1011-00003 · Waypoint Capital Partners · Engagement

expert-engagement-letter-lakeshore.docx DOCUMENT Litigation

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP Attorneys at Law 1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 558-4000 Facsimile: (212) 558-4001 www.calderwoodharkness.com

October 5, 2022

VIA ELECTRONIC MAIL AND Sundial Data Systems

Dr. Elaine Furman, Ph.D. Principal Lakeshore Brand Consulting LLC 333 West Wacker Drive, Suite 1100 Chicago, Illinois 60606

Re: Engagement of Lakeshore Brand Consulting LLC — Consumer Confusion Survey and Damages Analysis

Matter: Meridian Consumer Brands LLC v. Brindoval Home Goods Inc.

C&H Matter No.: 1011-00003

C&H Billing Code: 11470-001

Dear Dr. Furman:

Thank you for your time during our telephone conference on September 30, 2022, in which we discussed the background of this matter and the scope of the expert services we require. We are pleased to confirm the terms of our engagement of Lakeshore Brand Consulting LLC, as set forth in detail below. This letter constitutes the formal engagement letter between Calderwood & Harkness LLP and Lakeshore Brand Consulting LLC and, upon your countersignature, will serve as the binding agreement governing the terms and conditions of this retention.

1. Purpose of Engagement and Retention

Calderwood & Harkness LLP ("C&H" or the "Firm"), on behalf of its client Meridian Consumer Brands LLC ("MCB"), a Delaware limited liability company headquartered at 450 Park Avenue South, 14th Floor, New York, New York 10016, hereby retains Lakeshore Brand Consulting LLC ("Lakeshore") as an expert consulting and testifying expert in connection with a trademark infringement dispute more fully described herein.

MCB is a consumer packaged goods company operating across three principal product verticals: household cleaning, personal care, and home fragrance product lines. In its fiscal year ending December 31, 2022, MCB generated approximately $387 million in net revenue. MCB is a portfolio company of Waypoint Capital Partners LLC, a New York–based private equity firm that acquired MCB in 2019 in a transaction valued at approximately $625 million. Waypoint Capital Partners LLC remains MCB's majority equity holder and is actively involved in strategic oversight of MCB's brand management and growth initiatives.

The underlying dispute involves Brindoval Home Goods Inc. ("Brindoval"), a Minnesota corporation headquartered at 7200 France Avenue South, Suite 300, Edina, Minnesota 55435. Brindoval is a regional big-box home goods retailer operating 148 retail store locations across twelve Midwestern and Mountain West states, including Minnesota, Wisconsin, Iowa, Illinois, Indiana, Michigan, Ohio, Nebraska, South Dakota, North Dakota, Montana, and Colorado. In its fiscal year ending January 31, 2023 (estimated), Brindoval is projected to generate approximately $2.1 billion in net revenue. Brindoval offers a broad assortment of home goods, furnishings, décor, and household consumables through its brick-and-mortar stores and its e-commerce platform located at www.crestviewhomegoods.com.

In or about July 2022, Brindoval launched a private-label line of household cleaning products under the mark "MERIDIAN FRESH." These products — which include all-purpose cleaners, glass cleaners, and disinfecting sprays — are sold in all 148 of Brindoval's retail locations and are also available for purchase through Brindoval's e-commerce platform. The MERIDIAN FRESH products feature prominent teal-and-white packaging incorporating a stylized wave device that bears a striking resemblance to MCB's established trade dress for its own MERIDIAN-branded cleaning products.

MCB contends that Brindoval's use of the MERIDIAN FRESH mark and associated trade dress — including the teal-and-white color scheme and the stylized wave device — infringes MCB's federally registered trademarks, as more fully described in Section 2 of this letter. MCB further contends that Brindoval's adoption of the MERIDIAN FRESH mark was done with knowledge of MCB's prior rights, and that the mark is likely to cause consumer confusion, mistake, or deception as to the source, sponsorship, or affiliation of Brindoval's products.

On September 26, 2022, C&H transmitted a formal cease-and-desist letter to Brindoval, demanding that Brindoval immediately cease all use of the MERIDIAN FRESH mark and trade dress, withdraw its pending trademark application (discussed below), and recall and destroy all packaging, signage, and advertising materials bearing the MERIDIAN FRESH mark. On October 10, 2022, Brindoval's counsel, Halverson McKay & Pruitt LLP, through its lead partner Gregory T. Halverson, responded to C&H's cease-and-desist letter, denying any infringement and asserting that the MERIDIAN FRESH mark is sufficiently distinct from MCB's MERIDIAN marks in the relevant marketplace. Brindoval has indicated that it does not intend to voluntarily cease use of the MERIDIAN FRESH mark.

In light of Brindoval's refusal to comply with MCB's demand, C&H anticipates pursuing two parallel enforcement actions. First, C&H intends to file a Notice of Opposition before the Trademark Trial and Appeal Board ("TTAB") of the United States Patent and Trademark Office against Brindoval's pending trademark application Serial No. 97/412,558 for the mark MERIDIAN FRESH in International Class 3 (cleaning preparations), which was filed on May 12, 2022, and published for opposition in the Official Gazette on September 6, 2022. The thirty-day opposition period expires on October 6, 2022, and C&H intends to file a request for an extension of time to oppose on or before that date. Second, C&H anticipates filing a federal complaint in the United States District Court for the Southern District of New York asserting claims under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1) (trademark infringement of registered marks); Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (false designation of origin and unfair competition); and New York General Business Law § 360-l (trademark dilution under state law). C&H also anticipates filing a motion for preliminary injunctive relief in connection with the federal action.

Lakeshore's engagement as an expert consultant and testifying expert is critical to both the TTAB proceeding and the anticipated federal court litigation. Your expertise in consumer behavior, brand perception, and survey methodology will be essential to establishing the likelihood of consumer confusion, the degree to which confusion has actually occurred in the marketplace, and the economic damages MCB has sustained as a result of Brindoval's infringing conduct.

2. MCB's Trademark Portfolio

For purposes of this engagement, the relevant trademarks owned by MCB include the following federally registered marks:

1. U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark), registered on the Principal Register on August 14, 2012, for goods in International Class 3: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. MCB's predecessor-in-interest first used the MERIDIAN mark in commerce in approximately 2011. This registration has been renewed and all required maintenance filings under Sections 8 and 15 of the Lanham Act have been timely submitted. The registration is incontestable.

2. U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark), registered on the Principal Register on October 18, 2016, for goods in International Class 3: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. All required post-registration maintenance filings have been timely submitted.

3. U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo incorporating a wave device), registered on the Principal Register on July 10, 2018, for goods in International Class 3: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. The stylized mark features the word MERIDIAN in a contemporary sans-serif typeface with a flowing wave element integrated into the letterforms, rendered in MCB's signature teal-and-white color combination.

Copies of the registration certificates for each of these marks are enclosed herewith as Enclosure A.

MCB's MERIDIAN-branded cleaning product line is the company's largest single brand by revenue and represents a cornerstone of MCB's brand portfolio. In fiscal year 2022, the MERIDIAN cleaning line generated approximately $94.5 million in net revenue, representing approximately 24.4% of MCB's total revenue of $387 million. Over the period from 2011 through 2022 — a span of approximately twelve years — MCB has invested a cumulative total of approximately $47.2 million in advertising, promotion, and marketing expenditures dedicated specifically to the MERIDIAN cleaning line, representing an average annual investment of approximately $3.93 million. These expenditures have encompassed national television advertising, digital and social media campaigns, print advertising in major consumer publications, co-operative advertising with retail partners, in-store promotional displays, coupon and rebate programs, and trade show participation.

