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 UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF FLORIDA 

FORT PIERCE DIVISION 

CASE NO. 22-cv-81576-CANNON 

VPR BRANDS, LP, 

 Plaintiff, FORT PIERCE, FLORIDA 

 vs. 

 DECEMBER 8, 2022 

SHENZHEN WEIBOLI TECHNOLOGY CO., 

LTD. (ELF BAR), YLSN DISTRIBUTION PAGES 1 - 209 

LLC, ECTO WORLD LLC, SAFA GOODS LLC 

D&A DISTRIBUTION LLC, UNISHOW 

(U.S.A.), INC., SV3 LLC, AND 

KINGDOM VAPOR, INC., 

 Defendants. 

______________________________________/ 

TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING 

BEFORE THE HONORABLE AILEEN M. CANNON 

UNITED STATES DISTRICT JUDGE 

APPEARANCES: 

FOR THE PLAINTIFFS: JOEL B. ROTHMAN, ESQ. 

 LAYLA NGUYEN, ESQ. 

 MARION QUINTERO, ESQ. 

 SRIPLAW, P.A. 

 21301 Powerline Road, St. 100 

 Boca Raton, Florida 33433 

FOR THE DEFENDANTS: ERIC HEYER, ESQ. 

 KRUPA PATEL, ESQ. 

 MICHELLE LI, ESQ. 

 CARRIE SHUFFLEBARGER, ESQ. 

 ANNA STRESSENGER, ESQ. 

 Thompson Hine 

 1919 M Street NW, Suite 700 

 Washington, D.C. 20036 

 TUCKER CROWLEY MOTTA, ESQ. 

 McDowell Hetherington, LLP 

 2385 NW Executive Center Dr., Suite 400 

 Boca Raton, Florida 33433 

Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 1 of 209
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REPORTED BY: DIANE M. MILLER, RMR, CRR, CRC 

 Official Court Reporter 

 United States District Court 

 101 South U.S. Highway 1 

 Fort Pierce, FL 34950 

 (772)467-2337 

 diane_miller@flsd.uscourts.gov 

I-N-D-E-X

WITNESS: PAGE

BRYAN HAYNES

 Direct Examination by Mr. Heyer 13 

 Cross-Examination by Mr. Rothman 42 

 Redirect Examination 52 

HAITHAM SHRITEH

 Direct Examination by Mr. Heyer 54 

 Cross-Examination by Mr. Rothman 73 

JON GLAUSER

 Direct Examination by Mr. Heyer 85 

 Cross-Examination by Mr. Rothman 104 

 Redirect Examination by Mr. Heyer 122 

KEVIN FRIJA

 Examination by The Court 125 

 Direct Examination by Mr. Rothman 127 

 Cross-examination by Mr. Heyer 129 

Thursday, December 1st, 2022

Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 2 of 209
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P-R-O-C-E-E-D-I-N-G-S

THE COURT: Good morning, please call the case, and

you may be seated.

Deputy.

THE CLERK: Court case number 22-cv-81576-Cannon, VPR

Brands LP versus Shenzhen Weiboli Technology Company, Ltd.,

et al. 

Counsel, please state your appearances, starting with

the Plaintiff.

MR. ROTHMAN: Joel Rothman of SRIPLAW, along with my

associates Layla Nguyen and Marion Quintero [phonetic] for the

Plaintiff, VPR Brands Limited Partnership, and the CEO of VPR

Brands, Kevin Frija, is also here in the courtroom. 

Good morning, Your Honor.

THE COURT: Good morning, nice to see you in person.

MR. ROTHMAN: Thank you.

MR. HEYER: Good morning, Your Honor. Eric Heyer

from Thompson Hine on behalf of all of the Defendants. With me

is Carrie Shufflebarger, Anna Stressenger, Michelle Li and

local counsel, Tucker Motta, from McDowell Hetherington.

THE COURT: Excellent, good morning.

All right. We are here, of course, as a continuation

of the hearing we began on the 18th of November. This is

Plaintiff's motion for a preliminary injunction, we heard the

testimony of one witness called by Plaintiff, during that

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hearing, but it became evident that we needed to take

additional evidence and that more time was required, so I

appreciate everybody's appearance today and quick preparation

for today's hearing.

I have looked at the hearing plan that was submitted.

