1011-00003 · Waypoint Capital Partners · Litigation/Discovery

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

PLAINTIFF MERIDIAN CONSUMER BRANDS LLC'S INITIAL DISCLOSURES PURSUANT TO RULE 26(a)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Date of Service: January 23, 2023

Plaintiff Meridian Consumer Brands LLC ("MCB" or "Plaintiff"), a Delaware limited liability company with its principal place of business at 450 Park Avenue South, 14th Floor, New York, New York 10016, by and through its attorneys, Calderwood & Harkness LLP, 1251 Avenue of the Americas, 40th Floor, New York, New York 10020, hereby serves these Initial Disclosures pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure and the Scheduling Order entered by the Court on December 19, 2022 (Dkt. No. 14).

These Initial Disclosures are made based upon the information reasonably available to MCB and its counsel as of the date of this filing. MCB makes these disclosures in good faith and without waiving any objections to future discovery requests, including but not limited to objections based on relevance, proportionality, the attorney-client privilege, the work-product doctrine, the common-interest privilege, or any other applicable privilege, protection, or limitation. Investigation and discovery in this matter are ongoing. MCB expressly reserves the right to supplement and amend these disclosures as additional information becomes available, as required by Rule 26(e) of the Federal Rules of Civil Procedure.

Nothing in these disclosures shall be construed as a concession that any particular item of information, document, or category of documents identified herein is relevant, material, or admissible at trial, and MCB specifically reserves all evidentiary objections with respect thereto.

I. INDIVIDUALS LIKELY TO HAVE DISCOVERABLE INFORMATION — FRCP 26(a)(1)(A)(i)

Pursuant to Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure, and without prejudice to MCB's right to identify additional individuals as investigation and discovery continue, MCB identifies the following individuals who are likely to have discoverable information that MCB may use to support its claims or defenses, along with the subjects of that information:

A. Sandra Kwan

Title: Chief Executive Officer, Meridian Consumer Brands LLC

Address: c/o Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, New York 10016

Subjects of discoverable Information: Ms. Kwan is likely to have discoverable information regarding MCB's overall business operations and corporate history, including the founding, growth, and evolution of the company and its principal product lines. Ms. Kwan has knowledge of the MERIDIAN brand's strategic importance to MCB as the company's flagship consumer-facing brand and one of the most recognized names in the household cleaning products category. She is knowledgeable about MCB's market position in the household cleaning products category, including MCB's competitive landscape, distribution channels, market share, and positioning relative to other national brands and private-label competitors. Ms. Kwan has knowledge of the decision to enforce MCB's trademark rights against Defendant Brindoval Home Goods Inc. ("Brindoval") following the discovery of Brindoval's launch of the MERIDIAN FRESH product line. She is further knowledgeable regarding the impact of Brindoval's MERIDIAN FRESH launch on MCB's business, including effects on sales volume, brand perception, and consumer goodwill. Ms. Kwan also has knowledge of MCB's relationship with its private equity sponsor, Waypoint Capital Partners LLC ("Waypoint"), including the circumstances surrounding Waypoint's acquisition of MCB in 2019 for approximately $625 million, the brand-protection strategy adopted following the acquisition, and the strategic rationale for investing in and defending the MERIDIAN brand portfolio.

B. Thomas R. Hennessy

Title: General Counsel, Meridian Consumer Brands LLC

Address: c/o Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, New York 10016

Subjects of discoverable Information: Mr. Hennessy is likely to have discoverable information regarding MCB's trademark portfolio and its registration history, including the prosecution, registration, maintenance, and renewal of the following trademark registrations with the United States Patent and Trademark Office ("USPTO"):

(i) U.S. Registration No. 4,218,506 for the mark MERIDIAN in standard character form, in International Class 3, registered on August 14, 2012;

(ii) U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in standard character form, in International Class 3, registered on October 18, 2016; and

(iii) U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device, in International Class 3, registered on July 10, 2018.

Mr. Hennessy also has knowledge of MCB's trademark enforcement history, including prior enforcement actions, cease-and-desist correspondence, and opposition proceedings initiated to protect the MERIDIAN brand. He has knowledge of the circumstances under which MCB first discovered Brindoval's use of the MERIDIAN FRESH mark in commerce, including internal investigations and market monitoring activities. Mr. Hennessy has knowledge regarding the cease-and-desist letter sent on September 26, 2022, from Calderwood & Harkness LLP to Brindoval Home Goods Inc. (attention: Karen A. Whitfield, Chief Operating Officer), demanding that Brindoval cease all use of the MERIDIAN FRESH mark and trade dress. He is further knowledgeable regarding the Notice of Opposition filed on October 14, 2022, before the Trademark Trial and Appeal Board ("TTAB"), Opposition No. 91/278,415, against Brindoval's pending trademark application Serial No. 97/412,558 (MERIDIAN FRESH, standard character form, International Class 3, filed May 12, 2022, and published for opposition on September 6, 2022). Mr. Hennessy also has knowledge of MCB's damages and harm resulting from Brindoval's infringing conduct, including the impact on brand integrity, goodwill, and the economic value of the MERIDIAN trademark portfolio.

C. Rachel Dominguez

Title: Vice President, Brand Management, Meridian Consumer Brands LLC

Address: c/o Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, New York 10016

Subjects of discoverable Information: Ms. Dominguez is likely to have discoverable information regarding MCB's use of the MERIDIAN and MERIDIAN CLEAN marks in commerce since approximately 2011, including the continuous and exclusive use of those marks in connection with the sale of household cleaning products throughout the United States. Ms. Dominguez has detailed knowledge of the development, marketing, and distribution of MCB's MERIDIAN-branded household cleaning product line, which encompasses all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners, among other products. She is knowledgeable about MCB's advertising and promotional expenditures in support of the MERIDIAN brand, which total approximately $47.2 million cumulatively from 2011 through 2022, averaging approximately $3.93 million per year across print, digital, television, and social media advertising channels. Ms. Dominguez has knowledge of MCB's MERIDIAN cleaning line revenue, which was approximately $94.5 million in fiscal year 2022, representing approximately 24.4% of MCB's total revenue of approximately $387 million for that fiscal year. She is further knowledgeable regarding consumer recognition and brand equity associated with the MERIDIAN marks, including unaided and aided brand awareness data and consumer perception studies conducted in the ordinary course of MCB's business. Ms. Dominguez has direct knowledge of the comparison between MCB's MERIDIAN trade dress and Brindoval's MERIDIAN FRESH packaging, including the use by Brindoval of a teal-and-white color scheme and wave device that are substantially similar to MCB's established trade dress and registered logo mark (U.S. Reg. No. 5,589,320). She is also knowledgeable about instances of actual consumer confusion reported by MCB's customer service team, including specific complaints and inquiries from consumers who mistakenly associated Brindoval's MERIDIAN FRESH products with MCB or who purchased MERIDIAN FRESH products believing them to be manufactured by or affiliated with MCB. Finally, Ms. Dominguez is knowledgeable regarding the impact of Brindoval's MERIDIAN FRESH launch on MCB's brand equity, consumer goodwill, and sales performance, including observable declines in market share in regions where Brindoval's MERIDIAN FRESH products are sold.

