litigation-hold-letter-to-apex.docx

1011-00004 · Meridian Consumer Brands LLC · Correspondence

litigation-hold-letter-to-apex.docx DOCUMENT Litigation

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CALDERWOOD & HARKNESS LLP Attorneys at Law 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 554-8000 Facsimile: (212) 554-8001 www.calderwoodharkness.com

September 10, 2025

VIA OVERNIGHT DELIVERY AND EMAIL (hbriggs@caldwellbriggsnolan.com)

Harrison Briggs, Esq. Caldwell, Briggs & Nolan LLP 200 Park Avenue, 42nd Floor New York, New York 10166

Re: Preservation of Documents and Electronically Stored Information — *Meridian Consumer Brands LLC v. Apex Naturals Inc.*

Calderwood & Harkness LLP Matter No. 1011-00004

Dear Mr. Briggs:

I. Introduction and Purpose of This Letter

This firm represents Meridian Consumer Brands LLC ("Meridian" or "MCB"), a Delaware limited liability company with its principal place of business at 410 West 34th Street, 18th Floor, New York, New York 10001, in connection with claims arising from the false and misleading advertising campaign disseminated by your client, Apex Naturals Inc. ("Apex"), a Delaware corporation headquartered at 75 Commerce Boulevard, Suite 300, Parsippany, New Jersey 07054.

The purpose of this letter is to constitute a formal demand that Apex immediately implement a comprehensive litigation hold to preserve all documents, electronically stored information ("ESI"), and tangible things relevant to the anticipated litigation described herein. This demand is made in accordance with Apex's legal obligations under federal common law, the Federal Rules of Civil Procedure, and applicable state law, and it is directed to Apex through your firm as its counsel of record in this matter.

Meridian intends to file a verified complaint and an accompanying motion for a preliminary injunction against Apex in the United States District Court for the Southern District of New York on or about September 26, 2025. The claims to be asserted will arise under, among other authorities:

(a) Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for false advertising;

(b) New York General Business Law § 349, prohibiting deceptive acts and practices;

(d) common-law unfair competition; and

(e) tortious interference with business relations.

We note that Apex's obligation to preserve relevant evidence arises immediately upon the reasonable anticipation of litigation, and that such anticipation existed no later than June 18, 2025, when Meridian's General Counsel, Derek Cho, transmitted a detailed cease-and-desist letter to Apex's General Counsel, Tanya Fischetti, demanding that Apex retract and discontinue its false advertising campaign. That obligation was further confirmed and reinforced by Apex's July 3, 2025 response, transmitted through your firm, in which Apex denied Meridian's allegations and refused to modify its campaign. Accordingly, Apex's preservation obligations have been in effect for nearly three months, and any destruction of relevant evidence occurring after June 18, 2025 is subject to potential sanctions and remedial measures.

We expect your client's full and immediate compliance with the demands set forth below.

II. Background and Nature of the Dispute

To provide context for the scope of the preservation obligations described herein, we summarize the factual background and nature of the claims Meridian intends to pursue.

A. The PuraClear Truth Campaign. On or about June 2, 2025, Apex launched a nationwide comparative advertising campaign branded "The PuraClear Truth" (referred to internally at Apex as "Project Clarity"), which makes false and misleading superiority claims about Apex's PuraClear acne-treatment product line relative to Meridian's flagship DermaTrūe product family. The DermaTrūe product family has been a market-leading acne-treatment brand for over a decade, with significant consumer goodwill, brand recognition, and retail partnerships throughout the United States.

B. Media Channels and Dissemination. The PuraClear Truth campaign has been disseminated broadly across multiple media channels, including but not limited to:

(i) national television advertisements, in both 30-second and 60-second spot formats, aired across major broadcast and cable networks;

(ii) digital video advertisements distributed via Crowne Albany Partners LLC, Dunmore & Co., and Northpoint Services Inc. Reels;

(iii) in-store point-of-sale displays placed at major national drugstore chains and mass-market retailers;

(iv) print advertisements placed in leading consumer magazines; and

(v) dedicated content on the Apex corporate website at www.apexnaturals.com/puraclear-truth, including an interactive comparison tool.

Upon information and belief, Apex's total media expenditure on the PuraClear Truth campaign between June and August 2025 was approximately $23.0 million, comprising approximately $14.3 million in national television advertising spending and approximately $8.7 million in digital and social media spending. The campaign's reach has been extensive, with estimated aggregate media impressions numbering in the hundreds of millions.

C. False and Misleading Claims. The PuraClear Truth campaign makes at least three distinct categories of false and misleading claims, each of which is independently actionable:

(1) Fabricated Clinical Superiority Claim. The campaign prominently asserts that "PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment," citing as authority a purported study identified as "Guerrero et al., 2024, Independent Dermatological Review." This claim is false. Meridian has conducted an exhaustive search and determined that no study by that name exists in any peer-reviewed journal, nor has any publication titled Independent Dermatological Review published any article under that citation. Upon information and belief, the purported "study" is based on a non-blinded, 22-participant pilot study conducted without a control group, without randomization, and without adherence to accepted clinical trial standards. The study was designed, supervised, or directed by Dr. Simon Guerrero, Apex's Vice President of Product Development, and does not constitute independent scientific research by any reasonable definition. The presentation of this pilot study as a peer-reviewed, independent clinical finding is a deliberate and material misrepresentation intended to deceive consumers and the trade.

(2) Misleading Price Comparison. The campaign makes a prominent price-comparison claim, stating "just $12.99 vs. $28.99 for a comparable DermaTrūe kit," accompanied by side-by-side product imagery designed to convey that PuraClear is significantly less expensive than DermaTrūe. This comparison is materially misleading because it compares a single 1.0 oz. PuraClear Spot Treatment tube (priced at $12.99 per ounce) to the three-piece DermaTrūe Complete Acne System kit, which contains 5.2 oz. of product across three items (priced at approximately $5.57 per ounce). When compared on an equivalent per-ounce basis — the standard metric in the personal care industry — PuraClear is actually more than double the per-ounce price of DermaTrūe. The campaign's omission of per-ounce pricing and its deliberate selection of non-comparable product configurations renders the comparison deceptive and misleading.

(3) False "Clean" Ingredients Claim. The campaign states, "Unlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances," conveying the false impression that DermaTrūe products contain parabens, sulfates, or synthetic fragrances. In fact, Meridian's reformulated 2024 product line, branded "DermaTrūe Pure," is entirely free of parabens, sulfates, and synthetic fragrances. This reformulation was completed and brought to market in November 2024, approximately seven months prior to the launch of Apex's campaign. DermaTrūe Pure's formulation has been independently verified by Beacon Scientific Laboratories LLC (Lab Report No. BSL-2025-0412, dated March 15, 2025). Apex's claim that DermaTrūe products contain these ingredients is simply false.

