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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

VITAL PHARMACEUTICALS, INC., d/b/a 

VPX SPORTS, 

Plaintiff, 

v. Case No. ___________________ 

BILL’S DISTRIBUTING, LTD., DEAN 

DISTRIBUTING, INC., FABIANO 

BROTHERS – WISCONSIN, LLC, 

FLANIGAN DISTRIBUTING OF DOOR 

COUNTY, INC., LARRY’S DISTRIBUTING 

COMPANY, S. & S. DISTRIBUTING, INC., 

and WDI, LLC, 

Defendants. 

COMPLAINT FOR DECLARATORY JUDGMENT 

Plaintiff, Vital Pharmaceuticals, Inc., d/b/a VPX Sports (“VPX” or “Plaintiff”), states as 

follows for its Complaint against Defendants Bill’s Distributing, Ltd. (“Bill’s”), Dean 

Distributing, Inc. (“Dean”), Fabiano Brothers – Wisconsin, LLC (“Fabiano”), Flanigan 

Distributing of Door County, Inc. (“Flanigan”), Larry’s Distributing Company (“Larry’s”), S. & 

S. Distributing, Inc. (“S. & S.”) and WDI LLC d/b/a Wisconsin Distributors (“WDI”) (collectively 

“Defendants”): 

NATURE OF THIS ACTION 

1. Defendants are sophisticated business entities engaged in the wholesale distribution 

of beverage products including, among others, certain energy drinks manufactured by VPX such 

as REDLINE® and BANG®. 

2. Defendants each entered into contracts with VPX that governed their respective 

relationships with VPX. Among other things, each Defendant’s contract included: (1) Florida 

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choice of law and venue provisions; and (2) a provision allowing VPX to terminate the existing 

relationship without cause by paying a substantial buyout based on the Defendant’s past year of 

sales. 

3. VPX recently initiated the process to terminate its current relationships with 

Defendants, and stands prepared to honor and pay each Defendant’s buyout. But Defendants insist 

Wisconsin law applies to their relationships with VPX, that VPX cannot terminate them without 

cause, and that they are entitled to damages under the Wisconsin Fair Dealer Law, Wis. Stat. § 

135.01 et seq. (“WFDL”) that far exceed the contractual buyout to which they agreed. 

4. Defendants’ arguments are irreconcilable with the written contracts they signed, 

and VPX brings this action to hold Defendants to their obligations. VPX seeks a declaration of 

the parties’ rights and obligations under each Defendant’s respective distributor agreement, 

including declarations that: (1) each Defendant’s Distributor Agreement is enforceable as written; 

(2) Florida law governs VPX’s relationship with each Defendant; (3) VPX was and is permitted 

to terminate its current relationships with Defendants without cause, and Defendants are entitled 

to no compensation beyond the contractually-defined buyout; (5) the WFDL does not apply; and 

(6) alternatively, if the Court determines that the WFDL does apply, that VPX has not violated it. 

THE PARTIES 

5. VPX is a Florida corporation with its principal office located at 1600 N. Park Drive, 

Weston, FL 33326, and is therefore a citizen of Florida. 

6. Bill’s is Wisconsin limited company with its principal place of business at 5900 

Packer Drive NE, Menomonie, Wisconsin 54751-4940 and, therefore, is a citizen of Wisconsin. 

7. Dean is a Wisconsin corporation with a principal place of business at 1215 Ontario 

Road, Green Bay, Wisconsin 54331 and, therefore, is a citizen of Wisconsin. 

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8. Fabiano is a Wisconsin limited liability company with a principal place of business 

at 7205 Zinser Street, Weston, Wisconsin 54476-4540. Fabiano is wholly owned by two members: 

James C. Fabiano II Trust and Joseph R. Fabiano II Trust. It is believed that the beneficiaries of 

those trusts are Michigan and/or Wisconsin citizens. 

9. Flanigan is a Wisconsin corporation with its principal place of business at 5600 

Gordon Road, Strugeon Bay, Wisconsin 54235-8839 and, therefore, is a citizen of Wisconsin. 

10. Larry’s is a Wisconsin corporation with its principal place of business at 3815 

Playbird Road, Sheboygan, Wisconsin 53083 and, therefore, is a citizen of Wisconsin. 

11. S. & S. is a Wisconsin corporation with its principal place of business at 2000 Riley 

Road, Sparta, Wisconsin 54656 and, therefore, is a citizen of Wisconsin. 

12. WDI is a Wisconsin limited liability corporation with a principal place of business 

at 900 Progress Way, Sun Prairie, Wisconsin 53590. The members of WDI are Pierre and Kara 

McCormick, both citizens of Wisconsin. WDI is, therefore, a citizen of Wisconsin. 

JURISDICTION AND VENUE 

13. This is an action for declaratory judgment pursuant to the Federal Declaratory 

Judgment Act, codified at 28 U.S.C. § 2201, et seq. 

14. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. 

§§ 1331 and 1332. The parties to this action are diverse, in that VPX is a citizen of Florida and all 

the Defendants are citizens of Wisconsin and/or Michigan. The amount in controversy exceeds 

$75,000.00, exclusive of interests and costs, because each Defendant claims to be owed in excess 

of $75,000 as a result of VPX’s decision to terminate Defendant’s distribution of BANG® branded 

products and each Defendant seeks damages under the WFDL well in excess of the jurisdictional 

limits. 

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15. Venue is proper in this Court because, under each Defendant’s respective 

Distribution Agreement, each Defendant contractually agreed Florida law shall govern all issues 

relating to those agreements and irrevocably agreed any legal action, suit, or proceeding arising 

out of or in connection with those agreements, the transactions contemplated thereby, or disputes 

relating thereto, shall be brought exclusively in the State or Federal courts located in Broward 

County, Florida. Defendants expressly waived any jurisdictional objections to litigating in this 

Court. Venue is also proper pursuant to 28 U.S.C. § 1391. 

BACKGROUND FACTS 

16. VPX is a manufacturer of fitness-focused nutritional supplements and energy 

drinks, which have been sold over time under various brands including REDLINE® and BANG®. 

Each VPX product brand is made up of a variety of energy drink products. 

17. VPX sells its products internationally and nationwide. To do so, it has relied in part 

on independent wholesale distributors to sell and distribute its products to retail resellers. 

18. On October 2, 2018, VPX and Dean’s entered into a Distributor Agreement 

whereby Dean’s agreed to serve as a VPX wholesale distributor in and around Green Bay, 

Wisconsin (the “Dean’s Agreement”). 

19. On December 13, 2018, VPX and Fabiano entered into a Distributor Agreement 

whereby Fabiano agreed to serve as a VPX wholesale distributor in six Wisconsin counties (the 

“Fabiano Agreement”). 

20. On October 31, 2018, VPX and Flanigan entered into a Distributor Agreement 

whereby Flanigan agreed to serve as a VPX wholesale distributor in Door County, Wisconsin and 

Kewaunee County, Wisconsin (the “Flanigan Agreement”). 

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21. On December 20, 2018, VPX and Larry’s entered into a Distributor Agreement 

whereby Larry’s agreed to serve as a VPX wholesale distributor in Sheboygan and Calumet 

Counties, Wisconsin (the “Larry’s Agreement”). 

22. On October 8, 2018, VPX and S. & S. entered into a Distributor Agreement 

whereby S. & S. agreed to serve as a VPX wholesale distributor in nine counties in western 

Wisconsin (the “S. & S. Agreement”). 

23. On March 5, 2018, VPX and Bill's entered into a Distributor Agreement whereby 

Bill's agreed to serve as a VPX wholesale distributor. 

24. On August 7, 2018, VPX and WDI entered into a Distributor Agreement whereby 

WDI agreed to serve as a VPX wholesale distributor in twenty-seven Wisconsin counties (the 

“WDI Agreement”. 

25. Each of Defendant’s respective Distributor Agreements includes a Florida choice 

of law provision that is either identical to or substantively identical to the following: “Florida law 

shall govern all issues relating to the enforcement, interpretation, validity and effect of this 

Agreement, without regard to conflicts of law.” 

26. Each of Defendant’s respective Distributor Agreement also includes a provision 

that expressly allows VPX to terminate the relationship without cause upon payment of a 

contractually-defined buyout that is based on the Defendant’s sales of VPX products within the 

preceding 12 months: 

Manufacturer may terminate this Agreement without cause at any time, in its sole 

discretion, by buying out Distributor’s rights. The fair compensation to be paid to 

Distributor in the event Manufacturer opts to exercise its buyout right hereunder 

shall be the product of multiplying: (a) the number of standard unit cases of 

Manufacturer’s Products sold by Distributor in the 12-month period immediately 

preceding notice of Manufacturer’s exercise of its buyout right hereunder if the 

Agreement has been in effect for a full 12 months or the number of cases that the 

Distributor has resold during the time that the Agreement has been in effect if the 

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Agreement has been in effect for less than 12 months, whichever is shorter; and (b) 

$4.00 per 12-count case of BANG® sold, $8.00 per 23-count case of BANG® sold, 

and $6.00 per case of Redline® RTD sold. This buyout sum shall be paid to 

Distributor within two (2) months after Manufacturer sends written notice that it is 

exercising its buyout right hereunder. Within 30 days after Manufacturer sends the 

notice of buyout, Distributor shall provide to Manufacturer a detailed accounting 

of its resales, along with proof of the resales in the form of monthly depletion 

reports. Failure to timely provide Manufacturer with a detailed accounting, along 

with sufficient proof of resales will cause Distributor to delay the buyout. If 

Distributor provides a sufficient accounting and proof of resales, upon 

Manufacturers sending of payment of the substantiated price, this Agreement shall 

be deemed canceled. Time is of the essence. 