D. Dr. Elaine Furman, Ph.D.

Title: Principal, Lakeshore Brand Consulting LLC

Address: Lakeshore Brand Consulting LLC, 333 West Wacker Drive, Suite 1100, Chicago, Illinois 60606

Subjects of discoverable Information: Dr. Furman is likely to have discoverable information regarding the design and execution of a consumer confusion survey conducted in October 2022 at the direction of MCB's counsel. The survey employed a Squirt-design protocol (also known as a modified Eveready protocol) to measure the likelihood of consumer confusion between MCB's MERIDIAN and MERIDIAN CLEAN marks and Brindoval's MERIDIAN FRESH mark and trade dress. The survey utilized 612 respondents who were screened to match the demographics of purchasers of household cleaning products. Dr. Furman has knowledge of the survey methodology, respondent selection criteria, geographic distribution of respondents, and the stimuli used in the survey instrument. She is also knowledgeable regarding the survey results, which showed a raw confusion rate of 38.6%, a control-group noise rate of 7.2%, and a resulting net confusion rate of 31.4%. Dr. Furman is expected to offer opinions regarding the likelihood of consumer confusion between MCB's MERIDIAN and MERIDIAN CLEAN marks and Brindoval's MERIDIAN FRESH mark and trade dress based on the survey results and her professional expertise in brand perception and trademark confusion analysis. Dr. Furman may also have knowledge relevant to damages analysis and brand valuation, including the economic impact of consumer confusion on MCB's brand equity.

E. James Alderton

Title: Managing Partner, Waypoint Capital Partners LLC

Address: Waypoint Capital Partners LLC, 590 Madison Avenue, 22nd Floor, New York, New York 10022

Subjects of discoverable Information: Mr. Alderton is likely to have discoverable information regarding Waypoint Capital Partners LLC's acquisition of MCB in 2019 for approximately $625 million, including the transaction structure, the due diligence process, and the valuation methodology employed. He is knowledgeable about the importance of the MERIDIAN brand portfolio to the investment thesis underlying Waypoint's acquisition, including the extent to which the MERIDIAN brand's consumer recognition, market position, and growth trajectory were central to the valuation assigned to MCB at the time of the acquisition. Mr. Alderton also has knowledge of the brand-protection strategy adopted by Waypoint and MCB following the acquisition, including decisions related to increased investment in trademark registration, enforcement, and monitoring, as well as the specific decision to enforce MCB's trademark rights against Brindoval following the launch of the MERIDIAN FRESH product line.

F. Additional Individuals

MCB reserves the right to identify additional individuals as discovery proceeds and as additional information becomes available. Without limitation, such additional individuals may include, but are not limited to, MCB customer service representatives who received reports of actual consumer confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products, MCB sales personnel with knowledge of the competitive impact of Brindoval's MERIDIAN FRESH launch on MCB's sales and distribution activities, and MCB financial and accounting personnel with knowledge of MCB's revenue, profitability, and damages calculations related to the MERIDIAN cleaning product line. MCB will supplement these disclosures to identify such individuals in accordance with Rule 26(e).

II. DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND TANGIBLE THINGS — FRCP 26(a)(1)(A)(ii)

Pursuant to Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, MCB identifies the following categories of documents, electronically stored information ("ESI"), and tangible things that are in the possession, custody, or control of MCB and that MCB may use to support its claims or defenses, unless the use would be solely for impeachment. All documents and ESI described below are located at MCB's headquarters at 450 Park Avenue South, 14th Floor, New York, New York 10016, and/or at the offices of MCB's counsel, Calderwood & Harkness LLP, 1251 Avenue of the Americas, 40th Floor, New York, New York 10020, unless otherwise indicated.

A. Trademark Registration and Prosecution Files

MCB has in its possession, custody, or control the following documents and materials relating to its trademark registrations and prosecution activities:

1. Certified copies of U.S. Registration No. 4,218,506 for the mark MERIDIAN in standard character form, in International Class 3 (household cleaning preparations), registered on August 14, 2012, including the certificate of registration issued by the USPTO.

2. Certified copies of U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in standard character form, in International Class 3 (household cleaning preparations), registered on October 18, 2016, including the certificate of registration issued by the USPTO.

3. Certified copies of U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device, in International Class 3 (household cleaning preparations), registered on July 10, 2018, including the certificate of registration issued by the USPTO.

4. Complete prosecution histories for each of the foregoing trademark registrations, including the original applications, office actions, responses to office actions, and all correspondence with the USPTO.

5. Specimens of use submitted to the USPTO in connection with each of the foregoing registrations and in connection with subsequent maintenance filings, demonstrating continuous and ongoing use of the MERIDIAN marks in interstate commerce.

6. Section 8 declarations of continued use and Section 15 declarations of incontestability filed with the USPTO in connection with U.S. Reg. No. 4,218,506, as well as renewal filings made in the ordinary course for each of the registrations identified above.

7. Copies of Brindoval's pending trademark application Serial No. 97/412,558 for the mark MERIDIAN FRESH in standard character form, in International Class 3, filed May 12, 2022, and published for opposition in the Official Gazette on September 6, 2022, as obtained from the USPTO's Trademark Status and Document Retrieval ("TSDR") system.

B. Evidence of MCB's Use of the MERIDIAN Marks in Commerce

MCB has in its possession, custody, or control the following documents and materials relating to its use of the MERIDIAN and MERIDIAN CLEAN marks in commerce:

1. Product packaging, labels, hang tags, and point-of-sale materials for the MERIDIAN and MERIDIAN CLEAN household cleaning product lines, covering the period from approximately 2011 through the present, including packaging for all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners.

2. Advertising and promotional materials for the MERIDIAN and MERIDIAN CLEAN brands, including print advertisements, digital banner and display advertisements, television commercial scripts and recordings, social media advertising content, influencer marketing materials, in-store promotional displays, and coupon and rebate programs, covering the period from 2011 through the present.

3. Records of MCB's cumulative advertising and promotional expenditures in support of the MERIDIAN brand, totaling approximately $47.2 million from 2011 through 2022, including annual breakdowns by media channel and campaign.

4. Distribution records showing nationwide sales of MERIDIAN-branded products through grocery retail chains, club store channels (including but not limited to warehouse club retailers), mass merchandisers, and e-commerce platforms, in all 50 states and the District of Columbia, from 2011 through the present.

C. Financial Records

MCB has in its possession, custody, or control the following financial records and materials relevant to its claims and to the computation of damages in this action:

1. Revenue records for the MERIDIAN-branded cleaning product line, including quarterly and annual sales data reflecting fiscal year 2022 revenue of approximately $94.5 million for the MERIDIAN cleaning line.

2. Revenue records reflecting MCB's total fiscal year 2022 revenue of approximately $387 million across all product lines and brands.

3. Year-by-year sales data for the MERIDIAN cleaning product line from 2011 through 2022, including unit volume and revenue by product category, distribution channel, and geographic region.

4. Profit and loss statements attributable to the MERIDIAN cleaning product line, including gross margin, contribution margin, and operating income data, for fiscal years 2019 through 2022.

5. Records reflecting Waypoint Capital Partners LLC's acquisition of MCB in 2019 for approximately $625 million, to the extent relevant to brand valuation and the economic significance of the MERIDIAN trademark portfolio, including but not limited to purchase price allocation analyses and intangible asset valuations.