D. NAD Proceedings. On July 22, 2025, Meridian filed a formal complaint with the National Advertising Division ("NAD") of the BBB National Programs, which was assigned Case Reference No. NAD-2025-01847. After review of the parties' initial submissions, the NAD issued a preliminary recommendation on August 15, 2025, concluding that Apex should discontinue or substantively modify both the clinical superiority claim and the price-comparison claim. Apex publicly stated that it would appeal the NAD's recommendation and declined to modify or withdraw the campaign in the interim. The campaign continues to run as of the date of this letter.

E. Damages to Meridian. As a direct and proximate result of Apex's false and misleading campaign, Meridian has suffered, and continues to suffer, significant and quantifiable economic harm. Meridian's DermaTrūe product line revenue declined from $36.8 million in the third quarter of fiscal year 2024 (Q3 2024) to $29.4 million in the third quarter of fiscal year 2025 (Q3 2025) — a decline of $7.4 million, representing a 20.1% year-over-year revenue decrease. This precipitous decline directly coincides with the launch and continuation of the PuraClear Truth campaign. Additionally, Kingsley Drug Stores LLC — one of Meridian's largest retail partners — notified Meridian on August 5, 2025, of its intention to reduce DermaTrūe shelf space by 30% effective October 1, 2025, citing competitive pressure attributable to the PuraClear Truth campaign. Meridian estimates the annual revenue impact of the Kingsley shelf-space reduction alone to be approximately $4.1 million. These damages are ongoing and continue to accrue with each additional day that the false campaign remains in circulation.

III. Preservation Obligations Under Law

We direct your client's attention to its well-established legal obligation to preserve all documents, ESI, and tangible things relevant to the claims and defenses in this matter. The duty to preserve arises under federal common law and is codified and reinforced by the Federal Rules of Civil Procedure, including in particular Rule 37(e), which governs the failure to preserve ESI that should have been preserved in the anticipation or conduct of litigation.

As the courts in this Circuit have repeatedly recognized, the duty to preserve relevant evidence attaches when a party reasonably anticipates litigation. See Zubulake v. Ashgrove Trust Bank, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) ("Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). That obligation extends to all documents and ESI within a party's possession, custody, or control, including materials held by agents and third-party vendors acting on the party's behalf.

In this case, Apex's preservation obligation arose no later than June 18, 2025, the date on which Meridian's General Counsel transmitted a detailed cease-and-desist letter to Apex's General Counsel identifying the specific false advertising claims at issue and expressly reserving Meridian's right to pursue litigation. The obligation was further confirmed and reinforced no later than July 3, 2025, when your firm responded to the cease-and-desist letter on Apex's behalf, denying Meridian's allegations and demonstrating that Apex and its counsel were fully aware of the potential for litigation. From those dates forward, Apex has been under an affirmative duty to identify, locate, and preserve all potentially relevant evidence.

This preservation obligation extends to Apex and to all of its agents, employees, officers, directors, and third-party vendors acting on Apex's behalf, including but not limited to Brightline Creative Partners LLC ("Brightline"), the advertising agency that conceived, developed, and produced creative assets for the PuraClear Truth campaign.

We emphasize that a failure to preserve relevant evidence may result in serious consequences, including the imposition of adverse-inference instructions, spoliation sanctions, case-dispositive sanctions, monetary penalties, and such other remedies as may be available under Federal Rule of Civil Procedure 37(e)(1) and (e)(2), as well as under the Court's inherent authority to manage litigation and impose sanctions for discovery abuse. See, e.g., Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).

IV. Specific Categories of Documents and ESI to Be Preserved

Meridian demands the immediate preservation of the following categories of documents and ESI, in their entirety, including all drafts, versions, revisions, attachments, enclosures, and associated metadata. The term "documents" as used herein includes all tangible and electronic records in any format, including but not limited to paper documents, electronic files, emails, text messages, instant messages, voice messages, photographs, videos, audio recordings, databases, spreadsheets, presentations, and any other medium by which information is recorded or stored.

A. Campaign Materials and Creative Assets

All documents, files, and materials relating to "The PuraClear Truth" campaign (also known as "Project Clarity"), including but not limited to: television commercial scripts and storyboards; final video files in all formats for both 30-second and 60-second television spots; digital video assets created for or distributed on Crowne Albany Partners LLC, Dunmore & Co., Northpoint Services Inc. Reels, or any other digital or social media platform; social media posts, captions, and associated content; print advertisement layouts, proofs, and final published versions; in-store point-of-sale display designs, mockups, and specifications; all website content from www.apexnaturals.com/puraclear-truth, including HTML source code, page screenshots, interactive comparison tools, and archived versions; all creative briefs, strategy documents, positioning statements, and brand guidelines associated with the campaign; and all drafts, revisions, and versions of each of the foregoing.

B. Communications with Brightline Creative Partners LLC

All communications, in any form, between any Apex employee, officer, director, or representative and any employee, officer, or representative of Brightline Creative Partners LLC, including but not limited to Owen Prescott, Chief Creative Officer, relating in whole or in part to the conception, development, review, approval, modification, or dissemination of the PuraClear Truth campaign. This includes all emails, letters, memoranda, text messages, instant messages, Meridian Solutions or Northgate Data Systems messages, video conference recordings and transcripts, meeting notes, calendar invitations, call logs, and any other form of written, electronic, or recorded communication. This category also encompasses all creative briefs, strategy decks, media plans, production schedules, vendor invoices, statements of work, and deliverables exchanged between Apex and Brightline.

C. Clinical Study Data and Scientific Substantiation

All documents, data, protocols, reports, analyses, correspondence, and communications of any kind relating to any clinical study, clinical trial, pilot study, observational study, laboratory test, or other form of testing or evaluation of PuraClear products, including but not limited to the study cited in the campaign materials as "Guerrero et al., 2024, Independent Dermatological Review." This includes, without limitation: all raw data and datasets; participant recruitment records and consent forms; study protocols and amendments; blinding and randomization methodologies (or records reflecting the absence thereof); sample size determinations and justifications; control-group compositions and methodologies; statistical analyses and underlying calculations; final study reports and draft reports; internal memoranda, emails, or other communications discussing study design, methodology, findings, or limitations; and any submissions to, correspondence with, or rejections from any scientific journal, peer-review body, institutional review board, or publication.

In addition, Meridian demands preservation of all documents relating to any comparison testing, benchmarking, or head-to-head evaluation between PuraClear products and DermaTrūe products or any other competing product, regardless of whether such testing was conducted in connection with the PuraClear Truth campaign.

D. Internal Communications Among Key Personnel

All communications, in any form, among, between, or involving any of the following Apex personnel concerning the PuraClear Truth campaign, DermaTrūe products, competitive strategy, comparative advertising, or any of the specific claims made in the campaign, including but not limited to the clinical superiority claim, the price-comparison claim, and the "clean" ingredients claim:

(i) Marcus Devlin, Chief Executive Officer and Founder;

(ii) Rachel Emory, Chief Marketing Officer;

(iii) Dr. Simon Guerrero, Vice President, Product Development; and

(iv) Tanya Fischetti, General Counsel.