I believe we have one witness testifying by Zoom, if necessary.

I would like to start off this morning with any preliminary

procedural matters either side wishes to raise. 

Let me turn first to Mr. Rothman.

MR. ROTHMAN: Thank you, Your Honor. We have a few

stipulations, I think, that we have worked out and some

suggestions on how to address some of the Defendants' concerns

about confidentiality in a way that doesn't restrict Your

Honor's ability to maintain the courtroom as open.

So I would prefer it if Counsel for the Defendants --

we have been discussing this and if they can raise these issues

and if I need to make a comment, I'll do so.

THE COURT: All right. Other than the

confidentiality piece, any other procedural matters on any

other motions?

MR. ROTHMAN: There is -- when we left the hearing

last time, Your Honor, the issue of judicial notice as to a

trademark search was still open, that's one of the stipulations

that we have agreed to that we wanted to put on the record. We

didn't have time to reduce it to writing, so we thought we

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could just simply stipulate to it in open court, so it's really

those two issues.

As far as the Plaintiff is concerned in terms of

moving forward with the case, we put some time on for the

hearing plan, but it's really more earmarked to rebuttal.

I do have some additional exhibits, but they are

exhibits that I anticipate I can probably put in through the

witnesses that the Defendant is going to call or if Your Honor

would permit me, during a short rebuttal with Counsel being

allowed to cross-examine, I'll put my client on at the end.

THE COURT: Thank you, I figured that was the case.

Let me hear from Defense Counsel on these two

matters.

MS. SHUFFLEBARGER: Yes, Your Honor. First I'll

start on the second request for judicial notice that we had

submitted at docket 33, and you indicated you would give us

another opportunity to elicit some foundation on that.

I submitted something earlier this week with

Mr. Ebling testifying by Zoom for the limited purpose of

authenticating that. Yesterday Mr. Rothman advised us that he

would stipulate to that being entered for the sole purpose that

we indicated we wanted to use it, specifically in response to

their statements on the intent factor, so if Your Honor is okay

with that stipulation, I don't believe that Mr. Ebling will

need to testify by Zoom, if that's acceptable.

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THE COURT: Yes, it is, I think, tentatively. I just

want a more precise articulation of this intent related purpose

you just mentioned, so what exactly is the purpose that you are

agreeing to Mr. Rothman?

MR. ROTHMAN: As I understand it, the trademark

search is being offered to rebut statements that my client made

in his declaration relating to the Defendants' intent to cause

confusion, and for that limited purpose, we don't object to

Your Honor's consideration of the trademark search that they

are offering, and I think that's it really.

THE COURT: Okay, thank you.

Anything to add?

MS. SHUFFLEBARGER: No, Your Honor, Mr. Rothman

captured it well. We are offering it solely for the purpose of

showing that our client did not adopt this particular brand

actually with any knowledge or intent to trade up on the

goodwill of their mark here in the United States, because our

client has a broad portfolio worldwide and that was the only

purpose for which we were offering it.

THE COURT: All right. In light of that stipulation

and the parties' agreement on the purpose for which the content

will be used, I'll grant Defendants' second motion for judicial

notice, which is docket entry 33.

MS. SHUFFLEBARGER: That's also Defendants'

Exhibit 7, Your Honor.

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THE COURT: Okay, all right. So now let's turn to

the confidentiality issues.

MR. HEYER: Yes, Your Honor. The way we intend to

proceed here, I have provided to Mr. Rothman, consistent with

Your Honor's order, under an agreement that he would treat it

as attorney's eyes only here, two exhibits and I marked them

temporarily as D21 and D22, which are financial information

from the two Defendants that are going to have corporate

representatives testifying here today about their sales of the

accused ELF products and their profit margins and their

profits.

What I would intend to do -- well, Mr. Rothman

doesn't have any objection, to my understanding, to those

exhibits being filed under seal, and so what I would intend to

do, assuming Your Honor would require this, is lay a foundation

through the questioning of those two fact witnesses as to why

they would effectively consider this to be trade secret and

highly confidential and propriety information that would be

competitively harmful to them if publicly disclosed and ask

them about the exhibits without actually stating any numbers on

the record, but moving in the exhibits and requesting that they

be sealed and then the numbers are there, they are in the

record, Your Honor has them, opposing Counsel has them, but

there is not any public transcript. We don't have to seal the

courtroom about any specific testimony about the numbers, but

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they are in the record in a way that preserves the confidential

information and the trade secret nature of the information that

they are concerned about, so that's kind of it and I think

Mr. Rothman agrees that's where we are at.