27. In late April and early May of 2020, VPX initiated the process to terminate its 

existing relationship with each Defendant without cause. VPX stands ready to honor its own 

contractual obligations by paying the contractually-defined buyout. 

28. The Defendants, however, have taken a position that is completely irreconcilable 

with the Distributor Agreements they signed. Specifically, they argue Wisconsin law applies and 

that VPX cannot terminate them without cause. They also claim to be entitled to damages that far 

exceed the buyout provision of their respective contracts. 

29. Defendants are sophisticated business entities: 

 Bill’s has been in business since 1954, employs over 100 employees, distributes 

500 different brands from 50 different suppliers, and operates a 153,000 square 

foot facility that can hold up to eight million cases. 

 Dean has been in business since 1953, employs over 100 employees, and 

distributes across ten different counties. 

 Fabiano Brothers has been involved in beverage distribution for over 130 years, 

employs over 50 people, and distributes across six different counties. 

 Flanigan has been in business since 1947, has over 15 employees, and distributes 

across two different counties. 

 Larry’s has been in business since 1947 and has over 30 employees. 

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 S. & S. has been in business since 1964, has over 40 employees, and distributes 

across ten different counties. 

 WDI has been in business since 1986, has 150 employees, distributes across 30 

territories, and is a subsidiary of Anheuser Busch. 

Defendants knew and understood the contents of the Distributor Agreements they signed. They 

should be held to the terms of those contracts. 

COUNT ONE: DECLARATORY JUDGMENT 

30. Plaintiff re-alleges and incorporates herein by reference the allegations contained 

in paragraphs 1 through 29 above. 

31. An actual controversy exists as to whether: (a) each Defendant’s respective 

Distributor Agreement is enforceable according to its terms; (b) Florida or Wisconsin law applies 

to each Distributor Agreement; (c) VPX possesses a contractual right to terminate each Defendant 

without cause by paying the contractually-defined buyout; and (d) whether the WFDL applies to 

VPX’s relationship with each Defendant. 

32. VPX desires a judicial determination of its right to terminate its relationship with 

each Defendant. 

33. A judicial declaration is necessary and appropriate at this time under the 

circumstances in order that VPX may ascertain and understand its rights and obligations, as well 

as the rights of each Defendant with respect to each Distributor Agreement. 

34. A judicial determination at this time will lessen the financial and other burdens 

incurred by VPX and will correct Defendants’ flawed and disingenuous contentions about the 

parties’ rights and duties. 

35. Pursuant to 28 U.S.C. § 2201, this Court is authorized to adjudicate and decide the 

parties’ respective rights and obligations and to determine, under Florida law, that VPX is 

permitted to terminate its relationship with Defendant without cause, that VPX owes no 

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compensation to Defendants beyond the contractually-defined buyout, and that Wisconsin law—

including the WFDL—is inapplicable. 

PRAYER FOR RELIEF 

 WHEREFORE, Plaintiff, Vital Pharmaceuticals, Inc., d/b/a VPX Sports, respectfully 

requests judgment and relief against Defendants, as follows: 

A. A declaration by this Court finding: 

i. Each Defendant’s Distributor Agreement is enforceable as written and 

governs the relationship between VPX and each Defendant; 

ii. Florida law governs each Defendant’s respective Distributor Agreement 

and the Defendants’ relationships with VPX; 

iii. Wisconsin law is not applicable to the Defendants’ Distributor Agreements 

or to the Defendants’ relationships with VPX; 

iv. VPX is contractually permitted to terminate its relationships with 

Defendants without cause; 

v. Defendants are not entitled to any compensation from VPX for the 

termination without cause beyond the contractually-defined buyout as set 

forth in their respective Distributor Agreements; and 

vi. Defendants are not entitled to the protections or remedies of the Wisconsin 

Fair Dealer Law, Wis. Stat. § 135.01 et seq. 

B. A final judgment awarding Plaintiff, Vital Pharmaceuticals, Inc., d/b/a VPX Sports, 

such other and further relief as the Court deems necessary and just and consistent with the parties’ 

contracts. 

 

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Dated: June 12, 2020 

/s/Zachary S. Foster 

Zachary S. Foster 

Florida Bar No. 111980 

QUARLES & BRADY LLP 

101 E. Kennedy Blvd., 

Suite 3400 

Tampa, Florida 33602 

Telephone: (813) 387-0300 

Fax: (813) 387-1800 

Zachary.Foster@quarles.com 

and 

Francis Massabki 

Florida Bar No. 687901 

Vital Pharmaceuticals, Inc. 

1600 North Park Drive 

Weston, FL 33326 

Telephone: (954) 641-0570 

Fax: (954) 389-6254 

frank.massabki@vpxsports.com 

Attorneys for Plaintiff 

 Vital Pharmaceuticals, Inc. 

QB\173151.00003\63480206.1 

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