D. Evidence of Brindoval's Infringing Conduct

MCB has in its possession, custody, or control the following documents, tangible things, and ESI relating to Brindoval's adoption, use, and marketing of the MERIDIAN FRESH mark and trade dress:

1. Physical product samples and photographs of Brindoval's MERIDIAN FRESH products, including the all-purpose spray, glass cleaner, disinfecting wipes, and dish soap products offered by Brindoval under the MERIDIAN FRESH brand.

2. Screenshots captured from Brindoval's e-commerce platform, www.crestviewhomegoods.com, showing MERIDIAN FRESH product listings, product descriptions, promotional banners, and consumer-facing marketing copy, captured on various dates beginning in August 2022.

3. Photographs and side-by-side packaging comparisons demonstrating the confusingly similar teal-and-white color scheme and wave device used by Brindoval on MERIDIAN FRESH product packaging, compared with MCB's established MERIDIAN trade dress and registered wave-device logo mark (U.S. Reg. No. 5,589,320).

4. Information reflecting that Brindoval launched the MERIDIAN FRESH product line in approximately July 2022, initially in all 148 Brindoval retail store locations across 12 Midwestern and Mountain West states and concurrently on Brindoval's e-commerce platform, which is accessible nationwide.

E. Evidence of Consumer Confusion

MCB has in its possession, custody, or control the following documents and materials relating to consumer confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products:

1. The consumer confusion survey report prepared by Dr. Elaine Furman, Ph.D., of Lakeshore Brand Consulting LLC, completed in October 2022, documenting a survey of 612 respondents conducted under a Squirt-design / modified Eveready protocol, and reporting a raw confusion rate of 38.6%, a control-group noise rate of 7.2%, and a net confusion rate of 31.4%.

2. Customer service records, including consumer complaint logs, telephone call records, email correspondence, and live-chat transcripts reflecting instances of actual consumer confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products, including instances in which consumers contacted MCB to inquire about or complain about MERIDIAN FRESH products in the mistaken belief that those products were manufactured by or affiliated with MCB.

3. Social media posts, online product reviews, and user-generated content from platforms including but not limited to Amazon, Northpoint Services Inc., Kestrel Services Inc., Dunmore & Co., and Fenmore Solutions, evidencing consumer confusion between the MERIDIAN and MERIDIAN FRESH brands.

F. Correspondence. MCB has in its possession, custody, or control the following correspondence related to this dispute:

1. The cease-and-desist letter dated September 26, 2022, sent from Calderwood & Harkness LLP on behalf of MCB to Brindoval Home Goods Inc., attention: Karen A. Whitfield, Chief Operating Officer, demanding that Brindoval immediately cease all use of the MERIDIAN FRESH mark and confusingly similar trade dress.

2. The response letter dated October 10, 2022, from Halverson McKay & Pruitt LLP (Gregory T. Halverson, Esq.) on behalf of Brindoval, denying that the MERIDIAN FRESH mark infringes MCB's trademark rights and declining to cease use of the mark.

3. Subsequent correspondence between Calderwood & Harkness LLP and Halverson McKay & Pruitt LLP regarding the parties' respective positions, settlement discussions (to the extent not protected by Federal Rule of Evidence 408), and the procedural status of the TTAB opposition proceeding.

G. TTAB Proceedings

MCB has in its possession, custody, or control the following documents relating to administrative proceedings before the Trademark Trial and Appeal Board:

1. The Notice of Opposition filed by MCB on October 14, 2022, in Opposition No. 91/278,415, before the Trademark Trial and Appeal Board, opposing registration of Brindoval's pending trademark application Serial No. 97/412,558 (MERIDIAN FRESH, standard character form, International Class 3).

2. All filings, correspondence, and scheduling orders issued in connection with Opposition No. 91/278,415 through the date of these disclosures.

H. Expert Materials

MCB has in its possession, custody, or control the following documents relating to expert consultants and testifying experts retained in connection with this action:

1. Engagement letter dated October 5, 2022, from Calderwood & Harkness LLP to Lakeshore Brand Consulting LLC (Dr. Elaine Furman, Ph.D.), setting forth the scope of Dr. Furman's engagement.

2. All reports, analyses, data compilations, survey instruments, respondent data, and related work product of Dr. Elaine Furman and Lakeshore Brand Consulting LLC, to the extent such materials are not protected by the attorney work-product doctrine or other applicable privilege.

MCB reserves the right to identify additional documents, ESI, and tangible things as investigation and discovery proceed, and will supplement these disclosures in accordance with Rule 26(e).

III. COMPUTATION OF DAMAGES — FRCP 26(a)(1)(A)(iii)

Pursuant to Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure, MCB provides the following computation of each category of damages claimed, together with an identification of the documents and other evidentiary material on which each computation is based. MCB notes that discovery is in its early stages, and the damage computations set forth below are preliminary in nature and based upon information presently available to MCB. MCB expressly reserves the right to supplement and amend these computations as additional information is obtained, including through discovery of Brindoval's financial records, sales data, and internal business documents.

A. Lost Profits

MCB contends that Brindoval's sale of MERIDIAN FRESH products directly diverted sales from MCB's MERIDIAN cleaning product line in the geographic markets where both products are sold and on the online channels where both products compete. MCB's fiscal year 2022 MERIDIAN cleaning line revenue was approximately $94.5 million. Based on information currently available to MCB, Brindoval's MERIDIAN FRESH product line generated approximately $6.8 million in gross revenue during its first five months on the market, from approximately July 2022 through November 2022. Annualized, this represents a projected revenue of approximately $16.3 million ($6.8 million ÷ 5 months × 12 months). MCB will provide a detailed lost-profits computation upon completion of expert analysis, but preliminary estimates attribute a significant portion of Brindoval's MERIDIAN FRESH sales to diversion from MCB's established MERIDIAN product line, given the overlapping product categories, distribution channels, and consumer demographics.

Documents Supporting This Computation: MCB's internal financial records, including quarterly and annual sales reports by product line; market share analyses prepared by MCB's brand management team; point-of-sale data from retail and e-commerce channels; and competitive intelligence reports. These documents are in MCB's possession at its headquarters and at the offices of its counsel.

B. Disgorgement of Defendant's Profits

Under Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a), MCB is entitled to recover Brindoval's profits attributable to the infringement. Based on information currently available, Brindoval's MERIDIAN FRESH product line generated approximately $6.8 million in gross revenue from July 2022 through November 2022. MCB will seek discovery of Brindoval's detailed cost data — including cost of goods sold, operating expenses, and other deductions — in order to calculate Brindoval's net profits attributable to the infringement. MCB reserves the right to update this computation upon receipt of Brindoval's financial records and upon completion of MCB's expert damages analysis. MCB further notes that under the burden-shifting framework of 15 U.S.C. § 1117(a), MCB is required to prove only Brindoval's gross revenue, while the burden to prove any deductible costs or expenses rests on Brindoval.

Documents Supporting This Computation: Publicly available financial information regarding Brindoval, including press releases, annual reports, and SEC filings (if applicable); financial information obtained through MCB's pre-suit investigation; and Brindoval's financial records to be obtained through discovery, including but not limited to Brindoval's responses to MCB's First Set of Interrogatories and First Set of Requests for Production of Documents.