The MERIDIAN cleaning line encompasses a comprehensive range of household cleaning products, including all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. These products are distributed through major grocery chains, club warehouses, mass-market retailers, and e-commerce channels, including Penmark Holdings, throughout all fifty states and the District of Columbia. MCB's MERIDIAN products have achieved significant consumer recognition and brand loyalty in the household cleaning category, and the MERIDIAN mark is widely recognized by consumers as a source identifier for high-quality cleaning products.

3. Scope of Engagement

Lakeshore's engagement encompasses three principal workstreams, each of which is described in detail below.

3.1 Consumer Confusion Survey

Lakeshore shall design, conduct, administer, analyze, and prepare a comprehensive written report on a consumer confusion survey, employing a Squirt-design or modified Eveready protocol, as Dr. Furman deems most appropriate given the circumstances of the case and the nature of the products at issue. The consumer confusion survey constitutes the primary deliverable of this engagement and is intended to serve as the evidentiary foundation for MCB's likelihood-of-confusion claims in both the TTAB proceeding and the anticipated federal court litigation.

The survey shall be designed to measure the extent to which consumers exposed to Brindoval's "MERIDIAN FRESH" packaging, labeling, and mark are likely to believe, or do in fact believe, that the MERIDIAN FRESH product is: (a) made by the same company that makes MCB's "MERIDIAN" and "MERIDIAN CLEAN" products; (b) affiliated with or connected to the maker of MCB's MERIDIAN products; (c) sponsored by or endorsed by the maker of MCB's MERIDIAN products; or (d) otherwise associated with, or authorized by, the maker of MCB's MERIDIAN products. The survey shall test both forward confusion (i.e., whether consumers viewing Brindoval's MERIDIAN FRESH products believe they originate from or are associated with MCB) and, if appropriate in Dr. Furman's professional judgment, reverse confusion.

The survey design shall incorporate appropriate control stimuli to establish a baseline noise rate, thereby permitting the calculation of a net confusion rate that accounts for guessing, demand effects, and other sources of survey error. The selection of control stimuli shall be determined by Dr. Furman based on accepted principles of survey methodology in trademark litigation, and shall be designed to replicate as closely as possible the conditions of the test stimuli while eliminating the allegedly confusing elements.

The survey shall target a statistically significant sample of consumers drawn from the relevant purchasing population for household cleaning products in International Class 3. The relevant universe of respondents shall consist of adults aged eighteen years and older who have purchased or who are likely to purchase household cleaning products (including all-purpose cleaners, glass cleaners, disinfecting sprays, and/or floor cleaners) within a reasonable time period. Dr. Furman shall employ appropriate screening criteria to ensure that respondents fall within the relevant purchasing population and shall document those criteria in her expert report.

Lakeshore's responsibilities with respect to the consumer confusion survey shall include, without limitation, the following:

(a) Selection and qualification of survey respondents from the relevant purchasing population;

(b) Design of all survey instruments, including questionnaires, test stimuli, and control stimuli;

(c) Selection of an appropriate survey methodology (e.g., mall intercept, online panel, or other methodology consistent with accepted survey practices in trademark litigation);

(d) Administration of the survey through a qualified and independent field service organization;

(e) Tabulation and statistical analysis of survey results, including calculation of raw confusion rates, control-group noise rates, and net confusion rates (i.e., raw confusion minus control-group noise);

(f) Preparation of a comprehensive written expert report describing the survey methodology, the survey instruments, the characteristics of the respondent universe, the results of the survey, and Dr. Furman's expert opinions regarding the likelihood and degree of consumer confusion; and

(g) Preparation of all supporting appendices, exhibits, data tables, and statistical analyses to accompany the expert report.

Given the timing of the anticipated preliminary injunction motion, the consumer confusion survey shall be designed, administered, and completed, and Dr. Furman's written report shall be delivered in draft form, no later than October 31, 2022. Dr. Furman shall work with C&H to finalize the report in the first week of November 2022 to support the filing of the preliminary injunction motion in the Southern District of New York.

Dr. Furman shall be prepared to submit her survey report in the form of a sworn declaration or affidavit suitable for filing in federal court in support of MCB's motion for preliminary injunctive relief. In addition, Dr. Furman shall be prepared to testify at deposition and at trial as a testifying expert witness, and to present, explain, and defend her survey methodology, findings, and opinions under cross-examination.

3.2 Damages Analysis

In addition to the consumer confusion survey, Lakeshore shall prepare a comprehensive damages analysis quantifying the monetary harm sustained by MCB as a result of Brindoval's adoption and use of the MERIDIAN FRESH mark and trade dress. The damages analysis shall address, as appropriate in Dr. Furman's professional judgment, the following categories of damages:

(a) Lost Profits. An analysis of MCB's lost profits attributable to consumer confusion caused by Brindoval's use of the MERIDIAN FRESH mark. This analysis shall consider, among other things, the degree of measured consumer confusion as established by the survey, the volume of sales diverted from MCB's MERIDIAN products to Brindoval's MERIDIAN FRESH products, MCB's profit margins on the affected MERIDIAN product lines, and MCB's capacity to have made the diverted sales absent Brindoval's infringing conduct.

(b) Reasonable Royalty Analysis. An analysis of the reasonable royalty that Brindoval would have been required to pay MCB for a license to use the MERIDIAN mark or a mark confusingly similar thereto. This analysis shall consider comparable licensing transactions, industry royalty rates for consumer goods trademarks, the strength and fame of the MERIDIAN mark, and the geographic scope and duration of Brindoval's infringing use.

(c) Disgorgement of Brindoval's Profits. An analysis of Brindoval's profits derived from its sale of MERIDIAN FRESH products, which may be subject to disgorgement under 15 U.S.C. § 1117(a). Based on publicly available information and data obtained through discovery, Brindoval's MERIDIAN FRESH product line generated approximately $6.8 million in gross revenue from its launch in July 2022 through November 2022, with annualized projected revenue of approximately $16.32 million based on current sales velocity. The damages analysis shall address the appropriate methodology for calculating Brindoval's profits attributable to the MERIDIAN FRESH line, including the allocation of costs and expenses.

(d) Diminution in Brand Value. An analysis of any diminution in the value of MCB's MERIDIAN brand resulting from Brindoval's infringing use, including any impairment to the distinctiveness of the MERIDIAN mark, any dilution of the mark's commercial magnetism, and any harm to MCB's goodwill associated with the mark.

Dr. Furman shall be prepared to opine on the relationship between the degree of measured consumer confusion (as established by the survey) and the quantifiable economic harm sustained by MCB, and to explain the causal nexus between consumer confusion and each category of damages identified above.

3.3 Rebuttal Work

In addition to the affirmative expert work described in Sections 3.1 and 3.2 above, Lakeshore may be asked to review and prepare a rebuttal analysis of any expert survey, expert report, or expert opinion submitted by Brindoval's retained expert. C&H has been informed that Brindoval has retained Pinnacle Research Group Inc. as its survey and damages expert. Pinnacle Research Group Inc. is located at 801 Marquette Avenue, Suite 900, Minneapolis, Minnesota 55402, and we understand that Brindoval's engagement is being led by Dr. Ronald Trask, Ph.D., a principal of Pinnacle Research Group Inc. Dr. Trask is expected to submit his own consumer confusion survey and/or critique of Dr. Furman's survey methodology, and may also submit an opposing damages analysis.