This category includes all emails, memoranda, text messages, instant messages, Meridian Solutions or Northgate Data Systems messages, handwritten notes, voicemails, video conference recordings and transcripts, and any other form of communication. This preservation obligation encompasses communications among the named individuals, as well as communications between any named individual and any other Apex employee, officer, director, board member, outside consultant, advisor, or third party.

E. Campaign Performance and Media Analytics

All data, reports, dashboards, analyses, summaries, and presentations relating to the performance and effectiveness of the PuraClear Truth campaign, including but not limited to: total media impressions; reach and frequency data; click-through rates; engagement metrics (likes, shares, comments, saves, views); conversion rates; cost-per-click and cost-per-impression data; A/B testing results and test parameters; audience demographic and psychographic data; geographic targeting data; media spend reports broken down by channel (television, digital, social, print, in-store, and website); return-on-investment analyses; attribution modeling data; and any internal or third-party reports assessing the impact, awareness, or persuasiveness of the campaign.

F. PuraClear Sales and Financial Data

All sales data, revenue reports, financial statements, financial analyses, margin analyses, unit-volume data, market-share analyses, forecasts, budgets, variance analyses, and projections for the PuraClear product line, including but not limited to data for the first quarter of 2025 (Q1 2025), the second quarter of 2025 (Q2 2025), the third quarter of 2025 (Q3 2025), and the full fiscal year 2024 (FY 2024). This category also includes any analyses or reports comparing pre-campaign and post-campaign sales trends, customer acquisition or retention data, and any documents calculating, estimating, or analyzing the incremental revenue, profit, or market share attributable to the PuraClear Truth campaign.

G. Pricing and Product Comparison Information

All documents relating to the pricing of PuraClear products and DermaTrūe products, including but not limited to: competitive pricing analyses; price-comparison charts; retail pricing agreements and suggested retail price schedules; unit-size analyses; per-ounce and per-unit cost calculations; documents discussing the selection of the $12.99 PuraClear Spot Treatment (1.0 oz.) and the $28.99 DermaTrūe Complete Acne System (5.2 oz.) for comparison in the campaign; and any internal deliberations, analyses, or communications concerning the methodology, accuracy, or fairness of the price comparison presented in the PuraClear Truth campaign.

H. Ingredient and Formulation Information

All documents relating to the ingredient composition and formulation of PuraClear products, DermaTrūe products, or any competing product analyzed or referenced in connection with the PuraClear Truth campaign, including but not limited to: product specifications and formulation sheets; ingredient lists and safety data; certificates of analysis; any internal testing or evaluation of ingredient claims; any third-party laboratory reports; and any documents discussing, analyzing, or referencing DermaTrūe's reformulated "DermaTrūe Pure" product line, including its paraben-free, sulfate-free, and synthetic-fragrance-free attributes, and including any awareness by Apex of DermaTrūe Pure's reformulation prior to or during the campaign.

I. Communications with Retailers, Distributors, and Trade Partners

All communications with retailers, distributors, wholesalers, trade partners, and any other entities in the distribution chain concerning the PuraClear Truth campaign, PuraClear products, DermaTrūe products, or the competitive positioning of either brand, including but not limited to all communications with Kingsley Drug Stores LLC and any other major retail chain (such as, without limitation, Adriatic Industries, Walgreens Boots Alliance, Inc., Walmart Inc., and target). This includes any communications regarding shelf-space allocation, planogram changes, co-marketing programs, trade promotions, retailer incentives, or competitive delisting or deauthorization decisions.

J. Pre-Litigation Correspondence and Legal Documents

All correspondence between Meridian (including Derek Cho, General Counsel) and Apex (including Tanya Fischetti, General Counsel) and between Calderwood & Harkness LLP and Caldwell, Briggs & Nolan LLP concerning any aspect of the dispute that is the subject of this letter.

All documents relating to Meridian's complaint before the National Advertising Division of the BBB National Programs (Case Ref. NAD-2025-01847), including Apex's written submissions, responses, and supporting documentation filed with the NAD, as well as all internal preparation materials, drafts, strategy memoranda, and correspondence related to the NAD proceeding.

All legal memoranda, opinion letters, legal analyses, or assessments concerning the legality, regulatory compliance, or defensibility of the claims made in the PuraClear Truth campaign, subject to any valid claim of attorney-client privilege or work-product protection, which must be identified with specificity on a privilege log if asserted.

K. Document Retention and Destruction Policies

All corporate document-retention policies, information governance policies, ESI management protocols, backup schedules, auto-deletion settings, and records-management guidelines currently in effect at Apex or that were in effect at any time from January 1, 2024 to the present, together with any modifications, amendments, or suspensions of such policies made since June 2, 2025 — the date of the campaign launch — including any litigation-hold notices previously issued and the dates, recipients, and scope of any such holds.

L. Electronic Systems and Data Sources

Preservation of all data residing on or within the following categories of electronic systems and data sources, to the extent such systems contain documents or ESI falling within any of the categories described above:

(i) email systems, including all hosted, on-premises, and cloud-based email platforms (e.g., Strathmore Data Systems, Ashgrove Software, Crestline Software);

(ii) instant messaging and collaboration platforms, including Meridian Solutions, Northgate Data Systems, or any equivalent application;

(iii) shared network drives and cloud storage repositories, including Aldermere Systems, Hollowell Health IT, Larkspur Technologies, box, or any equivalent platform;

(iv) mobile device data, including text messages (SMS and MMS), Westmark Software, Meridian Services Inc., Signal, Kestrel Data Systems, and any other messaging application, on both company-issued and personal devices used for business purposes by any relevant custodian;

(v) customer relationship management ("CRM") systems;

(vi) enterprise resource planning ("ERP") and financial systems;

(vii) marketing analytics platforms, including Ostrander Services Inc., Stonefield Technologies, social media insights dashboards, and any proprietary or third-party analytics tools;

(viii) social media management tools, including Cascade Technologies, Dunmore Technologies, or any equivalent platform;

(ix) backup tapes, disaster-recovery archives, and any other archival data repositories; and

(x) any personal devices, including personal laptops, personal mobile phones, tablets, or home computers, used by any relevant custodian for any business purpose related to the matters at issue.