MR. ROTHMAN: Your Honor, I'm very, very conscious

and concerned as always about coming into court and asking the

Court to issue an order that would create a prior restraint on

speech. I think we have a situation here though and unlike our

Zoom hearing last -- two weeks ago, there is no members of the

public here, right? 

My client does agree to keep this information

confidential, we actually will stipulate, without the need for

testimony, that the information in these two exhibits is

entitled to be sealed, and I think that as long as the

Defendants are comfortable that there is no one here who is

going to go out and report it in the press, I think it would be

helpful that we be able to discuss the numbers in the courtroom

because there may be, at some point in the hearing, discussions

about, you know, how much bond should be set and why, and I

think that these numbers in these two exhibits, as I understand

it, go to that issue.

THE COURT: Is that the only issue that they are

relevant to, the bond amount if one is entered?

MR. ROTHMAN: I think Counsel should speak to that.

THE COURT: Okay.

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MR. HEYER: They are, Your Honor. They show -- they

also show the time period during which our client sold these

products, but we are going to elicit that orally, so the

exhibits aren't necessary to show the time period of when they

started selling the products. It is implicitly part of the

exhibit, but it is not -- we don't need the exhibit for that

purpose, if that makes sense.

THE COURT: Okay, all right. Well, I don't typically

seal information described as sales, profits or profit margins,

I consider that information to be obviously business

information. I can understand why your client doesn't want it

to be public, but I don't believe it rises to the level of

material that warrants sealing to overcome the strong

presumption in favor of public openness, so I'm really not

inclined to seal that information.

I also am unclear as to how it could rise to the

level of trade secret. I know you have made that sort of

characterization, so for now, I'll table the issue.

If you want to elicit the testimony through your

witness to establish that it is, in fact, a trade secret within

the sort of fairly limited nature of that definition, then I

will entertain it, but I do want to inform both parties that as

a general matter, information in those categories would not

warrant sealing in this Court's estimation, so we will leave it

at that.

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At this point, the hearing is public, I have not

sealed anything. This matter, as it progresses, will

invariably touch upon information that is commercial in nature

and we are not going to run this proceeding with sealing

requests peppered throughout the case. So anyway, that is the

ruling, at this point, but Mr. Heyer, if you wish to call your

witness to establish your view about the particular contents of

that information, you are welcome to do so.

MR. HEYER: Yeah, we will attempt, Your Honor. Just

if I can draw Your Honor's attention, we do have a couple of

district court citations that I believe have sealed such

exhibits in this sort of context. One is -- and I'll just give

them to Your Honor -- Teledyne Instruments, Inc. versus Cairns,

C-A-I-R-N-S, 2013 U.S. District Lexis 1508477, it is a Middle

District of Florida case from 2013. 

And I believe there is also one from the Northern

District of Georgia, it's Chemence, C-H-E-M-E-N-C-E -- it is

MRD, I'm not sure what it stands for -- MRD Products versus

Medline Industries, 2015 U.S. District Lexis 2958, Northern

District of Georgia from 2015 as well. 

Thank you, Your Honor.

THE COURT: I'll take a look at those cases.

Like I said, general commercial information that you

do not wish to be public, including categories such as sales,

profits and profit margins, really typically are not sealed in

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 10 of 209
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my civil docket.

Things that are much more sensitive, such as personal

identifying information of private clients unrelated to the

case or other things that would generate a particularized

safety concern or other concerning issue, I would be more open

to, but this, as you have described it so far, I don't believe

warrants overcoming that strong presumption, as I said earlier,

so with that, let's get started.

Mr. Rothman, so you are not going to start the day

off with Mr. Frija, is that correct?

MR. ROTHMAN: No. With Your Honor's permission, I

think we can move to the Defendants. Like I said, the only

other submissions we have are items that I think we can get in

through either the Defendants' witnesses, so for expediency, we

can just move ahead. If I need to call Mr. Frija for rebuttal,

and Your Honor permits it, then we will do that.

THE COURT: Okay, great. 

Then Mr. Heyer, please call your first witness.

