preys on consumers by causing them to believe that the M-
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`Claw offers a mixture of ingredients that, when ingested, result in a sustained increase in energy
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`and that no subsequent crash will negatively affect their energy and performance.
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`21.
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`Although caffeinated, the M-Claw is, in reality, an anti-energy drink that is a sugar-
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`loaded, crash-inducing soda pop, the consumption of which provides no sustained energy, provides
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`an overall net decrease in energy, and results in a subsequent crash that negatively affects
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`consumers’ energy and performance and health. Indeed, according to publicly available adverse
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`incident reports, the consumption of M-Claw and related Monster product SKUs have been cited
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`as a suspected cause of illness and even death on numerous occasions. See Monster related CFSAN
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`adverse event reports attached hereto as Exhibit A.
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`22.
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`In 2002, Monster introduced into the market their signature Monster Energy
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`product – a carbonated, caffeinated and sugar-loaded RTD beverage sold in a “pop-top” can –
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`which Monster label and promote as an “energy” drink:
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`23.
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`For two decades, Monster has misled consumers about the effects of the M-Claw
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`5
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 6 of 26
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`and its ability to “unleash the beast” and provide energy and vitality to its consumers. According
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`to Monster’s website the M-Claw offers “a powerful punch” and “the ideal combo of the right
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`ingredients in the right proportion to deliver the big bad buzz that only Monster can.”1
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`24. Monster has promoted the M-Claw through a campaign of advertisements and
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`affiliations with extreme action sports, such as motocross, skiing and snowboarding,
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`skateboarding, mixed martial arts, Formula 1, and other endeavors typically associated with
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`athleticism, speed, rage, and of course, energy.
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`25.
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`Indeed, Monster’s advertisements are designed to target consumers interested in
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`these forms of sport and entertainment, implying to their prospective consumers, both directly and
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`indirectly, that drinking the M-Claw will enhance their performance abilities and “unleash the
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`beast” within them.2
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`26.
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`Such advertisements even portray that drinking the M-Claw will unlock a source of
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`performance, ability, and power that would otherwise be unavailable to them.
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`1 See Monster Energy, https://www.monsterenergy.com/us/en/products/monster-energy (last
`accessed Aug. 24, 2022) (emphasis added).
`2 See The Brandgym, Monster “Unleash the Beast” to Challenge Red Bull – Brilliant Brand Ideas
`1, https://thebrandgym.com/monster-unleashing-the-beast-to-challenge-red-bull/ (last accessed
`Aug. 30, 2022).
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`6
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`27.
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`According to Monster the M-Claw is the “the meanest energy drink on the planet,”
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`providing consumers with the key to accessing the energy of a “beast.”
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`7
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`28.
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`Despite its name, imaging, associations, tag lines, and motto, however, the M-Claw
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`does not provide consumers with the energy it claims to offer. In fact, it does the exact opposite.
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`29.
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`The M-Claw actually decreases consumers’ overall energy, rather than increase it.
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`Instead of a big bad buzz, all consumers are left with is a big bad crash.
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`30.
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`A single can of the M-Claw contains a whopping 58 grams of carbohydrates, of
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`which 54 grams are made up of “added sugars.” Ingredients listed within the M-Claw label include
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`“sugar,” “glucose,” and “maltodextrin.”3
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`3
`Additionally, as if the 58 grams of added sugar were not already enough, according to its
`Nutrition Facts, each can of Monster Energy also contains unknown amounts of sucralose to make
`the drink all the “sweeter” to its consumers. See https://www.healthdigest.com/597244/are-
`monster-energy-drinks-bad-for-you. (last accessed Aug. 30, 2022).
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`8
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 9 of 26
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`
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`See Walmart, Monster Energy Drink, Original, 16 fl oz,
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`https://www.walmart.com/ip/Monster-Energy-Green-Original-Energy-Drink-16-fl-oz/12018560
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`(last accessed Aug. 30, 2022).
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`31.
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`As recent studies have demonstrated, the M-Claw does not have an impact on
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`athletic benchmarks, such as increasing ride time-to-exhaustion or an improvement of treadmill
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`exercise performance.4 Indeed, the M-Claw’s high sugar and carbohydrate content actually causes
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`consumers to experience a sugar crash, resulting in higher levels of fatigue following consumption.