Lakeshore's rebuttal work may include, without limitation, a critique of Dr. Trask's survey design, methodology, sampling procedures, and statistical analysis; an assessment of any methodological flaws, biases, or departures from accepted survey practices; and a comparative analysis of the competing survey results. The scope and timing of any rebuttal work will be determined in consultation with C&H as the litigation progresses, and any additional compensation for rebuttal work beyond the scope of this engagement shall be addressed in accordance with Section 5 of this letter.

4. Responsible Attorney and Engagement Team

The following individuals at C&H and MCB will serve as the engagement team and points of contact for this matter:

Calderwood & Harkness LLP:

Alan Ngo, Partner, intellectual Property Group — Mr. Ngo is the responsible partner on this engagement and shall serve as the primary point of contact for Lakeshore on all substantive and strategic matters relating to the engagement. All significant communications, draft reports, and work product should be directed to Mr. Ngo in the first instance. Mr. Ngo can be reached at (212) 558-4112 (direct) or ango@calderwoodharkness.com.

Christy Bauer, Lead Associate, intellectual Property Group — Ms. Bauer will be responsible for day-to-day coordination with Lakeshore, including scheduling, document production, data requests, and review of survey instruments and draft materials. Ms. Bauer can be reached at (212) 558-4287 (direct) or cbauer@calderwoodharkness.com.

Peter Vassiliev, Working Associate, intellectual Property Group — Mr. Vassiliev will provide support in connection with document and data collection, including coordinating the production of MCB's sales data, advertising materials, packaging samples, and other materials necessary for Lakeshore's analysis. Mr. Vassiliev can be reached at (212) 558-4355 (direct) or pvassiliev@calderwoodharkness.com.

Meridian Consumer Brands LLC:

Thomas R. Hennessy, General Counsel — Mr. Hennessy is MCB's General Counsel and will be available to coordinate on legal and strategic matters, as directed by C&H. Communications with Mr. Hennessy should be coordinated through C&H.

Rachel Dominguez, Vice President, Brand Management — Ms. Dominguez is MCB's designated internal contact for the provision of brand-related data, including historical sales figures, advertising and promotional expenditure data, brand equity research, consumer demographic data, packaging samples, and other brand management materials. Requests for data and materials from Ms. Dominguez should be coordinated through Ms. Bauer or Mr. Vassiliev at C&H.

5. Compensation and Fee Arrangement

In consideration of the services to be rendered by Lakeshore under this engagement, C&H agrees to compensate Lakeshore as follows:

The total engagement fee for the services described in Section 3 of this letter shall be Eighty-Seven Thousand Five Hundred Dollars ($87,500.00) (the "Engagement Fee"). The Engagement Fee is a flat, all-inclusive fee that covers all professional services to be performed by Lakeshore in connection with this engagement, including, without limitation, survey design, survey instrument development, respondent selection and screening, survey administration, data tabulation and analysis, expert report preparation, and damages analysis.

The Engagement Fee also includes reimbursement for reasonable travel expenses incurred by Dr. Furman for up to two trips in connection with deposition testimony and/or trial testimony. Such travel expenses shall include reasonable airfare (economy or economy-plus class for flights of less than four hours; business class for flights of four hours or more), hotel accommodations at a rate not to exceed $350 per night, ground transportation, and reasonable meal expenses. Travel expenses in excess of two trips, or travel expenses exceeding the foregoing parameters, shall be subject to prior written approval by C&H.

The Engagement Fee shall be paid according to the following schedule:

(a) First Installment: Forty-Three Thousand Seven Hundred Fifty Dollars ($43,750.00), payable upon execution of this engagement letter by both parties.

(b) Second Installment: Forty-Three Thousand Seven Hundred Fifty Dollars ($43,750.00), payable upon delivery of the final survey report to C&H.

All invoices shall be directed to:

Calderwood & Harkness LLP

Attn: Accounts Payable — Intellectual Property

1251 Avenue of the Americas, 40th Floor New York, New York 10020

Reference: C&H Matter No. 1011-00003, Billing Code 11470-001

Invoices shall be payable within thirty (30) days of receipt. All invoices should include a reasonably detailed description of the work performed and the period covered.

In the event that the scope of work materially expands beyond the services described in Section 3 of this letter — including, without limitation, the preparation of a full rebuttal report in response to Brindoval's expert, the conduct of additional surveys, or the performance of additional analyses requested by C&H — Lakeshore shall provide a written estimate of the additional fees and expenses to C&H for review and approval before incurring any such additional fees. C&H shall not be obligated to pay for any work performed beyond the scope of this engagement letter absent prior written authorization from C&H.

6. Confidentiality Obligations

All information, documents, data, materials, and communications provided to Lakeshore by C&H, MCB, or any other party in connection with this engagement (collectively, "Confidential Information") are confidential and proprietary. Confidential Information includes, without limitation, MCB's financial data, sales figures, pricing information, marketing strategies, brand equity research, internal memoranda, consumer research, product formulations, trade secrets, and any other non-public information relating to MCB's business operations, as well as all litigation strategy, legal analysis, attorney communications, and work-product materials provided by C&H.

Lakeshore shall not disclose any Confidential Information to any third party without the prior written consent of C&H, except as may be required by applicable law, regulation, or court order. In the event that Lakeshore receives a subpoena, court order, or other legal process requiring or purporting to require the disclosure of Confidential Information, Lakeshore shall promptly notify C&H in writing (and in no event later than three business days following receipt of such process) and shall cooperate with C&H in seeking protective relief or other appropriate remedy to prevent or limit disclosure.

The confidentiality obligations set forth in this Section 6 shall survive the expiration or termination of this engagement and shall continue in full force and effect indefinitely, or until such time as the Confidential Information enters the public domain through no fault of Lakeshore.

Access to Confidential Information within Lakeshore shall be limited to Dr. Elaine Furman and those members of her direct research team who have a need to access such information in connection with the performance of services under this engagement. Each such team member shall be required to sign an individual confidentiality acknowledgment, in a form acceptable to C&H, prior to being granted access to any Confidential Information. Lakeshore shall maintain a log of all individuals who have been granted access to Confidential Information and shall provide such log to C&H upon request.

7. Privilege and Work-Product Protections

All communications between C&H and Lakeshore in connection with this engagement, including oral and written communications, electronic mail, memoranda, notes, and other correspondence, are made at the direction of counsel, in anticipation of litigation, and for the purpose of assisting counsel in the rendition of legal services to MCB. Such communications are protected by the attorney-client privilege and the attorney work-product doctrine, and Lakeshore shall take all reasonable steps to maintain and preserve such protections.

Lakeshore's draft reports, draft analyses, preliminary calculations, working papers, internal memoranda, notes, research materials, and all communications with C&H, including counsel's mental impressions, conclusions, opinions, and legal theories conveyed to Lakeshore, constitute opinion work-product of the highest order and shall be treated as such by Lakeshore and all of its personnel.

Lakeshore shall not produce, disclose, discuss, or otherwise make available any draft materials, internal communications, preliminary analyses, or counsel's instructions to any party other than C&H without C&H's express prior written authorization. This prohibition extends to opposing counsel, opposing experts, the court, any administrative tribunal, and any third party, unless C&H has specifically authorized such disclosure in writing.