C. Reasonable Royalty

In the alternative or in addition to lost profits and disgorgement of Brindoval's profits, MCB may seek damages measured by a reasonable royalty for Brindoval's unauthorized use of the MERIDIAN mark and confusingly similar trade dress. The royalty rate will be calculated by MCB's damages expert based on comparable licensing transactions in the household consumer products industry, established royalty rate benchmarks for consumer brand licenses, and a hypothetical negotiation analysis reflecting the royalty that a willing licensor and willing licensee would have agreed upon at the time Brindoval first adopted the MERIDIAN FRESH mark. MCB's preliminary analysis suggests that reasonable royalty rates for established consumer cleaning product brands typically range from 3% to 8% of net sales, depending on the strength and recognition of the licensed mark, the scope of the license, and other market factors.

Documents Supporting This Computation: MCB's licensing history (if any), including any trademark license agreements entered into by MCB for the MERIDIAN marks; industry licensing data and comparable transactions; royalty rate surveys and benchmarking studies; and expert analysis to be prepared by Dr. Elaine Furman of Lakeshore Brand Consulting LLC or another designated damages expert.

D. Corrective Advertising

MCB may seek damages for corrective advertising expenses that will be necessary to restore consumer associations with the MERIDIAN brand and to dispel the confusion caused by Brindoval's use of the MERIDIAN FRESH mark and confusingly similar teal-and-white trade dress. MCB's cumulative advertising spend of approximately $47.2 million from 2011 through 2022, averaging approximately $3.93 million per year, serves as a benchmark for evaluating the scale of the corrective advertising campaign that will be required. The computation of corrective advertising damages will be refined upon expert analysis, taking into account the duration and geographic scope of Brindoval's infringing use, the degree of consumer confusion established by survey evidence (31.4% net confusion rate), and the cost of corrective messaging across MCB's established advertising channels.

Documents Supporting This Computation: MCB's annual advertising and promotional expenditure records from 2011 through 2022; media plans and advertising contracts; the consumer confusion survey report prepared by Dr. Furman; and expert analysis regarding the scope and cost of a corrective advertising campaign.

E. Enhanced Damages and Attorney's Fees

MCB reserves the right to seek enhanced damages — including treble damages — under 15 U.S.C. § 1117(a), in the event the Court determines that such an award is warranted by the circumstances of this case, including but not limited to any evidence of willfulness, bad faith, or deliberate infringement by Brindoval. MCB further reserves the right to seek an award of reasonable attorney's fees under 15 U.S.C. § 1117(a) in the event the Court finds this to be an "exceptional case" within the meaning of the statute. MCB's entitlement to enhanced damages and attorney's fees will be addressed at the appropriate stage of this litigation.

F. Reservation. Discovery in this action is ongoing and in its early stages. MCB expressly reserves the right to supplement and amend its damage computations as additional information is obtained through the discovery process, including through Brindoval's responses to MCB's First Set of Interrogatories, MCB's First Set of Requests for Production of Documents, and any depositions of Brindoval's officers, employees, and agents. MCB further reserves the right to designate expert witnesses to provide detailed damages analyses and to supplement these disclosures to reflect such expert testimony.

IV. INSURANCE AGREEMENTS — FRCP 26(a)(1)(A)(iv)

Pursuant to Rule 26(a)(1)(A)(iv) of the Federal Rules of Civil Procedure, MCB identifies the following insurance agreements under which an insurance business entity may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse MCB for payments made to satisfy a judgment:

1. Comprehensive General Liability Insurance Policy. MCB maintains a comprehensive general liability insurance policy issued by Sentinel Indemnity Insurance Company, Policy No. GL-2022-40871, with coverage limits of $5,000,000 per occurrence and $10,000,000 in the aggregate, effective January 1, 2022, through December 31, 2022, and renewed for the policy period January 1, 2023, through December 31, 2023. This policy may provide coverage for certain defense costs or indemnification obligations arising out of advertising injury or intellectual property claims asserted against MCB, including any counterclaims that may be asserted by Brindoval in this action. MCB will make a copy of this policy available for inspection and copying by Brindoval's counsel upon reasonable request.

2. Directors and Officers Liability Insurance Policy. MCB also maintains a directors and officers liability insurance policy issued by Apex Professional Lines Insurance Co., Policy No. DO-2022-11593, which may be potentially implicated by counterclaims asserted against MCB's officers or directors in connection with this litigation. MCB will make a copy of this policy available for inspection and copying by Brindoval's counsel upon reasonable request.

MCB is not currently aware of any other insurance agreement under which an insurer may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse MCB for payments made to satisfy a judgment. MCB reserves the right to supplement this disclosure if additional potentially responsive insurance agreements are identified.

V. RESERVATION OF RIGHTS AND GENERAL QUALIFICATIONS

These Initial Disclosures are based on information currently known to MCB and its counsel, Calderwood & Harkness LLP, as of January 23, 2023. Investigation and discovery in this action are continuing, and MCB anticipates that additional responsive information will be identified as the case proceeds.

MCB expressly reserves the right to supplement or amend these disclosures as required by Rule 26(e) of the Federal Rules of Civil Procedure and as additional information becomes available through the discovery process, including through document production, interrogatory responses, depositions, and expert analysis.

These disclosures are made without prejudice to, and MCB expressly reserves, MCB's right to assert any and all objections to discovery requests, including but not limited to objections based on the attorney-client privilege, the work-product doctrine, the common-interest privilege, or any other applicable privilege, protection, or limitation recognized under federal or state law.

MCB does not, by making these disclosures, concede that any information, document, or category of documents identified herein is relevant, material, or admissible at trial. MCB specifically reserves all evidentiary objections, including objections based on relevance, hearsay, authentication, and any other applicable rule of evidence.

These disclosures do not purport to identify every individual who may have discoverable information, every document that may be used to support MCB's claims or defenses, or every detail of MCB's damages computation. MCB has made a reasonable inquiry based on the information available as of the date hereof and will continue to review and supplement these disclosures in good faith as this litigation progresses.

VI. SIGNATURE

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo Responsible Partner

Christy Bauer Lead Associate

1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 506-7000 Facsimile: (212) 506-7001

Email: anglo@calderwoodharkness.com

Email: cbauer@calderwoodharkness.com

Attorneys for Plaintiff Meridian Consumer Brands LLC

Matter No. 1011-00003

Dated: January 23, 2023

CERTIFICATE OF SERVICE

I, Christy Bauer, hereby certify that on January 23, 2023, a true and correct copy of the foregoing Plaintiff Meridian Consumer Brands LLC's Initial Disclosures Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure was served upon counsel for Defendant Brindoval Home Goods Inc. via the Court's Electronic Case Filing ("ECF") system and by electronic mail at the following addresses:

Gregory T. Halverson, Esq. Megan Janssen, Esq. David Kowalski, Esq. HALVERSON McKAY & PRUITT LLP 225 South Sixth Street, Suite 4200 Minneapolis, Minnesota 55402 Telephone: (612) 444-8200

Email: ghalverson@hmplaw.com

Email: mjanssen@hmplaw.com

Email: dkowalski@hmplaw.com

________________________________________

Christy Bauer CALDERWOOD & HARKNESS LLP

MERIDIAN CONSUMER BRANDS LLC,

<!-- indent:2 -->Plaintiff,<!-- /indent -->	Case No. 1:22-cv-09483
v.	(Hon. Patricia M. Albright)