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`4
`See Gabriel J Sanders, Willard Peveler, Brady Holmer and Corey A Peacock, The effect of
`three different energy drinks on oxygen consumption and perceived exertion during treadmill
`exercise, Journal of
`the International Society of Sports Nutrition (Sept. 21, 2015),
`https://jissn.biomedcentral.com/articles/10.1186/1550-2783-12-S1-P1 (last accessed Aug. 30,
`2022).
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`9
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 10 of 26
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`That is, it decreases – not increases – one’s overall net energy.5
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`32.
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`Such deceptive conduct and practices in Monster’s advertisements on the part of
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`Defendants is not mere “puffery,” but is instead deceptive, fraudulent, and actionable.
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`33.
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`At all relevant times, Monster has made, and continue to make, false, misleading,
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`and disingenuous representations regarding the M-Claw and other Monster product SKUs– both
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`on the face of the product itself, as well as through other forms of marketing and advertisements.
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`34.
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`Specifically, the M-Claw was, and continues to be, advertised and marketed as “the
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`meanest energy drink on the planet,” when it, in fact, fails to provide a sustained energy increase,
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`leads to a substantial crash in energy, and actually decreases a consumer’s overall net energy:
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`See M-Claw Product Description, Monster Energy - The Original Green Monster Energy,
`https://www.monsterenergy.com/us/en/products/monster-energy/monster-energy (last accessed
`Aug. 30, 2022).
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`“Unleash the Beast”, But Not Really
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`5
`See Konstantinos, et al., Sugar rush or sugar crash? A meta-analysis of carbohydrate
`effects on mood, Neuroscience &b Biobehavioral Reviews, Volume 101, Pages 46-67 (June 2019),
`(last accessed Aug. 24, 2022) (discovered lower levels of alertness and higher levels of fatigue
`after the first hour of consumption of so-called “energy” drinks including Monster Energy).
`10
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`35.
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` Monster has strategically utilized media, athletes and celebrities to ensure their
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`false, deceptive, and misleading marketing reaches a broad consumer base.
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`36.
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`Associating their catch phrase “unleash the beast” with some of the greatest athletes
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`and entertainers in the world, Monster has effectively deceived consumers into believing the M-
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`Claw will elevate them to achieve “beast mode” with a “big bad buzz.”
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`37.
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`Examples of such false, misleading, and disingenuous representations and
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`advertisements include:
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`a. Portraying athletes such as Kamaru Usman, a professional mixed martial artist,
`stating he is “Monster Made.”6;
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`b. Advertising a new collaboration between Monster and rapper/actor Ice Cube to
`“bring a whole new ENERGY” to the NBA’s “BIG3”7; and,
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`c. Associating the heavy consumption of M-Claw and other Monster products with
`action sports and the “beast mode” vibe.8
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`6
`See
`https://twitter.com/MonsterEnergy/status/1454840595952726017?s=20&t=vT7S0QdKbKFQl1J1
`neDH6Q (last accessed Aug. 24, 2022)
`7
`See https://www.facebook.com/MonsterEnergy/photos/10159401501540827(last
`accessed Aug. 24, 2022).
`8
`See https://twitter.com/MonsterEnergy/status/1466542795540209667/photo/1(last
`accessed Aug. 24, 2022)
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`38.
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`In fact, Monster goes so far as to declare that the M-Claw has extreme lifestyle
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`benefits, claiming it is not just an energy drink, but a creation to back the next generation of future
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`musicians and athletes. See About Us Page Screenshot attached hereto as Exhibit B.
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`39.
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`In truth, however, the M-Claw fails to even deliver the most basic benefit that
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`Monster’s claim to offer their consumers – sustained energy and overall net increase in energy –
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`much less “unleash” any sort of “beast” or provide any kind of “big bad buzz”.
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`12
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`Big Bad Buzz Or Big Bad Crash?
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`40.
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`Indeed, recent studies have established that the M-Claw has a negative effect on
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`consumers’ energy levels.9
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`41.