The parties acknowledge that Dr. Furman's final expert report and testimony in this matter are understood to be potentially discoverable under Rule 26(a)(2) of the Federal Rules of Civil Procedure, which requires disclosure of expert reports containing, among other things, the expert's opinions, the bases and reasons for those opinions, the data and information considered, any exhibits, the expert's qualifications, the expert's compensation, and a listing of prior testimony. Lakeshore further acknowledges that, under Rule 26(b)(4)(B) and (C) of the Federal Rules of Civil Procedure, as amended in 2010, all draft expert reports and all communications between counsel and a testifying expert are protected from discovery, subject to limited exceptions for communications relating to compensation, facts or data provided by counsel, and assumptions provided by counsel. Lakeshore shall cooperate with C&H to ensure that these protections are fully maintained and shall not take any action that would waive or undermine such protections.

8. Independence and Objectivity

Lakeshore represents and warrants that it has no financial interest, whether direct or indirect, in MCB, Brindoval Home Goods Inc., Waypoint Capital Partners LLC, or any parent, subsidiary, affiliate, officer, director, or partner of any of the foregoing entities. Lakeshore further represents that neither Lakeshore nor Dr. Furman has any personal, professional, or financial relationship with any of the foregoing entities or their principals that could reasonably be perceived as creating a conflict of interest or impairing Lakeshore's objectivity.

Lakeshore represents and warrants that it has not previously been retained by, or performed any consulting, expert, or other professional services for, Brindoval Home Goods Inc. or its counsel, Halverson McKay & Pruitt LLP, or any attorney, partner, or associate of that firm, in any capacity.

Lakeshore shall perform all work under this engagement with full scientific objectivity and methodological rigor. Dr. Furman's opinions and conclusions shall be formed solely on the basis of the empirical data collected through the survey, the application of accepted scientific methodology, and Dr. Furman's independent professional judgment. Dr. Furman's opinions shall not be influenced by, or tailored to, the preferences, desires, or litigation positions of the retaining party. Lakeshore understands that the credibility and persuasive force of expert testimony depend upon the expert's demonstrated independence and objectivity, and Lakeshore commits to maintaining the highest standards of professional integrity throughout this engagement.

Lakeshore confirms that Dr. Furman's opinions, as set forth in her expert report and as offered in testimony, will be her own professional opinions, rendered to a reasonable degree of professional certainty, and based upon her education, training, experience, and the data and information available to her.

9. Document Retention and Return

Upon the conclusion of this engagement — whether by completion, expiration, or termination — or upon C&H's earlier written request, Lakeshore shall promptly return to C&H, or at C&H's election destroy, all Confidential Information and all copies thereof in Lakeshore's possession, custody, or control, including all documents, data, electronic files, physical materials (including product samples and packaging), and any other materials provided by C&H or MCB in connection with this engagement. Lakeshore shall certify such return or destruction in writing, in a form acceptable to C&H, within fifteen (15) days of the conclusion or termination of the engagement or C&H's request.

Notwithstanding the foregoing, Lakeshore may retain one (1) archival copy of the Confidential Information for its professional records and for compliance with applicable professional and regulatory obligations, provided that such archival copy shall remain subject to the confidentiality obligations set forth in Section 6 of this letter and shall be maintained in a secure location with access limited to Dr. Furman. The retention of an archival copy shall not relieve Lakeshore of any of its obligations under this engagement letter.

10. Term and Termination

This engagement shall be effective as of October 5, 2022, upon the execution of this engagement letter by both parties, and shall continue until the completion of the services described herein, unless earlier terminated in accordance with this Section 10.

Either party may terminate this engagement upon fifteen (15) calendar days' prior written notice to the other party. Such notice shall be delivered by electronic mail with a confirmatory copy sent by certified United States mail, return receipt requested, or by nationally recognized overnight courier service.

Upon termination, Lakeshore shall be compensated for all work performed through the effective date of termination on a pro-rata basis, calculated by reference to the proportion of the total scope of work that has been completed as of the termination date. Any unused portion of fees paid in advance shall be promptly refunded to C&H within thirty (30) days of the effective date of termination. In the event of a dispute regarding the proportion of work completed, the parties shall endeavor to resolve such dispute in good faith, and failing resolution, the matter shall be submitted to binding arbitration in New York, New York.

Termination of this engagement shall not affect the survival of the confidentiality obligations set forth in Section 6, the privilege and work-product protections set forth in Section 7, or the document retention and return obligations set forth in Section 9, all of which shall survive termination and continue in full force and effect in accordance with their respective terms.

11. Governing Law

This engagement letter shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice-of-law or conflict-of-law rules or provisions that would cause the application of the laws of any other jurisdiction. Any dispute arising out of or relating to this engagement letter that is not resolved by the parties through good-faith negotiation shall be submitted to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York, and each party hereby consents to the personal jurisdiction of such courts.

12. Acceptance

If the foregoing terms are acceptable to you, please countersign this letter in the space provided below and return one executed copy to me at your earliest convenience, but in no event later than October 10, 2022. Upon your countersignature, this letter shall constitute the binding agreement between Calderwood & Harkness LLP and Lakeshore Brand Consulting LLC with respect to the engagement described herein. This letter supersedes any prior or contemporaneous oral or written understandings between the parties with respect to the subject matter hereof.

We look forward to working with you and Lakeshore on this important matter. Please do not hesitate to contact me or Christy Bauer if you have any questions or require additional information.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo Partner, intellectual Property Group Calderwood & Harkness LLP 1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 558-4112

Email: ango@calderwoodharkness.com

Date: ________

ACKNOWLEDGED AND ACCEPTED:

LAKESHORE BRAND CONSULTING LLC

By: ________

Dr. Elaine Furman, Ph.D. Principal Lakeshore Brand Consulting LLC 333 West Wacker Drive, Suite 1100 Chicago, Illinois 60606

Date: ________

Enclosures

The following enclosures are transmitted herewith:

Enclosure A: Copies of MCB's trademark registration certificates:

• U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark, IC 3)

• U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark, IC 3)

• U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo with wave device, IC 3)

Enclosure B: Sample packaging — MCB MERIDIAN and MERIDIAN CLEAN cleaning products (all-purpose cleaner, glass cleaner, and disinfecting spray)

Enclosure C: Sample packaging — Brindoval MERIDIAN FRESH cleaning products (all-purpose cleaner, glass cleaner, and disinfecting spray), as obtained from Brindoval retail locations in the Chicago, Illinois and Minneapolis, Minnesota metropolitan areas in September 2022

Enclosure D: Copy of Brindoval's pending trademark application Serial No. 97/412,558 (MERIDIAN FRESH, International Class 3, filed May 12, 2022; published for opposition September 6, 2022), including the application as filed and the publication notice from the Official Gazette

cc: Thomas R. Hennessy, General Counsel, Meridian Consumer Brands LLC (via email) cc: Marcus Delgado, Billing Partner, Calderwood & Harkness LLP (via email) cc: Christy Bauer, Lead Associate, Calderwood & Harkness LLP (via email)

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This communication is protected by the attorney-client privilege and the attorney work-product doctrine. It is intended solely for the use of the addressee. If you have received this communication in error, please notify the sender immediately and destroy all copies.