BRINDOVAL HOME GOODS INC.,

Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
PLAINTIFF MERIDIAN CONSUMER BRANDS LLC'S INITIAL DISCLOSURES PURSUANT TO RULE 26(a)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE
Date of Service: January 23, 2023
Plaintiff Meridian Consumer Brands LLC ("MCB" or "Plaintiff"), a Delaware limited liability company with its principal place of business at 450 Park Avenue South, 14th Floor, New York, New York 10016, by and through its attorneys, Calderwood & Harkness LLP, 1251 Avenue of the Americas, 40th Floor, New York, New York 10020, hereby serves these Initial Disclosures pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure and the Scheduling Order entered by the Court on December 19, 2022 (Dkt. No. 14).
These Initial Disclosures are made based upon the information reasonably available to MCB and its counsel as of the date of this filing. MCB makes these disclosures in good faith and without waiving any objections to future discovery requests, including but not limited to objections based on relevance, proportionality, the attorney-client privilege, the work-product doctrine, the common-interest privilege, or any other applicable privilege, protection, or limitation. Investigation and discovery in this matter are ongoing. MCB expressly reserves the right to supplement and amend these disclosures as additional information becomes available, as required by Rule 26(e) of the Federal Rules of Civil Procedure.
Nothing in these disclosures shall be construed as a concession that any particular item of information, document, or category of documents identified herein is relevant, material, or admissible at trial, and MCB specifically reserves all evidentiary objections with respect thereto.
I. INDIVIDUALS LIKELY TO HAVE DISCOVERABLE INFORMATION — FRCP 26(a)(1)(A)(i)
Pursuant to Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure, and without prejudice to MCB's right to identify additional individuals as investigation and discovery continue, MCB identifies the following individuals who are likely to have discoverable information that MCB may use to support its claims or defenses, along with the subjects of that information:
A. Sandra Kwan
Title: Chief Executive Officer, Meridian Consumer Brands LLC
Address: c/o Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, New York 10016
Subjects of discoverable Information: Ms. Kwan is likely to have discoverable information regarding MCB's overall business operations and corporate history, including the founding, growth, and evolution of the company and its principal product lines. Ms. Kwan has knowledge of the MERIDIAN brand's strategic importance to MCB as the company's flagship consumer-facing brand and one of the most recognized names in the household cleaning products category. She is knowledgeable about MCB's market position in the household cleaning products category, including MCB's competitive landscape, distribution channels, market share, and positioning relative to other national brands and private-label competitors. Ms. Kwan has knowledge of the decision to enforce MCB's trademark rights against Defendant Brindoval Home Goods Inc. ("Brindoval") following the discovery of Brindoval's launch of the MERIDIAN FRESH product line. She is further knowledgeable regarding the impact of Brindoval's MERIDIAN FRESH launch on MCB's business, including effects on sales volume, brand perception, and consumer goodwill. Ms. Kwan also has knowledge of MCB's relationship with its private equity sponsor, Waypoint Capital Partners LLC ("Waypoint"), including the circumstances surrounding Waypoint's acquisition of MCB in 2019 for approximately $625 million, the brand-protection strategy adopted following the acquisition, and the strategic rationale for investing in and defending the MERIDIAN brand portfolio.
B. Thomas R. Hennessy
Title: General Counsel, Meridian Consumer Brands LLC
Address: c/o Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, New York 10016
Subjects of discoverable Information: Mr. Hennessy is likely to have discoverable information regarding MCB's trademark portfolio and its registration history, including the prosecution, registration, maintenance, and renewal of the following trademark registrations with the United States Patent and Trademark Office ("USPTO"):
(i) U.S. Registration No. 4,218,506 for the mark MERIDIAN in standard character form, in International Class 3, registered on August 14, 2012;
(ii) U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in standard character form, in International Class 3, registered on October 18, 2016; and
(iii) U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device, in International Class 3, registered on July 10, 2018.
Mr. Hennessy also has knowledge of MCB's trademark enforcement history, including prior enforcement actions, cease-and-desist correspondence, and opposition proceedings initiated to protect the MERIDIAN brand. He has knowledge of the circumstances under which MCB first discovered Brindoval's use of the MERIDIAN FRESH mark in commerce, including internal investigations and market monitoring activities. Mr. Hennessy has knowledge regarding the cease-and-desist letter sent on September 26, 2022, from Calderwood & Harkness LLP to Brindoval Home Goods Inc. (attention: Karen A. Whitfield, Chief Operating Officer), demanding that Brindoval cease all use of the MERIDIAN FRESH mark and trade dress. He is further knowledgeable regarding the Notice of Opposition filed on October 14, 2022, before the Trademark Trial and Appeal Board ("TTAB"), Opposition No. 91/278,415, against Brindoval's pending trademark application Serial No. 97/412,558 (MERIDIAN FRESH, standard character form, International Class 3, filed May 12, 2022, and published for opposition on September 6, 2022). Mr. Hennessy also has knowledge of MCB's damages and harm resulting from Brindoval's infringing conduct, including the impact on brand integrity, goodwill, and the economic value of the MERIDIAN trademark portfolio.
C. Rachel Dominguez
Title: Vice President, Brand Management, Meridian Consumer Brands LLC
Address: c/o Meridian Consumer Brands LLC, 450 Park Avenue South, 14th Floor, New York, New York 10016
Subjects of discoverable Information: Ms. Dominguez is likely to have discoverable information regarding MCB's use of the MERIDIAN and MERIDIAN CLEAN marks in commerce since approximately 2011, including the continuous and exclusive use of those marks in connection with the sale of household cleaning products throughout the United States. Ms. Dominguez has detailed knowledge of the development, marketing, and distribution of MCB's MERIDIAN-branded household cleaning product line, which encompasses all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners, among other products. She is knowledgeable about MCB's advertising and promotional expenditures in support of the MERIDIAN brand, which total approximately $47.2 million cumulatively from 2011 through 2022, averaging approximately $3.93 million per year across print, digital, television, and social media advertising channels. Ms. Dominguez has knowledge of MCB's MERIDIAN cleaning line revenue, which was approximately $94.5 million in fiscal year 2022, representing approximately 24.4% of MCB's total revenue of approximately $387 million for that fiscal year. She is further knowledgeable regarding consumer recognition and brand equity associated with the MERIDIAN marks, including unaided and aided brand awareness data and consumer perception studies conducted in the ordinary course of MCB's business. Ms. Dominguez has direct knowledge of the comparison between MCB's MERIDIAN trade dress and Brindoval's MERIDIAN FRESH packaging, including the use by Brindoval of a teal-and-white color scheme and wave device that are substantially similar to MCB's established trade dress and registered logo mark (U.S. Reg. No. 5,589,320). She is also knowledgeable about instances of actual consumer confusion reported by MCB's customer service team, including specific complaints and inquiries from consumers who mistakenly associated Brindoval's MERIDIAN FRESH products with MCB or who purchased MERIDIAN FRESH products believing them to be manufactured by or affiliated with MCB. Finally, Ms. Dominguez is knowledgeable regarding the impact of Brindoval's MERIDIAN FRESH launch on MCB's brand equity, consumer goodwill, and sales performance, including observable declines in market share in regions where Brindoval's MERIDIAN FRESH products are sold.
D. Dr. Elaine Furman, Ph.D.
Title: Principal, Lakeshore Brand Consulting LLC
Address: Lakeshore Brand Consulting LLC, 333 West Wacker Drive, Suite 1100, Chicago, Illinois 60606