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`That is, although purporting to be an “energy” drink that can provide its consumers
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`with a “morning hitter,” “mid-day pick me-up,” or “afternoon warrior,”10 the M-Claw actually
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`does no such thing. Id.
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`42.
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`Instead, various studies have demonstrated that the M-Claw leaves its consumers
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`experiencing a big bad sugar-crash, as well as other serious adverse health consequences as a result
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`of the excess sugars and carbohydrates the product contains. Id.
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`43. Monster undoubtedly was, and continues to be, aware of these facts as is evidenced
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`by Monster’s past deliberate efforts to downplay the density of Monster Energy’s per can sugar
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`content by formerly breaking down its Nutrition Facts panel into two separate serving sizes, despite
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`9
`See Konstantinos, et al., supra note 3; see also Fletcher E., et al., Randomized Controlled
`Trial of High-Volume Energy Drink Versus Caffeine Consumption on ECG and Hemodynamic
`Parameters, J Am Heart Assoc. (Aug. 24, 2022).
`https://www.ahajournals.org/doi/pdf/10.1161/JAHA.116.004448 (last visited Aug. 24, 2022).
`10
`See https://twitter.com/MonsterEnergy/status/1427291630164344836 (last accessed Aug.
`30, 2022).
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`13
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 14 of 26
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`the fact that it is a carbonated “pop-top” beverage product:
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`Given that carbonated pop-top beverage products were inherently limited to one serving per can
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`at the time Monster introduced the bifurcated Nutrition Facts panel, it is apparent that Monster
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`configured the Nutrition Facts panel as such in a deliberate attempt to boost the sales of M-Claw.
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`44.
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`In addition to the false and deceptive representations on the product packaging
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`itself, Monster also use social media to underscore their message that the M-Claw gives you a “big
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`bad buzz” and will “unleash the beast” – all resulting in the false and deceptive message that the
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`M-Claw, and other Monster Energy products, provide a sustained increase in energy, no
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`subsequent crash, and an increase in one’s overall net energy.
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`45. Monster’s false and deceptive representations in its advertisements deliberately
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`attack other energy drink competitors, including even VPX despite its clean safety records.
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`Monster advertises its M-Claw as, “the meanest energy drink on the planet. It is the ideal
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`combination of the right ingredients in the right proportion to deliver the big bad buzz that only
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`Monster can. Monster packs a powerful punch but has a smooth easy drinking flavor.” See About
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`Us Page Screenshot attached hereto as Exhibit B.
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`14
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 15 of 26
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`46.
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`However, such acts come at the expense and detriment of past, present, and future
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`consumers, as well as the energy drink industry alike, including but not limited to VPX, since
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`Monster’s advertisements as evidenced by Exhibit B dishonestly falsely and duplicitously suggest
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`that Monster products are superior to its energy drink competitors.
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`47. Monster should not be permitted to perpetuate false information about the M-Claw
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`and other Monster product SKUs. VPX brings this action to prevent Monster from continuing to
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`do so and requests Monster’s adverse conduct to immediately cease.
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`MONSTER & SACKS: RECKLESS PEDDLERS OF HEALTH HAZARDOUS PRODUCTS
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`48.
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`Furthermore, Monster products’ outlandish levels of sugar have been found to lead
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`to severe health consequences, including but not limited to, serious effects on a consumers’
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`cardiovascular system.11
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`49.
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`New discoveries continue to show the negative health effects of the “consumption
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`of sugar-laden energy drinks,” such as the M-Claw and other Monster product SKUs, including an
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`increased risk for kidney disease and failure.12
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`50.
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`In fact, since 2004, suspected links between consumption of Monster’s products
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`and no less than 20 deaths, 10 heart attacks, and over 120 adverse health events have been reported
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`to the F.D.A.13 See Exhibit C list of all Monster adverse health events.
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`11 See e.g., AHA recommendations: Drinking a lot of liquid sugar may lead to insulin resistance,
`metabolic syndrome, type 2 diabetes, and fatty liver disease. https://www.webmd.com/diet/what-
`to-know-liquid-sugar (last accessed Aug. 25, 2022)
`See Energy Drink Lawsuit, https://www.schmidtandclark.com/energy-drink-lawsuit (last
`12
`accessed Aug. 24, 2022) (“A new study from Johns Hopkins Bloomberg School of Public Health
`has identified yet another link between the consumption of sugar-laden energy drinks and a risk
`for kidney disease and heart attack emergency room visits.”).