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP Attorneys at Law 1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 558-4000 Facsimile: (212) 558-4001 www.calderwoodharkness.com
October 5, 2022
VIA ELECTRONIC MAIL AND Sundial Data Systems
Dr. Elaine Furman, Ph.D. Principal Lakeshore Brand Consulting LLC 333 West Wacker Drive, Suite 1100 Chicago, Illinois 60606
Re: Engagement of Lakeshore Brand Consulting LLC — Consumer Confusion Survey and Damages Analysis
Matter: Meridian Consumer Brands LLC v. Brindoval Home Goods Inc.
C&H Matter No.: 1011-00003
C&H Billing Code: 11470-001
Dear Dr. Furman:
Thank you for your time during our telephone conference on September 30, 2022, in which we discussed the background of this matter and the scope of the expert services we require. We are pleased to confirm the terms of our engagement of Lakeshore Brand Consulting LLC, as set forth in detail below. This letter constitutes the formal engagement letter between Calderwood & Harkness LLP and Lakeshore Brand Consulting LLC and, upon your countersignature, will serve as the binding agreement governing the terms and conditions of this retention.
1. Purpose of Engagement and Retention
Calderwood & Harkness LLP ("C&H" or the "Firm"), on behalf of its client Meridian Consumer Brands LLC ("MCB"), a Delaware limited liability company headquartered at 450 Park Avenue South, 14th Floor, New York, New York 10016, hereby retains Lakeshore Brand Consulting LLC ("Lakeshore") as an expert consulting and testifying expert in connection with a trademark infringement dispute more fully described herein.
MCB is a consumer packaged goods company operating across three principal product verticals: household cleaning, personal care, and home fragrance product lines. In its fiscal year ending December 31, 2022, MCB generated approximately $387 million in net revenue. MCB is a portfolio company of Waypoint Capital Partners LLC, a New York–based private equity firm that acquired MCB in 2019 in a transaction valued at approximately $625 million. Waypoint Capital Partners LLC remains MCB's majority equity holder and is actively involved in strategic oversight of MCB's brand management and growth initiatives.
The underlying dispute involves Brindoval Home Goods Inc. ("Brindoval"), a Minnesota corporation headquartered at 7200 France Avenue South, Suite 300, Edina, Minnesota 55435. Brindoval is a regional big-box home goods retailer operating 148 retail store locations across twelve Midwestern and Mountain West states, including Minnesota, Wisconsin, Iowa, Illinois, Indiana, Michigan, Ohio, Nebraska, South Dakota, North Dakota, Montana, and Colorado. In its fiscal year ending January 31, 2023 (estimated), Brindoval is projected to generate approximately $2.1 billion in net revenue. Brindoval offers a broad assortment of home goods, furnishings, décor, and household consumables through its brick-and-mortar stores and its e-commerce platform located at www.crestviewhomegoods.com.
In or about July 2022, Brindoval launched a private-label line of household cleaning products under the mark "MERIDIAN FRESH." These products — which include all-purpose cleaners, glass cleaners, and disinfecting sprays — are sold in all 148 of Brindoval's retail locations and are also available for purchase through Brindoval's e-commerce platform. The MERIDIAN FRESH products feature prominent teal-and-white packaging incorporating a stylized wave device that bears a striking resemblance to MCB's established trade dress for its own MERIDIAN-branded cleaning products.
MCB contends that Brindoval's use of the MERIDIAN FRESH mark and associated trade dress — including the teal-and-white color scheme and the stylized wave device — infringes MCB's federally registered trademarks, as more fully described in Section 2 of this letter. MCB further contends that Brindoval's adoption of the MERIDIAN FRESH mark was done with knowledge of MCB's prior rights, and that the mark is likely to cause consumer confusion, mistake, or deception as to the source, sponsorship, or affiliation of Brindoval's products.
On September 26, 2022, C&H transmitted a formal cease-and-desist letter to Brindoval, demanding that Brindoval immediately cease all use of the MERIDIAN FRESH mark and trade dress, withdraw its pending trademark application (discussed below), and recall and destroy all packaging, signage, and advertising materials bearing the MERIDIAN FRESH mark. On October 10, 2022, Brindoval's counsel, Halverson McKay & Pruitt LLP, through its lead partner Gregory T. Halverson, responded to C&H's cease-and-desist letter, denying any infringement and asserting that the MERIDIAN FRESH mark is sufficiently distinct from MCB's MERIDIAN marks in the relevant marketplace. Brindoval has indicated that it does not intend to voluntarily cease use of the MERIDIAN FRESH mark.
In light of Brindoval's refusal to comply with MCB's demand, C&H anticipates pursuing two parallel enforcement actions. First, C&H intends to file a Notice of Opposition before the Trademark Trial and Appeal Board ("TTAB") of the United States Patent and Trademark Office against Brindoval's pending trademark application Serial No. 97/412,558 for the mark MERIDIAN FRESH in International Class 3 (cleaning preparations), which was filed on May 12, 2022, and published for opposition in the Official Gazette on September 6, 2022. The thirty-day opposition period expires on October 6, 2022, and C&H intends to file a request for an extension of time to oppose on or before that date. Second, C&H anticipates filing a federal complaint in the United States District Court for the Southern District of New York asserting claims under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1) (trademark infringement of registered marks); Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (false designation of origin and unfair competition); and New York General Business Law § 360-l (trademark dilution under state law). C&H also anticipates filing a motion for preliminary injunctive relief in connection with the federal action.
Lakeshore's engagement as an expert consultant and testifying expert is critical to both the TTAB proceeding and the anticipated federal court litigation. Your expertise in consumer behavior, brand perception, and survey methodology will be essential to establishing the likelihood of consumer confusion, the degree to which confusion has actually occurred in the marketplace, and the economic damages MCB has sustained as a result of Brindoval's infringing conduct.
2. MCB's Trademark Portfolio
For purposes of this engagement, the relevant trademarks owned by MCB include the following federally registered marks:
1.  U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark), registered on the Principal Register on August 14, 2012, for goods in International Class 3: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. MCB's predecessor-in-interest first used the MERIDIAN mark in commerce in approximately 2011. This registration has been renewed and all required maintenance filings under Sections 8 and 15 of the Lanham Act have been timely submitted. The registration is incontestable.
2.  U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark), registered on the Principal Register on October 18, 2016, for goods in International Class 3: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. All required post-registration maintenance filings have been timely submitted.
3.  U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo incorporating a wave device), registered on the Principal Register on July 10, 2018, for goods in International Class 3: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. The stylized mark features the word MERIDIAN in a contemporary sans-serif typeface with a flowing wave element integrated into the letterforms, rendered in MCB's signature teal-and-white color combination.
Copies of the registration certificates for each of these marks are enclosed herewith as Enclosure A.
MCB's MERIDIAN-branded cleaning product line is the company's largest single brand by revenue and represents a cornerstone of MCB's brand portfolio. In fiscal year 2022, the MERIDIAN cleaning line generated approximately $94.5 million in net revenue, representing approximately 24.4% of MCB's total revenue of $387 million. Over the period from 2011 through 2022 — a span of approximately twelve years — MCB has invested a cumulative total of approximately $47.2 million in advertising, promotion, and marketing expenditures dedicated specifically to the MERIDIAN cleaning line, representing an average annual investment of approximately $3.93 million. These expenditures have encompassed national television advertising, digital and social media campaigns, print advertising in major consumer publications, co-operative advertising with retail partners, in-store promotional displays, coupon and rebate programs, and trade show participation.