Subjects of discoverable Information: Dr. Furman is likely to have discoverable information regarding the design and execution of a consumer confusion survey conducted in October 2022 at the direction of MCB's counsel. The survey employed a Squirt-design protocol (also known as a modified Eveready protocol) to measure the likelihood of consumer confusion between MCB's MERIDIAN and MERIDIAN CLEAN marks and Brindoval's MERIDIAN FRESH mark and trade dress. The survey utilized 612 respondents who were screened to match the demographics of purchasers of household cleaning products. Dr. Furman has knowledge of the survey methodology, respondent selection criteria, geographic distribution of respondents, and the stimuli used in the survey instrument. She is also knowledgeable regarding the survey results, which showed a raw confusion rate of 38.6%, a control-group noise rate of 7.2%, and a resulting net confusion rate of 31.4%. Dr. Furman is expected to offer opinions regarding the likelihood of consumer confusion between MCB's MERIDIAN and MERIDIAN CLEAN marks and Brindoval's MERIDIAN FRESH mark and trade dress based on the survey results and her professional expertise in brand perception and trademark confusion analysis. Dr. Furman may also have knowledge relevant to damages analysis and brand valuation, including the economic impact of consumer confusion on MCB's brand equity.
E. James Alderton
Title: Managing Partner, Waypoint Capital Partners LLC
Address: Waypoint Capital Partners LLC, 590 Madison Avenue, 22nd Floor, New York, New York 10022
Subjects of discoverable Information: Mr. Alderton is likely to have discoverable information regarding Waypoint Capital Partners LLC's acquisition of MCB in 2019 for approximately $625 million, including the transaction structure, the due diligence process, and the valuation methodology employed. He is knowledgeable about the importance of the MERIDIAN brand portfolio to the investment thesis underlying Waypoint's acquisition, including the extent to which the MERIDIAN brand's consumer recognition, market position, and growth trajectory were central to the valuation assigned to MCB at the time of the acquisition. Mr. Alderton also has knowledge of the brand-protection strategy adopted by Waypoint and MCB following the acquisition, including decisions related to increased investment in trademark registration, enforcement, and monitoring, as well as the specific decision to enforce MCB's trademark rights against Brindoval following the launch of the MERIDIAN FRESH product line.
F. Additional Individuals
MCB reserves the right to identify additional individuals as discovery proceeds and as additional information becomes available. Without limitation, such additional individuals may include, but are not limited to, MCB customer service representatives who received reports of actual consumer confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products, MCB sales personnel with knowledge of the competitive impact of Brindoval's MERIDIAN FRESH launch on MCB's sales and distribution activities, and MCB financial and accounting personnel with knowledge of MCB's revenue, profitability, and damages calculations related to the MERIDIAN cleaning product line. MCB will supplement these disclosures to identify such individuals in accordance with Rule 26(e).
II. DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND TANGIBLE THINGS — FRCP 26(a)(1)(A)(ii)
Pursuant to Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, MCB identifies the following categories of documents, electronically stored information ("ESI"), and tangible things that are in the possession, custody, or control of MCB and that MCB may use to support its claims or defenses, unless the use would be solely for impeachment. All documents and ESI described below are located at MCB's headquarters at 450 Park Avenue South, 14th Floor, New York, New York 10016, and/or at the offices of MCB's counsel, Calderwood & Harkness LLP, 1251 Avenue of the Americas, 40th Floor, New York, New York 10020, unless otherwise indicated.
A. Trademark Registration and Prosecution Files
MCB has in its possession, custody, or control the following documents and materials relating to its trademark registrations and prosecution activities:
1. Certified copies of U.S. Registration No. 4,218,506 for the mark MERIDIAN in standard character form, in International Class 3 (household cleaning preparations), registered on August 14, 2012, including the certificate of registration issued by the USPTO.
2. Certified copies of U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in standard character form, in International Class 3 (household cleaning preparations), registered on October 18, 2016, including the certificate of registration issued by the USPTO.
3. Certified copies of U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device, in International Class 3 (household cleaning preparations), registered on July 10, 2018, including the certificate of registration issued by the USPTO.
4. Complete prosecution histories for each of the foregoing trademark registrations, including the original applications, office actions, responses to office actions, and all correspondence with the USPTO.
5. Specimens of use submitted to the USPTO in connection with each of the foregoing registrations and in connection with subsequent maintenance filings, demonstrating continuous and ongoing use of the MERIDIAN marks in interstate commerce.
6. Section 8 declarations of continued use and Section 15 declarations of incontestability filed with the USPTO in connection with U.S. Reg. No. 4,218,506, as well as renewal filings made in the ordinary course for each of the registrations identified above.
7. Copies of Brindoval's pending trademark application Serial No. 97/412,558 for the mark MERIDIAN FRESH in standard character form, in International Class 3, filed May 12, 2022, and published for opposition in the Official Gazette on September 6, 2022, as obtained from the USPTO's Trademark Status and Document Retrieval ("TSDR") system.
B. Evidence of MCB's Use of the MERIDIAN Marks in Commerce
MCB has in its possession, custody, or control the following documents and materials relating to its use of the MERIDIAN and MERIDIAN CLEAN marks in commerce:
1. Product packaging, labels, hang tags, and point-of-sale materials for the MERIDIAN and MERIDIAN CLEAN household cleaning product lines, covering the period from approximately 2011 through the present, including packaging for all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners.
2. Advertising and promotional materials for the MERIDIAN and MERIDIAN CLEAN brands, including print advertisements, digital banner and display advertisements, television commercial scripts and recordings, social media advertising content, influencer marketing materials, in-store promotional displays, and coupon and rebate programs, covering the period from 2011 through the present.
3. Records of MCB's cumulative advertising and promotional expenditures in support of the MERIDIAN brand, totaling approximately $47.2 million from 2011 through 2022, including annual breakdowns by media channel and campaign.
4. Distribution records showing nationwide sales of MERIDIAN-branded products through grocery retail chains, club store channels (including but not limited to warehouse club retailers), mass merchandisers, and e-commerce platforms, in all 50 states and the District of Columbia, from 2011 through the present.
C. Financial Records
MCB has in its possession, custody, or control the following financial records and materials relevant to its claims and to the computation of damages in this action:
1. Revenue records for the MERIDIAN-branded cleaning product line, including quarterly and annual sales data reflecting fiscal year 2022 revenue of approximately $94.5 million for the MERIDIAN cleaning line.
2. Revenue records reflecting MCB's total fiscal year 2022 revenue of approximately $387 million across all product lines and brands.
3. Year-by-year sales data for the MERIDIAN cleaning product line from 2011 through 2022, including unit volume and revenue by product category, distribution channel, and geographic region.
4. Profit and loss statements attributable to the MERIDIAN cleaning product line, including gross margin, contribution margin, and operating income data, for fiscal years 2019 through 2022.
5. Records reflecting Waypoint Capital Partners LLC's acquisition of MCB in 2019 for approximately $625 million, to the extent relevant to brand valuation and the economic significance of the MERIDIAN trademark portfolio, including but not limited to purchase price allocation analyses and intangible asset valuations.
D. Evidence of Brindoval's Infringing Conduct