V. Identification of Key Custodians

Meridian demands that the litigation hold be immediately communicated to, and that preservation be fully implemented for, at minimum, each of the following custodians:

1. Marcus Devlin — Chief Executive Officer and Founder, Apex Naturals Inc.

2. Rachel Emory — Chief Marketing Officer, Apex Naturals Inc.

3. Dr. Simon Guerrero — Vice President, Product Development, Apex Naturals Inc.

4. Tanya Fischetti — General Counsel, Apex Naturals Inc.

5. Any other Apex employee, officer, contractor, or agent who was involved in the conception, planning, approval, execution, monitoring, or evaluation of the PuraClear Truth campaign, including but not limited to personnel in Apex's marketing, product development, legal, finance, sales, and regulatory departments.

6. Any Apex information technology personnel responsible for managing, maintaining, or administering document-retention, backup, auto-deletion, or data-archival policies and systems.

This list is not intended to be exhaustive. Apex is obligated to identify all individuals who may possess relevant information and ensure that their documents and ESI are preserved. We reserve the right to identify additional custodians as discovery proceeds.

VI. Suspension of Routine Destruction

Meridian demands that Apex immediately and completely suspend all routine document destruction, auto-deletion, data purging, and recycling protocols — whether automated or manual — to the extent that such protocols would affect any of the categories of documents and ESI described in Section IV above. This includes, without limitation, the immediate suspension of:

(a) email auto-archive and auto-deletion settings, including any policies that automatically delete emails after a specified retention period;

(b) Meridian Solutions, Northgate Data Systems, or equivalent messaging platform retention and deletion policies;

(d) scheduled purging of shared drives, cloud storage repositories, or archival systems; and

(e) any mobile device wiping, resetting, or recycling procedures.

Meridian further demands that Apex take affirmative, documented steps to prevent the loss, alteration, overwriting, or destruction of relevant ESI, including by issuing detailed written hold notices to all relevant custodians and to all IT personnel with administrative access to the systems and data sources identified herein. Such written hold notices should explain the nature of the preservation obligation, identify the categories of materials to be preserved, and instruct recipients that they must not delete, discard, modify, or transfer any potentially relevant documents or ESI pending further notice.

VII. Third-Party Preservation

Meridian further demands that Apex take all steps necessary and appropriate to preserve documents and ESI in the possession, custody, or control of third parties acting on Apex's behalf or at Apex's direction, including specifically:

(a) Brightline Creative Partners LLC, located at 55 Washington Street, Suite 900, Brooklyn, New York 11201, which served as the advertising agency responsible for the creative development and production of the PuraClear Truth campaign;

(b) any media buying agencies engaged by or on behalf of Apex in connection with the placement, scheduling, or distribution of campaign advertisements;

(c) any public relations firms retained by or on behalf of Apex in connection with the campaign or the dispute with Meridian;

(d) any digital marketing vendors, social media management agencies, or analytics consultants engaged in the execution, monitoring, or performance analysis of the campaign; and

(e) any other consultants, vendors, or service providers in possession of documents or ESI relating to the matters described herein.

Apex should immediately communicate preservation obligations to each such third party in writing and take all steps reasonably necessary to ensure that relevant materials in their possession are identified and preserved.

VIII. Spoliation Warning

We wish to make unmistakably clear the consequences that will follow if Apex fails to comply with its preservation obligations.

If Apex fails to preserve the documents and ESI identified in this letter, or if relevant evidence is destroyed, lost, altered, or rendered inaccessible after Apex's preservation obligation arose, Meridian will aggressively pursue all available sanctions and remedies, including but not limited to:

(a) adverse-inference instructions to the jury under Federal Rule of Civil Procedure 37(e)(2), permitting the trier of fact to presume that destroyed evidence was unfavorable to Apex;

(b) curative measures under Federal Rule of Civil Procedure 37(e)(1), including the preclusion of evidence or argument, the reopening of discovery, and the imposition of additional obligations to restore or reconstruct lost information;

(c) monetary sanctions, including the award to Meridian of attorneys' fees and costs incurred as a result of Apex's failure to preserve;

(d) default judgment, issue preclusion, claim preclusion, or other case-dispositive sanctions under the Court's inherent authority; and

(e) any and all other remedies available under applicable law, including referral of counsel for disciplinary proceedings if the failure to preserve results from willful or negligent noncompliance by Apex's legal representatives.

Meridian will not hesitate to seek to hold Apex and its counsel fully accountable for any destruction, loss, alteration, or spoliation of evidence that occurs after Apex's preservation obligations arose on or about June 18, 2025. This letter, and Apex's response (or failure to respond), will be placed before the Court in connection with any such application.

IX. Request for Confirmation

We request that Caldwell, Briggs & Nolan LLP confirm in writing, no later than September 17, 2025 (i.e., within seven calendar days of the date of this letter), that:

(1) Apex has implemented a comprehensive litigation hold covering all categories of documents and ESI described in this letter;

(2) detailed, written hold notices have been circulated to all relevant custodians, including at minimum Marcus Devlin, Rachel Emory, Dr. Simon Guerrero, and Tanya Fischetti, as well as all other individuals identified through Apex's reasonable investigation as possessing potentially relevant information;

(3) all auto-deletion, routine destruction, and data-purging protocols have been suspended with respect to all relevant data sources and systems;

(4) Apex has taken affirmative steps to preserve documents and ESI in the possession of third parties, including specifically Brightline Creative Partners LLC, and can confirm that written preservation notices have been issued to each such third party; and

(5) the identity of all custodians who have received the litigation hold notice, together with their titles, departments, and the dates on which the hold was communicated.

In the event that Apex's preservation efforts are not yet complete as of September 17, 2025, we expect a written explanation of the steps taken to date, the steps remaining, and the anticipated date of full compliance. Silence or a failure to respond will be treated as evidence of noncompliance and will be brought to the Court's attention at the earliest appropriate juncture.

X. Reservation of Rights

This letter is issued without prejudice to any and all of Meridian's rights, claims, demands, and remedies, whether at law or in equity, all of which are expressly and fully reserved. Nothing in this letter shall be construed as a waiver, release, or limitation of any right or remedy available to Meridian under the Lanham Act, New York General Business Law, common law, or any other applicable statute, regulation, or legal authority.

This letter does not constitute, and is not intended to constitute, a complete or exhaustive identification of all categories of documents and ESI that may be relevant to the anticipated litigation. Meridian expressly reserves the right to supplement, modify, and expand these preservation demands at any time, including after the commencement of litigation and the entry of a discovery order by the Court.

We trust that you and your client appreciate the seriousness of the preservation obligations outlined herein. We urge your prompt attention to this matter and look forward to receiving your written confirmation no later than September 17, 2025. If you have any questions regarding the scope of this letter or the categories of materials to be preserved, please do not hesitate to contact me directly at the address below.