The MERIDIAN cleaning line encompasses a comprehensive range of household cleaning products, including all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. These products are distributed through major grocery chains, club warehouses, mass-market retailers, and e-commerce channels, including Penmark Holdings, throughout all fifty states and the District of Columbia. MCB's MERIDIAN products have achieved significant consumer recognition and brand loyalty in the household cleaning category, and the MERIDIAN mark is widely recognized by consumers as a source identifier for high-quality cleaning products.
3. Scope of Engagement
Lakeshore's engagement encompasses three principal workstreams, each of which is described in detail below.
3.1 Consumer Confusion Survey
Lakeshore shall design, conduct, administer, analyze, and prepare a comprehensive written report on a consumer confusion survey, employing a Squirt-design or modified Eveready protocol, as Dr. Furman deems most appropriate given the circumstances of the case and the nature of the products at issue. The consumer confusion survey constitutes the primary deliverable of this engagement and is intended to serve as the evidentiary foundation for MCB's likelihood-of-confusion claims in both the TTAB proceeding and the anticipated federal court litigation.
The survey shall be designed to measure the extent to which consumers exposed to Brindoval's "MERIDIAN FRESH" packaging, labeling, and mark are likely to believe, or do in fact believe, that the MERIDIAN FRESH product is: (a) made by the same company that makes MCB's "MERIDIAN" and "MERIDIAN CLEAN" products; (b) affiliated with or connected to the maker of MCB's MERIDIAN products; (c) sponsored by or endorsed by the maker of MCB's MERIDIAN products; or (d) otherwise associated with, or authorized by, the maker of MCB's MERIDIAN products. The survey shall test both forward confusion (i.e., whether consumers viewing Brindoval's MERIDIAN FRESH products believe they originate from or are associated with MCB) and, if appropriate in Dr. Furman's professional judgment, reverse confusion.
The survey design shall incorporate appropriate control stimuli to establish a baseline noise rate, thereby permitting the calculation of a net confusion rate that accounts for guessing, demand effects, and other sources of survey error. The selection of control stimuli shall be determined by Dr. Furman based on accepted principles of survey methodology in trademark litigation, and shall be designed to replicate as closely as possible the conditions of the test stimuli while eliminating the allegedly confusing elements.
The survey shall target a statistically significant sample of consumers drawn from the relevant purchasing population for household cleaning products in International Class 3. The relevant universe of respondents shall consist of adults aged eighteen years and older who have purchased or who are likely to purchase household cleaning products (including all-purpose cleaners, glass cleaners, disinfecting sprays, and/or floor cleaners) within a reasonable time period. Dr. Furman shall employ appropriate screening criteria to ensure that respondents fall within the relevant purchasing population and shall document those criteria in her expert report.
Lakeshore's responsibilities with respect to the consumer confusion survey shall include, without limitation, the following:
(a) Selection and qualification of survey respondents from the relevant purchasing population;
(b) Design of all survey instruments, including questionnaires, test stimuli, and control stimuli;
(c) Selection of an appropriate survey methodology (e.g., mall intercept, online panel, or other methodology consistent with accepted survey practices in trademark litigation);
(d) Administration of the survey through a qualified and independent field service organization;
(e) Tabulation and statistical analysis of survey results, including calculation of raw confusion rates, control-group noise rates, and net confusion rates (i.e., raw confusion minus control-group noise);
(f) Preparation of a comprehensive written expert report describing the survey methodology, the survey instruments, the characteristics of the respondent universe, the results of the survey, and Dr. Furman's expert opinions regarding the likelihood and degree of consumer confusion; and
(g) Preparation of all supporting appendices, exhibits, data tables, and statistical analyses to accompany the expert report.
Given the timing of the anticipated preliminary injunction motion, the consumer confusion survey shall be designed, administered, and completed, and Dr. Furman's written report shall be delivered in draft form, no later than October 31, 2022. Dr. Furman shall work with C&H to finalize the report in the first week of November 2022 to support the filing of the preliminary injunction motion in the Southern District of New York.
Dr. Furman shall be prepared to submit her survey report in the form of a sworn declaration or affidavit suitable for filing in federal court in support of MCB's motion for preliminary injunctive relief. In addition, Dr. Furman shall be prepared to testify at deposition and at trial as a testifying expert witness, and to present, explain, and defend her survey methodology, findings, and opinions under cross-examination.
3.2 Damages Analysis
In addition to the consumer confusion survey, Lakeshore shall prepare a comprehensive damages analysis quantifying the monetary harm sustained by MCB as a result of Brindoval's adoption and use of the MERIDIAN FRESH mark and trade dress. The damages analysis shall address, as appropriate in Dr. Furman's professional judgment, the following categories of damages:
(a) Lost Profits. An analysis of MCB's lost profits attributable to consumer confusion caused by Brindoval's use of the MERIDIAN FRESH mark. This analysis shall consider, among other things, the degree of measured consumer confusion as established by the survey, the volume of sales diverted from MCB's MERIDIAN products to Brindoval's MERIDIAN FRESH products, MCB's profit margins on the affected MERIDIAN product lines, and MCB's capacity to have made the diverted sales absent Brindoval's infringing conduct.
(b) Reasonable Royalty Analysis. An analysis of the reasonable royalty that Brindoval would have been required to pay MCB for a license to use the MERIDIAN mark or a mark confusingly similar thereto. This analysis shall consider comparable licensing transactions, industry royalty rates for consumer goods trademarks, the strength and fame of the MERIDIAN mark, and the geographic scope and duration of Brindoval's infringing use.
(c) Disgorgement of Brindoval's Profits. An analysis of Brindoval's profits derived from its sale of MERIDIAN FRESH products, which may be subject to disgorgement under 15 U.S.C. § 1117(a). Based on publicly available information and data obtained through discovery, Brindoval's MERIDIAN FRESH product line generated approximately $6.8 million in gross revenue from its launch in July 2022 through November 2022, with annualized projected revenue of approximately $16.32 million based on current sales velocity. The damages analysis shall address the appropriate methodology for calculating Brindoval's profits attributable to the MERIDIAN FRESH line, including the allocation of costs and expenses.
(d) Diminution in Brand Value. An analysis of any diminution in the value of MCB's MERIDIAN brand resulting from Brindoval's infringing use, including any impairment to the distinctiveness of the MERIDIAN mark, any dilution of the mark's commercial magnetism, and any harm to MCB's goodwill associated with the mark.
Dr. Furman shall be prepared to opine on the relationship between the degree of measured consumer confusion (as established by the survey) and the quantifiable economic harm sustained by MCB, and to explain the causal nexus between consumer confusion and each category of damages identified above.
3.3 Rebuttal Work
In addition to the affirmative expert work described in Sections 3.1 and 3.2 above, Lakeshore may be asked to review and prepare a rebuttal analysis of any expert survey, expert report, or expert opinion submitted by Brindoval's retained expert. C&H has been informed that Brindoval has retained Pinnacle Research Group Inc. as its survey and damages expert. Pinnacle Research Group Inc. is located at 801 Marquette Avenue, Suite 900, Minneapolis, Minnesota 55402, and we understand that Brindoval's engagement is being led by Dr. Ronald Trask, Ph.D., a principal of Pinnacle Research Group Inc. Dr. Trask is expected to submit his own consumer confusion survey and/or critique of Dr. Furman's survey methodology, and may also submit an opposing damages analysis.