MCB has in its possession, custody, or control the following documents, tangible things, and ESI relating to Brindoval's adoption, use, and marketing of the MERIDIAN FRESH mark and trade dress:
1. Physical product samples and photographs of Brindoval's MERIDIAN FRESH products, including the all-purpose spray, glass cleaner, disinfecting wipes, and dish soap products offered by Brindoval under the MERIDIAN FRESH brand.
2. Screenshots captured from Brindoval's e-commerce platform, www.crestviewhomegoods.com, showing MERIDIAN FRESH product listings, product descriptions, promotional banners, and consumer-facing marketing copy, captured on various dates beginning in August 2022.
3. Photographs and side-by-side packaging comparisons demonstrating the confusingly similar teal-and-white color scheme and wave device used by Brindoval on MERIDIAN FRESH product packaging, compared with MCB's established MERIDIAN trade dress and registered wave-device logo mark (U.S. Reg. No. 5,589,320).
4. Information reflecting that Brindoval launched the MERIDIAN FRESH product line in approximately July 2022, initially in all 148 Brindoval retail store locations across 12 Midwestern and Mountain West states and concurrently on Brindoval's e-commerce platform, which is accessible nationwide.
E. Evidence of Consumer Confusion
MCB has in its possession, custody, or control the following documents and materials relating to consumer confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products:
1. The consumer confusion survey report prepared by Dr. Elaine Furman, Ph.D., of Lakeshore Brand Consulting LLC, completed in October 2022, documenting a survey of 612 respondents conducted under a Squirt-design / modified Eveready protocol, and reporting a raw confusion rate of 38.6%, a control-group noise rate of 7.2%, and a net confusion rate of 31.4%.
2. Customer service records, including consumer complaint logs, telephone call records, email correspondence, and live-chat transcripts reflecting instances of actual consumer confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products, including instances in which consumers contacted MCB to inquire about or complain about MERIDIAN FRESH products in the mistaken belief that those products were manufactured by or affiliated with MCB.
3. Social media posts, online product reviews, and user-generated content from platforms including but not limited to Amazon, Northpoint Services Inc., Kestrel Services Inc., Dunmore & Co., and Fenmore Solutions, evidencing consumer confusion between the MERIDIAN and MERIDIAN FRESH brands.
F. Correspondence. MCB has in its possession, custody, or control the following correspondence related to this dispute:
1. The cease-and-desist letter dated September 26, 2022, sent from Calderwood & Harkness LLP on behalf of MCB to Brindoval Home Goods Inc., attention: Karen A. Whitfield, Chief Operating Officer, demanding that Brindoval immediately cease all use of the MERIDIAN FRESH mark and confusingly similar trade dress.
2. The response letter dated October 10, 2022, from Halverson McKay & Pruitt LLP (Gregory T. Halverson, Esq.) on behalf of Brindoval, denying that the MERIDIAN FRESH mark infringes MCB's trademark rights and declining to cease use of the mark.
3. Subsequent correspondence between Calderwood & Harkness LLP and Halverson McKay & Pruitt LLP regarding the parties' respective positions, settlement discussions (to the extent not protected by Federal Rule of Evidence 408), and the procedural status of the TTAB opposition proceeding.
G. TTAB Proceedings
MCB has in its possession, custody, or control the following documents relating to administrative proceedings before the Trademark Trial and Appeal Board:
1. The Notice of Opposition filed by MCB on October 14, 2022, in Opposition No. 91/278,415, before the Trademark Trial and Appeal Board, opposing registration of Brindoval's pending trademark application Serial No. 97/412,558 (MERIDIAN FRESH, standard character form, International Class 3).
2. All filings, correspondence, and scheduling orders issued in connection with Opposition No. 91/278,415 through the date of these disclosures.
H. Expert Materials
MCB has in its possession, custody, or control the following documents relating to expert consultants and testifying experts retained in connection with this action:
1. Engagement letter dated October 5, 2022, from Calderwood & Harkness LLP to Lakeshore Brand Consulting LLC (Dr. Elaine Furman, Ph.D.), setting forth the scope of Dr. Furman's engagement.
2. All reports, analyses, data compilations, survey instruments, respondent data, and related work product of Dr. Elaine Furman and Lakeshore Brand Consulting LLC, to the extent such materials are not protected by the attorney work-product doctrine or other applicable privilege.
MCB reserves the right to identify additional documents, ESI, and tangible things as investigation and discovery proceed, and will supplement these disclosures in accordance with Rule 26(e).
III. COMPUTATION OF DAMAGES — FRCP 26(a)(1)(A)(iii)
Pursuant to Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure, MCB provides the following computation of each category of damages claimed, together with an identification of the documents and other evidentiary material on which each computation is based. MCB notes that discovery is in its early stages, and the damage computations set forth below are preliminary in nature and based upon information presently available to MCB. MCB expressly reserves the right to supplement and amend these computations as additional information is obtained, including through discovery of Brindoval's financial records, sales data, and internal business documents.
A. Lost Profits
MCB contends that Brindoval's sale of MERIDIAN FRESH products directly diverted sales from MCB's MERIDIAN cleaning product line in the geographic markets where both products are sold and on the online channels where both products compete. MCB's fiscal year 2022 MERIDIAN cleaning line revenue was approximately $94.5 million. Based on information currently available to MCB, Brindoval's MERIDIAN FRESH product line generated approximately $6.8 million in gross revenue during its first five months on the market, from approximately July 2022 through November 2022. Annualized, this represents a projected revenue of approximately $16.3 million ($6.8 million ÷ 5 months × 12 months). MCB will provide a detailed lost-profits computation upon completion of expert analysis, but preliminary estimates attribute a significant portion of Brindoval's MERIDIAN FRESH sales to diversion from MCB's established MERIDIAN product line, given the overlapping product categories, distribution channels, and consumer demographics.
Documents Supporting This Computation: MCB's internal financial records, including quarterly and annual sales reports by product line; market share analyses prepared by MCB's brand management team; point-of-sale data from retail and e-commerce channels; and competitive intelligence reports. These documents are in MCB's possession at its headquarters and at the offices of its counsel.
B. Disgorgement of Defendant's Profits
Under Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a), MCB is entitled to recover Brindoval's profits attributable to the infringement. Based on information currently available, Brindoval's MERIDIAN FRESH product line generated approximately $6.8 million in gross revenue from July 2022 through November 2022. MCB will seek discovery of Brindoval's detailed cost data — including cost of goods sold, operating expenses, and other deductions — in order to calculate Brindoval's net profits attributable to the infringement. MCB reserves the right to update this computation upon receipt of Brindoval's financial records and upon completion of MCB's expert damages analysis. MCB further notes that under the burden-shifting framework of 15 U.S.C. § 1117(a), MCB is required to prove only Brindoval's gross revenue, while the burden to prove any deductible costs or expenses rests on Brindoval.
Documents Supporting This Computation: Publicly available financial information regarding Brindoval, including press releases, annual reports, and SEC filings (if applicable); financial information obtained through MCB's pre-suit investigation; and Brindoval's financial records to be obtained through discovery, including but not limited to Brindoval's responses to MCB's First Set of Interrogatories and First Set of Requests for Production of Documents.
C. Reasonable Royalty