Linda Osei, Partner Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 554-8014

Email: losei@calderwoodharkness.com

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei Partner

cc:

Derek Cho, General Counsel, Meridian Consumer Brands LLC (via email) Priya Anand, Calderwood & Harkness LLP (via email) Patrick Gallagher, Calderwood & Harkness LLP (via email)

CALDERWOOD & HARKNESS LLP Attorneys at Law 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 554-8000 Facsimile: (212) 554-8001 www.calderwoodharkness.com
September 10, 2025
VIA OVERNIGHT DELIVERY AND EMAIL (hbriggs@caldwellbriggsnolan.com)
Harrison Briggs, Esq. Caldwell, Briggs & Nolan LLP 200 Park Avenue, 42nd Floor New York, New York 10166
Re: Preservation of Documents and Electronically Stored Information — *Meridian Consumer Brands LLC v. Apex Naturals Inc.*
Calderwood & Harkness LLP Matter No. 1011-00004
Dear Mr. Briggs:
I. Introduction and Purpose of This Letter
This firm represents Meridian Consumer Brands LLC ("Meridian" or "MCB"), a Delaware limited liability company with its principal place of business at 410 West 34th Street, 18th Floor, New York, New York 10001, in connection with claims arising from the false and misleading advertising campaign disseminated by your client, Apex Naturals Inc. ("Apex"), a Delaware corporation headquartered at 75 Commerce Boulevard, Suite 300, Parsippany, New Jersey 07054.
The purpose of this letter is to constitute a formal demand that Apex immediately implement a comprehensive litigation hold to preserve all documents, electronically stored information ("ESI"), and tangible things relevant to the anticipated litigation described herein. This demand is made in accordance with Apex's legal obligations under federal common law, the Federal Rules of Civil Procedure, and applicable state law, and it is directed to Apex through your firm as its counsel of record in this matter.
Meridian intends to file a verified complaint and an accompanying motion for a preliminary injunction against Apex in the United States District Court for the Southern District of New York on or about September 26, 2025. The claims to be asserted will arise under, among other authorities:
(a) Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for false advertising;
(b) New York General Business Law § 349, prohibiting deceptive acts and practices;
(c) New York General Business Law § 350, prohibiting false advertising;
(d) common-law unfair competition; and
(e) tortious interference with business relations.
We note that Apex's obligation to preserve relevant evidence arises immediately upon the reasonable anticipation of litigation, and that such anticipation existed no later than June 18, 2025, when Meridian's General Counsel, Derek Cho, transmitted a detailed cease-and-desist letter to Apex's General Counsel, Tanya Fischetti, demanding that Apex retract and discontinue its false advertising campaign. That obligation was further confirmed and reinforced by Apex's July 3, 2025 response, transmitted through your firm, in which Apex denied Meridian's allegations and refused to modify its campaign. Accordingly, Apex's preservation obligations have been in effect for nearly three months, and any destruction of relevant evidence occurring after June 18, 2025 is subject to potential sanctions and remedial measures.
We expect your client's full and immediate compliance with the demands set forth below.
II. Background and Nature of the Dispute
To provide context for the scope of the preservation obligations described herein, we summarize the factual background and nature of the claims Meridian intends to pursue.
A. The PuraClear Truth Campaign. On or about June 2, 2025, Apex launched a nationwide comparative advertising campaign branded "The PuraClear Truth" (referred to internally at Apex as "Project Clarity"), which makes false and misleading superiority claims about Apex's PuraClear acne-treatment product line relative to Meridian's flagship DermaTrūe product family. The DermaTrūe product family has been a market-leading acne-treatment brand for over a decade, with significant consumer goodwill, brand recognition, and retail partnerships throughout the United States.
B. Media Channels and Dissemination. The PuraClear Truth campaign has been disseminated broadly across multiple media channels, including but not limited to:
(i) national television advertisements, in both 30-second and 60-second spot formats, aired across major broadcast and cable networks;
(ii) digital video advertisements distributed via Crowne Albany Partners LLC, Dunmore & Co., and Northpoint Services Inc. Reels;
(iii) in-store point-of-sale displays placed at major national drugstore chains and mass-market retailers;
(iv) print advertisements placed in leading consumer magazines; and
(v) dedicated content on the Apex corporate website at www.apexnaturals.com/puraclear-truth, including an interactive comparison tool.
Upon information and belief, Apex's total media expenditure on the PuraClear Truth campaign between June and August 2025 was approximately $23.0 million, comprising approximately $14.3 million in national television advertising spending and approximately $8.7 million in digital and social media spending. The campaign's reach has been extensive, with estimated aggregate media impressions numbering in the hundreds of millions.
C. False and Misleading Claims. The PuraClear Truth campaign makes at least three distinct categories of false and misleading claims, each of which is independently actionable:
(1) Fabricated Clinical Superiority Claim. The campaign prominently asserts that "PuraClear reduced visible acne blemishes 47% faster than the leading DermaTrūe treatment," citing as authority a purported study identified as "Guerrero et al., 2024, Independent Dermatological Review." This claim is false. Meridian has conducted an exhaustive search and determined that no study by that name exists in any peer-reviewed journal, nor has any publication titled Independent Dermatological Review published any article under that citation. Upon information and belief, the purported "study" is based on a non-blinded, 22-participant pilot study conducted without a control group, without randomization, and without adherence to accepted clinical trial standards. The study was designed, supervised, or directed by Dr. Simon Guerrero, Apex's Vice President of Product Development, and does not constitute independent scientific research by any reasonable definition. The presentation of this pilot study as a peer-reviewed, independent clinical finding is a deliberate and material misrepresentation intended to deceive consumers and the trade.
(2) Misleading Price Comparison. The campaign makes a prominent price-comparison claim, stating "just $12.99 vs. $28.99 for a comparable DermaTrūe kit," accompanied by side-by-side product imagery designed to convey that PuraClear is significantly less expensive than DermaTrūe. This comparison is materially misleading because it compares a single 1.0 oz. PuraClear Spot Treatment tube (priced at $12.99 per ounce) to the three-piece DermaTrūe Complete Acne System kit, which contains 5.2 oz. of product across three items (priced at approximately $5.57 per ounce). When compared on an equivalent per-ounce basis — the standard metric in the personal care industry — PuraClear is actually more than double the per-ounce price of DermaTrūe. The campaign's omission of per-ounce pricing and its deliberate selection of non-comparable product configurations renders the comparison deceptive and misleading.
(3) False "Clean" Ingredients Claim. The campaign states, "Unlike DermaTrūe, PuraClear is 100% free of parabens, sulfates, and synthetic fragrances," conveying the false impression that DermaTrūe products contain parabens, sulfates, or synthetic fragrances. In fact, Meridian's reformulated 2024 product line, branded "DermaTrūe Pure," is entirely free of parabens, sulfates, and synthetic fragrances. This reformulation was completed and brought to market in November 2024, approximately seven months prior to the launch of Apex's campaign. DermaTrūe Pure's formulation has been independently verified by Beacon Scientific Laboratories LLC (Lab Report No. BSL-2025-0412, dated March 15, 2025). Apex's claim that DermaTrūe products contain these ingredients is simply false.