MR. HEYER: Your Honor, one other preliminary matter.

As Your Honor will recall, I was trying to show on the video

camera Mr. Frija an actual physical exhibit. We brought that

with us and marked it with an exhibit sticker on the bottom as

D19 and I believe that's stipulated that it can be entered into

evidence.

MR. ROTHMAN: We have no objection.

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MR. HEYER: If I can approach, Your Honor, the court

security officer.

THE COURT: You may. Defense 19 is admitted without

objection.

(Evidence admitted as Defense Exhibit No. D19.)

THE COURT: Just one small housekeeping matter,

please remember that our court reporter is working hard to take

down every word we all say, so let's be mindful of that and

speak as slowly and clearly as we can.

All right, Mr. Heyer, please call your first witness.

MR. HEYER: Your Honor, Defendants call Mr. Bryan

Haynes.

Your Honor, if I could approach with exhibit binders

for Your Honor and the witness.

THE COURT: Yes.

MR. HEYER: Thank you.

THE COURT: All right. If you could stand up one

more time before you are seated to be sworn in.

THE COURTROOM DEPUTY: Please raise your right hand.

BRYAN HAYNES, DEFENSE WITNESS, SWORN 

THE COURTROOM DEPUTY: Please have a seat and state

your first and last name for the record.

THE WITNESS: My name is Bryan Haynes.

MR. HEYER: Does Your Honor have a preference if I do

this from the podium or from the table?

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THE COURT: You can pick whatever suits you best.

MR. HEYER: Okay. I'll try the podium and I'll try

to speak slowly.

DIRECT EXAMINATION

BY MR. HEYER: 

Q Mr. Haynes, please introduce yourself to the Court.

A My name is Bryan Haynes, I'm an attorney.

Q Where do you work, Mr. Haynes?

A I'm a partner at Troutman Pepper Hamilton & Sanders, LLP.

Q Okay. How long have you been a partner there?

A I became a partner January 1st, 2007.

Q Could you explain your educational background and the

degrees that you have received, if any.

A I can. I received a bachelor of arts degree in 1993 from

Virginia Tech, I received my law degree in 1998 from George

Mason University School of Law.

Q In what jurisdictions, if any, are you admitted to practice

law?

A I'm admitted to practice in Virginia and the District of

Colombia.

Q And for how long have you been practicing law?

A I was admitted to the bar in 1998, that was during my

clerkship, and I started in private practice in 1999.

Q Did there come a time when you started performing legal

work for clients in the tobacco and/or nicotine industries?

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A There did. That was in 2003, when I joined -- very shortly

after I joined what is my current law firm.

Q And without getting into the specifics that could be

covered by attorney-client privilege of any particular matter,

could you give the Court a general description of the types of

matters you have handled for clients in that industry.

A It really covers the full range of regulatory issues as

they pertain to tobacco and nicotine companies.

The principal focus is Food and Drug Administration

requirements, but also tobacco tax and licensing requirements,

and then the various other marketing restrictions and the like

that apply to tobacco companies.

Q To drill down a little bit now, do you have any experience

representing clients in the electronic cigarette industry

specifically?

A I do. We first started representing clients in the

electronic cigarette industry in roughly the 2009 timeframe,

when they started to gain popularity. At that time, FDA did

not have formal jurisdiction over these companies. 

At some point, it became clear FDA was going to

acquire jurisdiction over e-cigarette companies and we were

involved at the time in explaining to our clients what these

regulations would look like, the advocacy around the proposed

regulations and then once the regulations were issued, helping

companies comply.

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Q Could you turn, in the exhibit binder in front of you, sir,

to Defendants' Exhibit 11 and let me know when you have gotten

there.

A I have it.

Q Could you identify what is found in Defendants' Exhibit 11?

A I can. Exhibit 11 is my law firm biography.

(Evidence identified as Defense Exhibit No. 11.)

BY MR. HEYER: 

Q And behind that, is there a list of your sample recent

speaking engagements and publications?

A Yes, Exhibit 11 contains a list -- a sample list of

speaking engagements and publications.

Q Have you ever --

MR. HEYER: Your Honor, I move the admission of

Defendants' Exhibit 11.

THE COURT: Any objection?

MR. ROTHMAN: No objection.

THE COURT: Defense 11 is admitted without objection.