Lakeshore's rebuttal work may include, without limitation, a critique of Dr. Trask's survey design, methodology, sampling procedures, and statistical analysis; an assessment of any methodological flaws, biases, or departures from accepted survey practices; and a comparative analysis of the competing survey results. The scope and timing of any rebuttal work will be determined in consultation with C&H as the litigation progresses, and any additional compensation for rebuttal work beyond the scope of this engagement shall be addressed in accordance with Section 5 of this letter.
4. Responsible Attorney and Engagement Team
The following individuals at C&H and MCB will serve as the engagement team and points of contact for this matter:
Calderwood & Harkness LLP:
Alan Ngo, Partner, intellectual Property Group — Mr. Ngo is the responsible partner on this engagement and shall serve as the primary point of contact for Lakeshore on all substantive and strategic matters relating to the engagement. All significant communications, draft reports, and work product should be directed to Mr. Ngo in the first instance. Mr. Ngo can be reached at (212) 558-4112 (direct) or ango@calderwoodharkness.com.
Christy Bauer, Lead Associate, intellectual Property Group — Ms. Bauer will be responsible for day-to-day coordination with Lakeshore, including scheduling, document production, data requests, and review of survey instruments and draft materials. Ms. Bauer can be reached at (212) 558-4287 (direct) or cbauer@calderwoodharkness.com.
Peter Vassiliev, Working Associate, intellectual Property Group — Mr. Vassiliev will provide support in connection with document and data collection, including coordinating the production of MCB's sales data, advertising materials, packaging samples, and other materials necessary for Lakeshore's analysis. Mr. Vassiliev can be reached at (212) 558-4355 (direct) or pvassiliev@calderwoodharkness.com.
Meridian Consumer Brands LLC:
Thomas R. Hennessy, General Counsel — Mr. Hennessy is MCB's General Counsel and will be available to coordinate on legal and strategic matters, as directed by C&H. Communications with Mr. Hennessy should be coordinated through C&H.
Rachel Dominguez, Vice President, Brand Management — Ms. Dominguez is MCB's designated internal contact for the provision of brand-related data, including historical sales figures, advertising and promotional expenditure data, brand equity research, consumer demographic data, packaging samples, and other brand management materials. Requests for data and materials from Ms. Dominguez should be coordinated through Ms. Bauer or Mr. Vassiliev at C&H.
5. Compensation and Fee Arrangement
In consideration of the services to be rendered by Lakeshore under this engagement, C&H agrees to compensate Lakeshore as follows:
The total engagement fee for the services described in Section 3 of this letter shall be Eighty-Seven Thousand Five Hundred Dollars ($87,500.00) (the "Engagement Fee"). The Engagement Fee is a flat, all-inclusive fee that covers all professional services to be performed by Lakeshore in connection with this engagement, including, without limitation, survey design, survey instrument development, respondent selection and screening, survey administration, data tabulation and analysis, expert report preparation, and damages analysis.
The Engagement Fee also includes reimbursement for reasonable travel expenses incurred by Dr. Furman for up to two trips in connection with deposition testimony and/or trial testimony. Such travel expenses shall include reasonable airfare (economy or economy-plus class for flights of less than four hours; business class for flights of four hours or more), hotel accommodations at a rate not to exceed $350 per night, ground transportation, and reasonable meal expenses. Travel expenses in excess of two trips, or travel expenses exceeding the foregoing parameters, shall be subject to prior written approval by C&H.
The Engagement Fee shall be paid according to the following schedule:
(a) First Installment: Forty-Three Thousand Seven Hundred Fifty Dollars ($43,750.00), payable upon execution of this engagement letter by both parties.
(b) Second Installment: Forty-Three Thousand Seven Hundred Fifty Dollars ($43,750.00), payable upon delivery of the final survey report to C&H.
All invoices shall be directed to:
Calderwood & Harkness LLP
Attn: Accounts Payable — Intellectual Property
1251 Avenue of the Americas, 40th Floor New York, New York 10020
Reference: C&H Matter No. 1011-00003, Billing Code 11470-001
Invoices shall be payable within thirty (30) days of receipt. All invoices should include a reasonably detailed description of the work performed and the period covered.
In the event that the scope of work materially expands beyond the services described in Section 3 of this letter — including, without limitation, the preparation of a full rebuttal report in response to Brindoval's expert, the conduct of additional surveys, or the performance of additional analyses requested by C&H — Lakeshore shall provide a written estimate of the additional fees and expenses to C&H for review and approval before incurring any such additional fees. C&H shall not be obligated to pay for any work performed beyond the scope of this engagement letter absent prior written authorization from C&H.
6. Confidentiality Obligations
All information, documents, data, materials, and communications provided to Lakeshore by C&H, MCB, or any other party in connection with this engagement (collectively, "Confidential Information") are confidential and proprietary. Confidential Information includes, without limitation, MCB's financial data, sales figures, pricing information, marketing strategies, brand equity research, internal memoranda, consumer research, product formulations, trade secrets, and any other non-public information relating to MCB's business operations, as well as all litigation strategy, legal analysis, attorney communications, and work-product materials provided by C&H.
Lakeshore shall not disclose any Confidential Information to any third party without the prior written consent of C&H, except as may be required by applicable law, regulation, or court order. In the event that Lakeshore receives a subpoena, court order, or other legal process requiring or purporting to require the disclosure of Confidential Information, Lakeshore shall promptly notify C&H in writing (and in no event later than three business days following receipt of such process) and shall cooperate with C&H in seeking protective relief or other appropriate remedy to prevent or limit disclosure.
The confidentiality obligations set forth in this Section 6 shall survive the expiration or termination of this engagement and shall continue in full force and effect indefinitely, or until such time as the Confidential Information enters the public domain through no fault of Lakeshore.
Access to Confidential Information within Lakeshore shall be limited to Dr. Elaine Furman and those members of her direct research team who have a need to access such information in connection with the performance of services under this engagement. Each such team member shall be required to sign an individual confidentiality acknowledgment, in a form acceptable to C&H, prior to being granted access to any Confidential Information. Lakeshore shall maintain a log of all individuals who have been granted access to Confidential Information and shall provide such log to C&H upon request.
7. Privilege and Work-Product Protections
All communications between C&H and Lakeshore in connection with this engagement, including oral and written communications, electronic mail, memoranda, notes, and other correspondence, are made at the direction of counsel, in anticipation of litigation, and for the purpose of assisting counsel in the rendition of legal services to MCB. Such communications are protected by the attorney-client privilege and the attorney work-product doctrine, and Lakeshore shall take all reasonable steps to maintain and preserve such protections.
Lakeshore's draft reports, draft analyses, preliminary calculations, working papers, internal memoranda, notes, research materials, and all communications with C&H, including counsel's mental impressions, conclusions, opinions, and legal theories conveyed to Lakeshore, constitute opinion work-product of the highest order and shall be treated as such by Lakeshore and all of its personnel.
Lakeshore shall not produce, disclose, discuss, or otherwise make available any draft materials, internal communications, preliminary analyses, or counsel's instructions to any party other than C&H without C&H's express prior written authorization. This prohibition extends to opposing counsel, opposing experts, the court, any administrative tribunal, and any third party, unless C&H has specifically authorized such disclosure in writing.