D. NAD Proceedings. On July 22, 2025, Meridian filed a formal complaint with the National Advertising Division ("NAD") of the BBB National Programs, which was assigned Case Reference No. NAD-2025-01847. After review of the parties' initial submissions, the NAD issued a preliminary recommendation on August 15, 2025, concluding that Apex should discontinue or substantively modify both the clinical superiority claim and the price-comparison claim. Apex publicly stated that it would appeal the NAD's recommendation and declined to modify or withdraw the campaign in the interim. The campaign continues to run as of the date of this letter.
E. Damages to Meridian. As a direct and proximate result of Apex's false and misleading campaign, Meridian has suffered, and continues to suffer, significant and quantifiable economic harm. Meridian's DermaTrūe product line revenue declined from $36.8 million in the third quarter of fiscal year 2024 (Q3 2024) to $29.4 million in the third quarter of fiscal year 2025 (Q3 2025) — a decline of $7.4 million, representing a 20.1% year-over-year revenue decrease. This precipitous decline directly coincides with the launch and continuation of the PuraClear Truth campaign. Additionally, Kingsley Drug Stores LLC — one of Meridian's largest retail partners — notified Meridian on August 5, 2025, of its intention to reduce DermaTrūe shelf space by 30% effective October 1, 2025, citing competitive pressure attributable to the PuraClear Truth campaign. Meridian estimates the annual revenue impact of the Kingsley shelf-space reduction alone to be approximately $4.1 million. These damages are ongoing and continue to accrue with each additional day that the false campaign remains in circulation.
III. Preservation Obligations Under Law
We direct your client's attention to its well-established legal obligation to preserve all documents, ESI, and tangible things relevant to the claims and defenses in this matter. The duty to preserve arises under federal common law and is codified and reinforced by the Federal Rules of Civil Procedure, including in particular Rule 37(e), which governs the failure to preserve ESI that should have been preserved in the anticipation or conduct of litigation.
As the courts in this Circuit have repeatedly recognized, the duty to preserve relevant evidence attaches when a party reasonably anticipates litigation. See Zubulake v. Ashgrove Trust Bank, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) ("Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). That obligation extends to all documents and ESI within a party's possession, custody, or control, including materials held by agents and third-party vendors acting on the party's behalf.
In this case, Apex's preservation obligation arose no later than June 18, 2025, the date on which Meridian's General Counsel transmitted a detailed cease-and-desist letter to Apex's General Counsel identifying the specific false advertising claims at issue and expressly reserving Meridian's right to pursue litigation. The obligation was further confirmed and reinforced no later than July 3, 2025, when your firm responded to the cease-and-desist letter on Apex's behalf, denying Meridian's allegations and demonstrating that Apex and its counsel were fully aware of the potential for litigation. From those dates forward, Apex has been under an affirmative duty to identify, locate, and preserve all potentially relevant evidence.
This preservation obligation extends to Apex and to all of its agents, employees, officers, directors, and third-party vendors acting on Apex's behalf, including but not limited to Brightline Creative Partners LLC ("Brightline"), the advertising agency that conceived, developed, and produced creative assets for the PuraClear Truth campaign.
We emphasize that a failure to preserve relevant evidence may result in serious consequences, including the imposition of adverse-inference instructions, spoliation sanctions, case-dispositive sanctions, monetary penalties, and such other remedies as may be available under Federal Rule of Civil Procedure 37(e)(1) and (e)(2), as well as under the Court's inherent authority to manage litigation and impose sanctions for discovery abuse. See, e.g., Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).
IV. Specific Categories of Documents and ESI to Be Preserved
Meridian demands the immediate preservation of the following categories of documents and ESI, in their entirety, including all drafts, versions, revisions, attachments, enclosures, and associated metadata. The term "documents" as used herein includes all tangible and electronic records in any format, including but not limited to paper documents, electronic files, emails, text messages, instant messages, voice messages, photographs, videos, audio recordings, databases, spreadsheets, presentations, and any other medium by which information is recorded or stored.
A. Campaign Materials and Creative Assets
All documents, files, and materials relating to "The PuraClear Truth" campaign (also known as "Project Clarity"), including but not limited to: television commercial scripts and storyboards; final video files in all formats for both 30-second and 60-second television spots; digital video assets created for or distributed on Crowne Albany Partners LLC, Dunmore & Co., Northpoint Services Inc. Reels, or any other digital or social media platform; social media posts, captions, and associated content; print advertisement layouts, proofs, and final published versions; in-store point-of-sale display designs, mockups, and specifications; all website content from www.apexnaturals.com/puraclear-truth, including HTML source code, page screenshots, interactive comparison tools, and archived versions; all creative briefs, strategy documents, positioning statements, and brand guidelines associated with the campaign; and all drafts, revisions, and versions of each of the foregoing.
B. Communications with Brightline Creative Partners LLC
All communications, in any form, between any Apex employee, officer, director, or representative and any employee, officer, or representative of Brightline Creative Partners LLC, including but not limited to Owen Prescott, Chief Creative Officer, relating in whole or in part to the conception, development, review, approval, modification, or dissemination of the PuraClear Truth campaign. This includes all emails, letters, memoranda, text messages, instant messages, Meridian Solutions or Northgate Data Systems messages, video conference recordings and transcripts, meeting notes, calendar invitations, call logs, and any other form of written, electronic, or recorded communication. This category also encompasses all creative briefs, strategy decks, media plans, production schedules, vendor invoices, statements of work, and deliverables exchanged between Apex and Brightline.
C. Clinical Study Data and Scientific Substantiation
All documents, data, protocols, reports, analyses, correspondence, and communications of any kind relating to any clinical study, clinical trial, pilot study, observational study, laboratory test, or other form of testing or evaluation of PuraClear products, including but not limited to the study cited in the campaign materials as "Guerrero et al., 2024, Independent Dermatological Review." This includes, without limitation: all raw data and datasets; participant recruitment records and consent forms; study protocols and amendments; blinding and randomization methodologies (or records reflecting the absence thereof); sample size determinations and justifications; control-group compositions and methodologies; statistical analyses and underlying calculations; final study reports and draft reports; internal memoranda, emails, or other communications discussing study design, methodology, findings, or limitations; and any submissions to, correspondence with, or rejections from any scientific journal, peer-review body, institutional review board, or publication.
In addition, Meridian demands preservation of all documents relating to any comparison testing, benchmarking, or head-to-head evaluation between PuraClear products and DermaTrūe products or any other competing product, regardless of whether such testing was conducted in connection with the PuraClear Truth campaign.
D. Internal Communications Among Key Personnel
All communications, in any form, among, between, or involving any of the following Apex personnel concerning the PuraClear Truth campaign, DermaTrūe products, competitive strategy, comparative advertising, or any of the specific claims made in the campaign, including but not limited to the clinical superiority claim, the price-comparison claim, and the "clean" ingredients claim:
(i) Marcus Devlin, Chief Executive Officer and Founder;
(ii) Rachel Emory, Chief Marketing Officer;
(iii) Dr. Simon Guerrero, Vice President, Product Development; and
(iv) Tanya Fischetti, General Counsel.
This category includes all emails, memoranda, text messages, instant messages, Meridian Solutions or Northgate Data Systems messages, handwritten notes, voicemails, video conference recordings and transcripts, and any other form of communication. This preservation obligation encompasses communications among the named individuals, as well as communications between any named individual and any other Apex employee, officer, director, board member, outside consultant, advisor, or third party.
E. Campaign Performance and Media Analytics
All data, reports, dashboards, analyses, summaries, and presentations relating to the performance and effectiveness of the PuraClear Truth campaign, including but not limited to: total media impressions; reach and frequency data; click-through rates; engagement metrics (likes, shares, comments, saves, views); conversion rates; cost-per-click and cost-per-impression data; A/B testing results and test parameters; audience demographic and psychographic data; geographic targeting data; media spend reports broken down by channel (television, digital, social, print, in-store, and website); return-on-investment analyses; attribution modeling data; and any internal or third-party reports assessing the impact, awareness, or persuasiveness of the campaign.
F. PuraClear Sales and Financial Data
All sales data, revenue reports, financial statements, financial analyses, margin analyses, unit-volume data, market-share analyses, forecasts, budgets, variance analyses, and projections for the PuraClear product line, including but not limited to data for the first quarter of 2025 (Q1 2025), the second quarter of 2025 (Q2 2025), the third quarter of 2025 (Q3 2025), and the full fiscal year 2024 (FY 2024). This category also includes any analyses or reports comparing pre-campaign and post-campaign sales trends, customer acquisition or retention data, and any documents calculating, estimating, or analyzing the incremental revenue, profit, or market share attributable to the PuraClear Truth campaign.
G. Pricing and Product Comparison Information
All documents relating to the pricing of PuraClear products and DermaTrūe products, including but not limited to: competitive pricing analyses; price-comparison charts; retail pricing agreements and suggested retail price schedules; unit-size analyses; per-ounce and per-unit cost calculations; documents discussing the selection of the $12.99 PuraClear Spot Treatment (1.0 oz.) and the $28.99 DermaTrūe Complete Acne System (5.2 oz.) for comparison in the campaign; and any internal deliberations, analyses, or communications concerning the methodology, accuracy, or fairness of the price comparison presented in the PuraClear Truth campaign.
H. Ingredient and Formulation Information
All documents relating to the ingredient composition and formulation of PuraClear products, DermaTrūe products, or any competing product analyzed or referenced in connection with the PuraClear Truth campaign, including but not limited to: product specifications and formulation sheets; ingredient lists and safety data; certificates of analysis; any internal testing or evaluation of ingredient claims; any third-party laboratory reports; and any documents discussing, analyzing, or referencing DermaTrūe's reformulated "DermaTrūe Pure" product line, including its paraben-free, sulfate-free, and synthetic-fragrance-free attributes, and including any awareness by Apex of DermaTrūe Pure's reformulation prior to or during the campaign.
I. Communications with Retailers, Distributors, and Trade Partners
All communications with retailers, distributors, wholesalers, trade partners, and any other entities in the distribution chain concerning the PuraClear Truth campaign, PuraClear products, DermaTrūe products, or the competitive positioning of either brand, including but not limited to all communications with Kingsley Drug Stores LLC and any other major retail chain (such as, without limitation, Adriatic Industries, Walgreens Boots Alliance, Inc., Walmart Inc., and target). This includes any communications regarding shelf-space allocation, planogram changes, co-marketing programs, trade promotions, retailer incentives, or competitive delisting or deauthorization decisions.
J. Pre-Litigation Correspondence and Legal Documents
All correspondence between Meridian (including Derek Cho, General Counsel) and Apex (including Tanya Fischetti, General Counsel) and between Calderwood & Harkness LLP and Caldwell, Briggs & Nolan LLP concerning any aspect of the dispute that is the subject of this letter.
All documents relating to Meridian's complaint before the National Advertising Division of the BBB National Programs (Case Ref. NAD-2025-01847), including Apex's written submissions, responses, and supporting documentation filed with the NAD, as well as all internal preparation materials, drafts, strategy memoranda, and correspondence related to the NAD proceeding.
All legal memoranda, opinion letters, legal analyses, or assessments concerning the legality, regulatory compliance, or defensibility of the claims made in the PuraClear Truth campaign, subject to any valid claim of attorney-client privilege or work-product protection, which must be identified with specificity on a privilege log if asserted.
K. Document Retention and Destruction Policies
All corporate document-retention policies, information governance policies, ESI management protocols, backup schedules, auto-deletion settings, and records-management guidelines currently in effect at Apex or that were in effect at any time from January 1, 2024 to the present, together with any modifications, amendments, or suspensions of such policies made since June 2, 2025 — the date of the campaign launch — including any litigation-hold notices previously issued and the dates, recipients, and scope of any such holds.
L. Electronic Systems and Data Sources
Preservation of all data residing on or within the following categories of electronic systems and data sources, to the extent such systems contain documents or ESI falling within any of the categories described above:
(i) email systems, including all hosted, on-premises, and cloud-based email platforms (e.g., Strathmore Data Systems, Ashgrove Software, Crestline Software);
(ii) instant messaging and collaboration platforms, including Meridian Solutions, Northgate Data Systems, or any equivalent application;
(iii) shared network drives and cloud storage repositories, including Aldermere Systems, Hollowell Health IT, Larkspur Technologies, box, or any equivalent platform;
(iv) mobile device data, including text messages (SMS and MMS), Westmark Software, Meridian Services Inc., Signal, Kestrel Data Systems, and any other messaging application, on both company-issued and personal devices used for business purposes by any relevant custodian;
(v) customer relationship management ("CRM") systems;
(vi) enterprise resource planning ("ERP") and financial systems;
(vii) marketing analytics platforms, including Ostrander Services Inc., Stonefield Technologies, social media insights dashboards, and any proprietary or third-party analytics tools;
(viii) social media management tools, including Cascade Technologies, Dunmore Technologies, or any equivalent platform;
(ix) backup tapes, disaster-recovery archives, and any other archival data repositories; and
(x) any personal devices, including personal laptops, personal mobile phones, tablets, or home computers, used by any relevant custodian for any business purpose related to the matters at issue.
V. Identification of Key Custodians
Meridian demands that the litigation hold be immediately communicated to, and that preservation be fully implemented for, at minimum, each of the following custodians:
1. Marcus Devlin — Chief Executive Officer and Founder, Apex Naturals Inc.
2. Rachel Emory — Chief Marketing Officer, Apex Naturals Inc.
3. Dr. Simon Guerrero — Vice President, Product Development, Apex Naturals Inc.
4. Tanya Fischetti — General Counsel, Apex Naturals Inc.