`13
`See https://www.fda.gov/Food/ComplianceEnforcement/ucm494015.htm (last accessed
`Aug. 24, 2022) (identifying consumer reports of suspected links between consumption of Monster
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`51. Monster, of course, has knowledge of such information, but obscures and muffles
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`it with false and deceptive advertising practices and baseless misrepresentations that their products
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`are safe.
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`52.
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`Despite being aware of such adverse, even potentially lethal health risks, Monster
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`nonetheless continues to disseminate and tout false information about its products at the expense
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`of their consumers’ energy and health, as well as the energy drink industry as a whole – including
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`VPX.
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`53.
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`During the 2012 F.D.A. investigation of adverse health reports associated with
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`Monster Energy Products (including five deaths in 2012)14, Sacks continuously defended Monster
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`and falsely assured the public, “Once again, and first and foremost, we reiterate that Monster’s
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`products are safe,” 15 knowing, in fact, that Monster’s products had caused five deaths and would
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`•
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`•
`•
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`•
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`products and adverse health evenings including fatigue, high blood pressure, irregular cardio
`responses including cardiac arrest, and even multiple deaths). See also, Exhibit C.
`Examples of such complaints include:
`June 14, 2006 – 19 year old male hospitalized with vomiting, rhabdomyolysis,
`•
`myoclonus, dyspnea, and chest pain.
`December 8, 2011 – 25 year old male hospitalized with irregular heart rate, atrial
`fibrillation, and dyspnea.
`January 3, 2012 – 45 year old male dies following Monster Energy consumption.
`April 9, 2012 – 14 year old girl dies of cardiac arrest following Monster Energy
`consumption.
`April 26, 2018 – 30 year old male dies of cardiac arrest following Monster Energy
`consumption.
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`14 In 2012 senators Dick Durbin of Illinois and Richard Blumenthal of Connecticut, as well as
`House of Representatives member Edward J. Markey of Massachusetts, had requested the Food
`and Drug Administration investigate the safety and advertising of energy drinks such as Monster.
`Ultimately, the F.D.A. reports did not represent any conclusion about whether the products caused
`the adverse events.
`15 Monster Beverage C.E.O. defends Energy Drinks’ safety. See
`https://www.foodbusinessnews.net/articles/772-monster-beverage-c-e-o-defends-energy-drinks-
`safety#:~:text=house%2C%E2%80%9D%20Mr.,Sacks%20said.,are%20safe%2C%E2%80%9D
`%20he%20said (last accessed Aug. 30.2022)
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 17 of 26
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`continue to cause deaths. Although fatalities had already occurred, Sacks diverted the public’s
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`attention to the numbers, “Tens of billions of energy drinks have been consumed safely over the
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`past 25 years, including 8 billion Monster Energy drinks since 2002.”16
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`54.
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`Sacks himself perpetuated Monster’s deceit by publicly announcing the safety of
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`Monster’s products without bona fide evidentiary support in the face of F.D.A scrutiny. See Sacks
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`announcing publicly at shareholder’s meeting, picked up by press, that Monster products are safe
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`despite F.D.A 2012 investigation into five suspected Monster-caused deaths. 17
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`55.
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`After the 2012 F.D.A investigation, Monster and Sacks informed the public that
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`Monster would not alter the company recipe despite the five reported deaths caused by Monster’s
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`products.
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`56.
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`On July 31, 2013, Sacks testified before the Senate assuring the public and senate
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`that, “Monster is, and has always been, committed to ensuring that all of the ingredients in its
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`energy drinks (including caffeine) are safe and in regulatory compliance for their intended use.”18
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`57. Monster has used these misleading advertisements to obscure their products
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`extreme health threats and fatalities from the public at large. The FDA website contains a publicly
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`available list of Monster related fatalities and adverse health effects. To date, there have been at
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`least nineteen reported deaths, ten heart attacks, and approximately one hundred AERs. 19 See
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`
`16 Id.