In the alternative or in addition to lost profits and disgorgement of Brindoval's profits, MCB may seek damages measured by a reasonable royalty for Brindoval's unauthorized use of the MERIDIAN mark and confusingly similar trade dress. The royalty rate will be calculated by MCB's damages expert based on comparable licensing transactions in the household consumer products industry, established royalty rate benchmarks for consumer brand licenses, and a hypothetical negotiation analysis reflecting the royalty that a willing licensor and willing licensee would have agreed upon at the time Brindoval first adopted the MERIDIAN FRESH mark. MCB's preliminary analysis suggests that reasonable royalty rates for established consumer cleaning product brands typically range from 3% to 8% of net sales, depending on the strength and recognition of the licensed mark, the scope of the license, and other market factors.
Documents Supporting This Computation: MCB's licensing history (if any), including any trademark license agreements entered into by MCB for the MERIDIAN marks; industry licensing data and comparable transactions; royalty rate surveys and benchmarking studies; and expert analysis to be prepared by Dr. Elaine Furman of Lakeshore Brand Consulting LLC or another designated damages expert.
D. Corrective Advertising
MCB may seek damages for corrective advertising expenses that will be necessary to restore consumer associations with the MERIDIAN brand and to dispel the confusion caused by Brindoval's use of the MERIDIAN FRESH mark and confusingly similar teal-and-white trade dress. MCB's cumulative advertising spend of approximately $47.2 million from 2011 through 2022, averaging approximately $3.93 million per year, serves as a benchmark for evaluating the scale of the corrective advertising campaign that will be required. The computation of corrective advertising damages will be refined upon expert analysis, taking into account the duration and geographic scope of Brindoval's infringing use, the degree of consumer confusion established by survey evidence (31.4% net confusion rate), and the cost of corrective messaging across MCB's established advertising channels.
Documents Supporting This Computation: MCB's annual advertising and promotional expenditure records from 2011 through 2022; media plans and advertising contracts; the consumer confusion survey report prepared by Dr. Furman; and expert analysis regarding the scope and cost of a corrective advertising campaign.
E. Enhanced Damages and Attorney's Fees
MCB reserves the right to seek enhanced damages — including treble damages — under 15 U.S.C. § 1117(a), in the event the Court determines that such an award is warranted by the circumstances of this case, including but not limited to any evidence of willfulness, bad faith, or deliberate infringement by Brindoval. MCB further reserves the right to seek an award of reasonable attorney's fees under 15 U.S.C. § 1117(a) in the event the Court finds this to be an "exceptional case" within the meaning of the statute. MCB's entitlement to enhanced damages and attorney's fees will be addressed at the appropriate stage of this litigation.
F. Reservation. Discovery in this action is ongoing and in its early stages. MCB expressly reserves the right to supplement and amend its damage computations as additional information is obtained through the discovery process, including through Brindoval's responses to MCB's First Set of Interrogatories, MCB's First Set of Requests for Production of Documents, and any depositions of Brindoval's officers, employees, and agents. MCB further reserves the right to designate expert witnesses to provide detailed damages analyses and to supplement these disclosures to reflect such expert testimony.
IV. INSURANCE AGREEMENTS — FRCP 26(a)(1)(A)(iv)
Pursuant to Rule 26(a)(1)(A)(iv) of the Federal Rules of Civil Procedure, MCB identifies the following insurance agreements under which an insurance business entity may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse MCB for payments made to satisfy a judgment:
1. Comprehensive General Liability Insurance Policy. MCB maintains a comprehensive general liability insurance policy issued by Sentinel Indemnity Insurance Company, Policy No. GL-2022-40871, with coverage limits of $5,000,000 per occurrence and $10,000,000 in the aggregate, effective January 1, 2022, through December 31, 2022, and renewed for the policy period January 1, 2023, through December 31, 2023. This policy may provide coverage for certain defense costs or indemnification obligations arising out of advertising injury or intellectual property claims asserted against MCB, including any counterclaims that may be asserted by Brindoval in this action. MCB will make a copy of this policy available for inspection and copying by Brindoval's counsel upon reasonable request.
2. Directors and Officers Liability Insurance Policy. MCB also maintains a directors and officers liability insurance policy issued by Apex Professional Lines Insurance Co., Policy No. DO-2022-11593, which may be potentially implicated by counterclaims asserted against MCB's officers or directors in connection with this litigation. MCB will make a copy of this policy available for inspection and copying by Brindoval's counsel upon reasonable request.
MCB is not currently aware of any other insurance agreement under which an insurer may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse MCB for payments made to satisfy a judgment. MCB reserves the right to supplement this disclosure if additional potentially responsive insurance agreements are identified.
V. RESERVATION OF RIGHTS AND GENERAL QUALIFICATIONS
These Initial Disclosures are based on information currently known to MCB and its counsel, Calderwood & Harkness LLP, as of January 23, 2023. Investigation and discovery in this action are continuing, and MCB anticipates that additional responsive information will be identified as the case proceeds.
MCB expressly reserves the right to supplement or amend these disclosures as required by Rule 26(e) of the Federal Rules of Civil Procedure and as additional information becomes available through the discovery process, including through document production, interrogatory responses, depositions, and expert analysis.
These disclosures are made without prejudice to, and MCB expressly reserves, MCB's right to assert any and all objections to discovery requests, including but not limited to objections based on the attorney-client privilege, the work-product doctrine, the common-interest privilege, or any other applicable privilege, protection, or limitation recognized under federal or state law.
MCB does not, by making these disclosures, concede that any information, document, or category of documents identified herein is relevant, material, or admissible at trial. MCB specifically reserves all evidentiary objections, including objections based on relevance, hearsay, authentication, and any other applicable rule of evidence.
These disclosures do not purport to identify every individual who may have discoverable information, every document that may be used to support MCB's claims or defenses, or every detail of MCB's damages computation. MCB has made a reasonable inquiry based on the information available as of the date hereof and will continue to review and supplement these disclosures in good faith as this litigation progresses.
VI. SIGNATURE
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Responsible Partner
Christy Bauer Lead Associate
1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 506-7000 Facsimile: (212) 506-7001
Email: anglo@calderwoodharkness.com
Email: cbauer@calderwoodharkness.com
Attorneys for Plaintiff Meridian Consumer Brands LLC
Matter No. 1011-00003
Dated: January 23, 2023
CERTIFICATE OF SERVICE
I, Christy Bauer, hereby certify that on January 23, 2023, a true and correct copy of the foregoing Plaintiff Meridian Consumer Brands LLC's Initial Disclosures Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure was served upon counsel for Defendant Brindoval Home Goods Inc. via the Court's Electronic Case Filing ("ECF") system and by electronic mail at the following addresses:
Gregory T. Halverson, Esq. Megan Janssen, Esq. David Kowalski, Esq. HALVERSON McKAY & PRUITT LLP 225 South Sixth Street, Suite 4200 Minneapolis, Minnesota 55402 Telephone: (612) 444-8200
Email: ghalverson@hmplaw.com
Email: mjanssen@hmplaw.com
Email: dkowalski@hmplaw.com
________________________________________
Christy Bauer CALDERWOOD & HARKNESS LLP
MERIDIAN CONSUMER BRANDS LLC,
Plaintiff, | Case No. 1:22-cv-09483
v. | (Hon. Patricia M. Albright)
BRINDOVAL HOME GOODS INC.,
Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

V. RESERVATION OF RIGHTS AND GENERAL QUALIFICATIONS

VI. SIGNATURE

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

MERIDIAN CONSUMER BRANDS LLC,

BRINDOVAL HOME GOODS INC.,

Record

Parties

Dates

Amounts