5. Any other Apex employee, officer, contractor, or agent who was involved in the conception, planning, approval, execution, monitoring, or evaluation of the PuraClear Truth campaign, including but not limited to personnel in Apex's marketing, product development, legal, finance, sales, and regulatory departments.
6. Any Apex information technology personnel responsible for managing, maintaining, or administering document-retention, backup, auto-deletion, or data-archival policies and systems.
This list is not intended to be exhaustive. Apex is obligated to identify all individuals who may possess relevant information and ensure that their documents and ESI are preserved. We reserve the right to identify additional custodians as discovery proceeds.
VI. Suspension of Routine Destruction
Meridian demands that Apex immediately and completely suspend all routine document destruction, auto-deletion, data purging, and recycling protocols — whether automated or manual — to the extent that such protocols would affect any of the categories of documents and ESI described in Section IV above. This includes, without limitation, the immediate suspension of:
(a) email auto-archive and auto-deletion settings, including any policies that automatically delete emails after a specified retention period;
(b) Meridian Solutions, Northgate Data Systems, or equivalent messaging platform retention and deletion policies;
(c) backup tape rotation, overwriting, or recycling schedules;
(d) scheduled purging of shared drives, cloud storage repositories, or archival systems; and
(e) any mobile device wiping, resetting, or recycling procedures.
Meridian further demands that Apex take affirmative, documented steps to prevent the loss, alteration, overwriting, or destruction of relevant ESI, including by issuing detailed written hold notices to all relevant custodians and to all IT personnel with administrative access to the systems and data sources identified herein. Such written hold notices should explain the nature of the preservation obligation, identify the categories of materials to be preserved, and instruct recipients that they must not delete, discard, modify, or transfer any potentially relevant documents or ESI pending further notice.
VII. Third-Party Preservation
Meridian further demands that Apex take all steps necessary and appropriate to preserve documents and ESI in the possession, custody, or control of third parties acting on Apex's behalf or at Apex's direction, including specifically:
(a) Brightline Creative Partners LLC, located at 55 Washington Street, Suite 900, Brooklyn, New York 11201, which served as the advertising agency responsible for the creative development and production of the PuraClear Truth campaign;
(b) any media buying agencies engaged by or on behalf of Apex in connection with the placement, scheduling, or distribution of campaign advertisements;
(c) any public relations firms retained by or on behalf of Apex in connection with the campaign or the dispute with Meridian;
(d) any digital marketing vendors, social media management agencies, or analytics consultants engaged in the execution, monitoring, or performance analysis of the campaign; and
(e) any other consultants, vendors, or service providers in possession of documents or ESI relating to the matters described herein.
Apex should immediately communicate preservation obligations to each such third party in writing and take all steps reasonably necessary to ensure that relevant materials in their possession are identified and preserved.
VIII. Spoliation Warning
We wish to make unmistakably clear the consequences that will follow if Apex fails to comply with its preservation obligations.
If Apex fails to preserve the documents and ESI identified in this letter, or if relevant evidence is destroyed, lost, altered, or rendered inaccessible after Apex's preservation obligation arose, Meridian will aggressively pursue all available sanctions and remedies, including but not limited to:
(a) adverse-inference instructions to the jury under Federal Rule of Civil Procedure 37(e)(2), permitting the trier of fact to presume that destroyed evidence was unfavorable to Apex;
(b) curative measures under Federal Rule of Civil Procedure 37(e)(1), including the preclusion of evidence or argument, the reopening of discovery, and the imposition of additional obligations to restore or reconstruct lost information;
(c) monetary sanctions, including the award to Meridian of attorneys' fees and costs incurred as a result of Apex's failure to preserve;
(d) default judgment, issue preclusion, claim preclusion, or other case-dispositive sanctions under the Court's inherent authority; and
(e) any and all other remedies available under applicable law, including referral of counsel for disciplinary proceedings if the failure to preserve results from willful or negligent noncompliance by Apex's legal representatives.
Meridian will not hesitate to seek to hold Apex and its counsel fully accountable for any destruction, loss, alteration, or spoliation of evidence that occurs after Apex's preservation obligations arose on or about June 18, 2025. This letter, and Apex's response (or failure to respond), will be placed before the Court in connection with any such application.
IX. Request for Confirmation
We request that Caldwell, Briggs & Nolan LLP confirm in writing, no later than September 17, 2025 (i.e., within seven calendar days of the date of this letter), that:
(1) Apex has implemented a comprehensive litigation hold covering all categories of documents and ESI described in this letter;
(2) detailed, written hold notices have been circulated to all relevant custodians, including at minimum Marcus Devlin, Rachel Emory, Dr. Simon Guerrero, and Tanya Fischetti, as well as all other individuals identified through Apex's reasonable investigation as possessing potentially relevant information;
(3) all auto-deletion, routine destruction, and data-purging protocols have been suspended with respect to all relevant data sources and systems;
(4) Apex has taken affirmative steps to preserve documents and ESI in the possession of third parties, including specifically Brightline Creative Partners LLC, and can confirm that written preservation notices have been issued to each such third party; and
(5) the identity of all custodians who have received the litigation hold notice, together with their titles, departments, and the dates on which the hold was communicated.
In the event that Apex's preservation efforts are not yet complete as of September 17, 2025, we expect a written explanation of the steps taken to date, the steps remaining, and the anticipated date of full compliance. Silence or a failure to respond will be treated as evidence of noncompliance and will be brought to the Court's attention at the earliest appropriate juncture.
X. Reservation of Rights
This letter is issued without prejudice to any and all of Meridian's rights, claims, demands, and remedies, whether at law or in equity, all of which are expressly and fully reserved. Nothing in this letter shall be construed as a waiver, release, or limitation of any right or remedy available to Meridian under the Lanham Act, New York General Business Law, common law, or any other applicable statute, regulation, or legal authority.
This letter does not constitute, and is not intended to constitute, a complete or exhaustive identification of all categories of documents and ESI that may be relevant to the anticipated litigation. Meridian expressly reserves the right to supplement, modify, and expand these preservation demands at any time, including after the commencement of litigation and the entry of a discovery order by the Court.
We trust that you and your client appreciate the seriousness of the preservation obligations outlined herein. We urge your prompt attention to this matter and look forward to receiving your written confirmation no later than September 17, 2025. If you have any questions regarding the scope of this letter or the categories of materials to be preserved, please do not hesitate to contact me directly at the address below.
Linda Osei, Partner Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 554-8014
Email: losei@calderwoodharkness.com
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei Partner
cc:
Derek Cho, General Counsel, Meridian Consumer Brands LLC (via email) Priya Anand, Calderwood & Harkness LLP (via email) Patrick Gallagher, Calderwood & Harkness LLP (via email)

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