The parties acknowledge that Dr. Furman's final expert report and testimony in this matter are understood to be potentially discoverable under Rule 26(a)(2) of the Federal Rules of Civil Procedure, which requires disclosure of expert reports containing, among other things, the expert's opinions, the bases and reasons for those opinions, the data and information considered, any exhibits, the expert's qualifications, the expert's compensation, and a listing of prior testimony. Lakeshore further acknowledges that, under Rule 26(b)(4)(B) and (C) of the Federal Rules of Civil Procedure, as amended in 2010, all draft expert reports and all communications between counsel and a testifying expert are protected from discovery, subject to limited exceptions for communications relating to compensation, facts or data provided by counsel, and assumptions provided by counsel. Lakeshore shall cooperate with C&H to ensure that these protections are fully maintained and shall not take any action that would waive or undermine such protections.
8. Independence and Objectivity
Lakeshore represents and warrants that it has no financial interest, whether direct or indirect, in MCB, Brindoval Home Goods Inc., Waypoint Capital Partners LLC, or any parent, subsidiary, affiliate, officer, director, or partner of any of the foregoing entities. Lakeshore further represents that neither Lakeshore nor Dr. Furman has any personal, professional, or financial relationship with any of the foregoing entities or their principals that could reasonably be perceived as creating a conflict of interest or impairing Lakeshore's objectivity.
Lakeshore represents and warrants that it has not previously been retained by, or performed any consulting, expert, or other professional services for, Brindoval Home Goods Inc. or its counsel, Halverson McKay & Pruitt LLP, or any attorney, partner, or associate of that firm, in any capacity.
Lakeshore shall perform all work under this engagement with full scientific objectivity and methodological rigor. Dr. Furman's opinions and conclusions shall be formed solely on the basis of the empirical data collected through the survey, the application of accepted scientific methodology, and Dr. Furman's independent professional judgment. Dr. Furman's opinions shall not be influenced by, or tailored to, the preferences, desires, or litigation positions of the retaining party. Lakeshore understands that the credibility and persuasive force of expert testimony depend upon the expert's demonstrated independence and objectivity, and Lakeshore commits to maintaining the highest standards of professional integrity throughout this engagement.
Lakeshore confirms that Dr. Furman's opinions, as set forth in her expert report and as offered in testimony, will be her own professional opinions, rendered to a reasonable degree of professional certainty, and based upon her education, training, experience, and the data and information available to her.
9. Document Retention and Return
Upon the conclusion of this engagement — whether by completion, expiration, or termination — or upon C&H's earlier written request, Lakeshore shall promptly return to C&H, or at C&H's election destroy, all Confidential Information and all copies thereof in Lakeshore's possession, custody, or control, including all documents, data, electronic files, physical materials (including product samples and packaging), and any other materials provided by C&H or MCB in connection with this engagement. Lakeshore shall certify such return or destruction in writing, in a form acceptable to C&H, within fifteen (15) days of the conclusion or termination of the engagement or C&H's request.
Notwithstanding the foregoing, Lakeshore may retain one (1) archival copy of the Confidential Information for its professional records and for compliance with applicable professional and regulatory obligations, provided that such archival copy shall remain subject to the confidentiality obligations set forth in Section 6 of this letter and shall be maintained in a secure location with access limited to Dr. Furman. The retention of an archival copy shall not relieve Lakeshore of any of its obligations under this engagement letter.
10. Term and Termination
This engagement shall be effective as of October 5, 2022, upon the execution of this engagement letter by both parties, and shall continue until the completion of the services described herein, unless earlier terminated in accordance with this Section 10.
Either party may terminate this engagement upon fifteen (15) calendar days' prior written notice to the other party. Such notice shall be delivered by electronic mail with a confirmatory copy sent by certified United States mail, return receipt requested, or by nationally recognized overnight courier service.
Upon termination, Lakeshore shall be compensated for all work performed through the effective date of termination on a pro-rata basis, calculated by reference to the proportion of the total scope of work that has been completed as of the termination date. Any unused portion of fees paid in advance shall be promptly refunded to C&H within thirty (30) days of the effective date of termination. In the event of a dispute regarding the proportion of work completed, the parties shall endeavor to resolve such dispute in good faith, and failing resolution, the matter shall be submitted to binding arbitration in New York, New York.
Termination of this engagement shall not affect the survival of the confidentiality obligations set forth in Section 6, the privilege and work-product protections set forth in Section 7, or the document retention and return obligations set forth in Section 9, all of which shall survive termination and continue in full force and effect in accordance with their respective terms.
11. Governing Law
This engagement letter shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice-of-law or conflict-of-law rules or provisions that would cause the application of the laws of any other jurisdiction. Any dispute arising out of or relating to this engagement letter that is not resolved by the parties through good-faith negotiation shall be submitted to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York, and each party hereby consents to the personal jurisdiction of such courts.
12. Acceptance
If the foregoing terms are acceptable to you, please countersign this letter in the space provided below and return one executed copy to me at your earliest convenience, but in no event later than October 10, 2022. Upon your countersignature, this letter shall constitute the binding agreement between Calderwood & Harkness LLP and Lakeshore Brand Consulting LLC with respect to the engagement described herein. This letter supersedes any prior or contemporaneous oral or written understandings between the parties with respect to the subject matter hereof.
We look forward to working with you and Lakeshore on this important matter. Please do not hesitate to contact me or Christy Bauer if you have any questions or require additional information.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Partner, intellectual Property Group Calderwood & Harkness LLP 1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 558-4112
Email: ango@calderwoodharkness.com
Date: ________
ACKNOWLEDGED AND ACCEPTED:
LAKESHORE BRAND CONSULTING LLC
By: ________
Dr. Elaine Furman, Ph.D. Principal Lakeshore Brand Consulting LLC 333 West Wacker Drive, Suite 1100 Chicago, Illinois 60606
Date: ________
Enclosures
The following enclosures are transmitted herewith:
Enclosure A: Copies of MCB's trademark registration certificates:
•  U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark, IC 3)
•  U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark, IC 3)
•  U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo with wave device, IC 3)
Enclosure B: Sample packaging — MCB MERIDIAN and MERIDIAN CLEAN cleaning products (all-purpose cleaner, glass cleaner, and disinfecting spray)
Enclosure C: Sample packaging — Brindoval MERIDIAN FRESH cleaning products (all-purpose cleaner, glass cleaner, and disinfecting spray), as obtained from Brindoval retail locations in the Chicago, Illinois and Minneapolis, Minnesota metropolitan areas in September 2022
Enclosure D: Copy of Brindoval's pending trademark application Serial No. 97/412,558 (MERIDIAN FRESH, International Class 3, filed May 12, 2022; published for opposition September 6, 2022), including the application as filed and the publication notice from the Official Gazette
cc: Thomas R. Hennessy, General Counsel, Meridian Consumer Brands LLC (via email) cc: Marcus Delgado, Billing Partner, Calderwood & Harkness LLP (via email) cc: Christy Bauer, Lead Associate, Calderwood & Harkness LLP (via email)
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This communication is protected by the attorney-client privilege and the attorney work-product doctrine. It is intended solely for the use of the addressee. If you have received this communication in error, please notify the sender immediately and destroy all copies.

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP

ACKNOWLEDGED AND ACCEPTED:

LAKESHORE BRAND CONSULTING LLC

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