`17 See https://www.ocregister.com/2013/06/18/creating-a-monster-building-a-lifestyle-in-a-can-
`brand/ (last accessed Aug. 31, 2022)
`18 See July 31, 2013 written testimony of Rodney Sacks before U.S. Senate.
`https://www.commerce.senate.gov/services/files/3D8EB9DB-8489-49DE-BDAD-
`293A3A9174F3 (last accessed Aug. 31, 2022)
`19 See https://www.fda.gov/Food/ComplianceEnforcement/ucm494015.htm (last accessed Aug.
`24, 2022) (identifying complaints submitted by consumers relating to use of M-Claw, including
`fatigue, high blood pressure, irregular cardio responses including cardiac arrest, and even death –
`with approximately 19 reported deaths since October 26, 2007).
`
`
`
`
`17
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 18 of 26
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`Monster suspected links to fatalities attached hereto as Exhibit C. See also Exhibit A.
`
`58.
`
`The first reported suspected link between consumption of Monster’s products and
`
`death occurred on or around October 26, 2007. Between October 26, 2007, through July 1, 2012,
`
`five additional deaths suspected of being linked to consumption of Monsters’ products were
`
`reported. Despite the fatalities, Monster continues to advertise their products without warning
`
`consumers of the negative health effects. See Exhibit A and C.
`
`59.
`
`On or around 2012, the F.D.A investigated Monster as a result of the five reported
`
`deaths. Despite the investigation, Monster and Sacks failed to reformulate their products and
`
`continued to employ the same deceptive advertising techniques without warning to the public. As
`
`a result, between 2012 until present, 15 additional Monster related fatalities have occurred. See
`
`Exhibit A and C.
`
`60.
`
`As a result of Monster’s and Sack’s continued false, misleading, and disingenuous
`
`representations relating to the M-Claw and other Monster product SKUs, VPX and other
`
`competitive energy drink companies have sustained, and will continue to sustain damages.
`
`61.
`
`In addition, unless halted by this Court, Monster and Sacks will continue making
`
`false and misleading representations and will continue to induce reasonable consumers into
`
`making misinformed purchasing decisions, not only resulting in an unwelcome, unanticipated
`
`crash and overall decrease in energy, but potentially exposing consumers to adverse and fatal
`
`health consequences.
`
`MONSTER & SACKS: VEXATIOUS ABUSERS OF JUDICIAL AND ARBITRAL PROCESSES
`
`62.
`
`Litigants in more than 1600 cases, Monster and Sacks are vexatious abusers of
`
`judicial and arbitral processes, using litigations, and its ample resources to fund them, to bully
`
`others, including competitors against whom Monster and Sacks misuse lawsuits as a means of
`
`
`
`18
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 19 of 26
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`trying to destroy free and fair marketplace competition.
`
`63.
`
`In a stark example, Monster actually had an arbitration award against a distributor
`
`overturned by a federal appellate court because the presiding arbitrator had an undisclosed
`
`ownership interest in the underlying arbitration organization of which Monster was a highly
`
`litigious repeat customer, thus evidencing bias in favor of Monster.20
`
`64. Monster actually had an arbitration award against a distributor overturned by a
`
`federal appellate court because the presiding arbitrator had an undisclosed ownership interest in
`
`the underlying arbitration organization of which Monster was a highly litigious repeat customer,
`
`thus evidencing bias in favor of Monster.
`
`MONSTER & SACKS: TRADEMARK BULLIES
`
`65. Monster also has been identified as the number one “All Time Biggest [Trademark]
`
`Bull[y]” by Trademarkia, which publicly lists a legion of trademark proceedings in which Monster
`
`picked on small companies and individuals, many of whom were not even in the beverage business.
`
`21
`
`66.
`
`All conditions precedent to the filing of this action have been satisfied, waived, or
`
`would be futile to perform.
`
`COUNT I
`
`VIOLATION OF SECTION 43 OF THE LANHAM ACT, 15 U.S.C. § 1125(a)
`(against Monster and Sacks)
`
`67.
`
`VPX re-alleges and incorporates the allegations of paragraphs 1 through 66 as if
`
`
`
`fully set forth herein.
`
`
`20 See Monster Energy Company vs. City Beverages, LLC, 940 F.3d 1130 (9th Cir. 2019)
`
`21 https://www.trademarkia.com/opposition/bully-monster-energy-
`company?fn=Monster%20Energy%20Company [trademarkia.com]
`19
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`
`
`

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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 20 of 26
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`68. Monster has made and distributed, in interstate commerce and in this District,
`
`advertisements that contain false or misleading statements of fact regarding their signature M-
`
`Claw product and other Monster product SKUs. Such advertisements contain actual misstatements
`
`and/or misleading statements, including among others, the statements that Monster’s product can
`
`provide consumers with a “big bad buzz” and “unleash” their inner “beast”, resulting in a sustained
`
`increase in energy, overall net increase in energy, and no subsequent crash.
`
`69.
`
`Defendant Sacks has participated, ratified, and/or directed the campaign of
`
`Monster’s false advertisements, including, but not limited to, falsely, dishonestly and
`
`mendaciously proclaiming the safety of Monster’s products.
`
`70. Monster and Defendant Sacks have made, controlled, or ratified false or misleading
`
`statements of fact in commercial advertising or promotion, and misrepresented the nature,
`
`characteristics, and qualities of their M-Claw product and other Monster product SKUs.
`
`71.
`
`These false statements actually deceive or confuse, or have a tendency to deceive
`
`or confuse, consumers as well as potential consumers. This deception/confusion is similarly
`
`material in that it is likely to influence the purchasing decisions of VPX’s consumers and potential
`
`consumers.
`
`72. Monster’s and Sacks’ false and misleading advertising statements and omissions
`
`injure both consumers and VPX.
`
`73.
`
`As such, Monster and Sack’s false and misleading advertising violate the Lanham
`
`Act § 43(a), 15 U.S.C. § 1125(a).
`
`74.
`
`Because Monster and Sacks’ have caused, and will continue to cause, irreparable
`
`injury to VPX for which there is no adequate remedy at law, VPX is entitled to injunctive relief
`
`under 15 U.S.C. § 1116, including but not limited to, an order restraining Monster and Rodney
`
`
`
`20
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`

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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022 Page 21 of 26
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`Sacks, their agents, employees, representatives, or anyone acting on their behalf, from engaging
`
`in further acts of false advertising, and ordering Monster to remove all false advertisements
`
`immediately.
`
`75.
`
`Additionally, pursuant to 15 U.S.C. § 1117, VPX is entitled to recover from
`
`Monster and Rodney Sacks for the damages sustained by VPX as a result of Monster’s and Sacks’
`
`acts in violation of the Lanham Act.
`
`76.
`
`VPX is also entitled to recover the gains, profits, and advantages that Monster and
`
`Sacks have obtained through their acts, pursuant to 15 U.S.C. § 1117.
`
`77.
`
`Finally, VPX is entitled to recover for the costs of this action, as well as attorney's
`
`fees in this exceptional case.
`
`WHEREFORE, Plaintiff VPX requests judgment against Monster and Sacks, jointly and
`
`severally, for actual damages (including, but not necessarily limited to, lost profits), disgorgement
`
`of profits, a declaratory judgment that Monster’s and Sacks’ actions violate Section 43 of the
`
`Lanham Act, entry of a preliminary and permanent injunction prohibiting all such further conduct,
`
`interest as allowed by law, attorney’s fees, costs, as well as any other relief this Court deems just
`
`and proper.
`
`COUNT II
`
`VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT,
`CHAPTER 501, PART II, FLORIDA STATUTES
`(against Monster)
`
`78.
`
`VPX re-alleges and incorporates the allegations of paragraphs 1 through 66 as if
`
`
`
`fully set forth herein.
`
`79.
`
`Florida Statutes Section 501.204(1) provides that “unfair or deceptive acts or
`
`practices in the conduct of any trade or commerce are hereby declared unlawful.” The provisions
`
`
`
`21
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`Case 0:22-cv-61621-RKA Document 1 Entered on FLSD Docket 08/31/2022