(Evidence admitted as Defense Exhibit No. 11.)

BY MR. HEYER: 

Q Mr. Haynes, have you ever written on the topic of

regulation of electronic cigarettes by FDA?

A I have.

Q Can you give some examples of where your writings have been

published.

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A We maintain a blog, thetobaccologblog.com, that's existed

for, I want to say roughly ten years.

In addition to our blog, we regularly publish in

various other publications, including things like Law360, Vapor

Voice, industry magazines, things like that.

Q Okay. And have you ever spoken or given presentations on

the topic of electronic cigarettes by FDA?

A I have many times.

Q Can you give some examples of the forums in which you have

given presentations and spoken.

A I can. So I'm a member of food and drug -- well, my law

firm is a member of the Food and Drug Law Institute, which is

an association dedicated to FDA regulatory issues. I

frequently speak at Food and Drug Law Institute conferences. 

We also participate in TMA, which some people

understand to refer to Tobacco Merchants Association, I

frequently speak at those conferences, and then also various

industry trade shows, things like that.

Q And are you a member of any professional associations,

boards or advisory committees that deal with the topic of the

regulation of electronic cigarettes by FDA?

A I am. As I mentioned earlier, we are members of the Food

and Drug Law Institute, TMA. With respect to the Food and Drug

Law Institute, I served for many years on the tobacco and

nicotine -- I think it is called committee, and I currently

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serve on the enforcement conference committee.

Q And have you been provided any expert reports in any other

litigation matters dealing with regulation of tobacco products

by FDA?

A I have twice.

Q Okay. Has your experience included representing clients in

the electronic cigarette industry that are subject or

potentially subject to FDA enforcement activity?

A It has.

Q Again, without getting into the specifics that may be

covered by privilege, can you give some examples of the types

of enforcement activities that, in your experience, you have

seen FDA take against companies in this space.

A Sure. It can range from relatively mundane things like

establishment inspections, I consider that to be an enforcement

activity; two, things like warning letters, which are a more

common way for FDA to signal that they have an issue with a

particular company's conduct; and then I have seen more

aggressive enforcement actions that involve the Department of

Justice.

Q Are you familiar with the requirement for premarket

authorization under section 910 of the Food, Drug and Cosmetic

Act?

A I am.

Q Could you briefly explain what that is to the Court.

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A Sure. So the food, drug and -- in 2009, the Food, Drug and

Cosmetic Act was amended to give FDA regulatory authority over

tobacco products. FDA has those requirements -- there are a

number of requirements on tobacco companies. One of those

requirements is the need to obtain FDA authorization for any

so-called new tobacco product that will be sold in the United

States.

Q Based on your experience, what is a new tobacco product?

A A new tobacco product is actually defined under the law, so

there is a definition of a tobacco product and then a new

tobacco product is any product that was not sold in the United

States as of February 15th, 2007 or that's been changed in any

way since then.

Q Is there terminology that FDA has used for products that

were commercially marketed in the United States prior to

February 15th, 2007?

A They are called -- they were called, until very recently,

grandfathered products. FDA has recently changed the term to

preexisting tobacco products.

Q Based on your experience, what parameters does FDA use to

determine what is a tobacco product itself?

A There is a definition of a tobacco product in what I'll, in

my shorthand, refer to as the Tobacco Control Act, those

amendments I mentioned earlier.

The definition of a tobacco product, and I'm

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paraphrasing here, is any product that's made or derived from

tobacco, including nicotine from any source, and intended for

human consumption, including components and parts of those

products.

Q So focus on that last part that you just said, would a

vaporizer that does not contain nicotine or any other

substance, would that be a component?

A Potentially. In the regulations, FDA has defined what

components or parts are. A product is the, quote, unquote,

tobacco product component. It doesn't need to contain tobacco

or tobacco derivatives, but so long as it is intended or

reasonably expected to be used with the consumption of a

tobacco product, it is considered a tobacco product component

or part; and therefore, a tobacco product itself.

Q That reasonably expected to be used language that you just

used, can you explain that a little bit more.

A I can. In the regulations -- and you will hear more about

this. In the deeming regulations, FDA sought to specifically

define components and parts and they indicated in the

commentary around those regulations that they chose the

language they used, intended or reasonably expected,

effectively to insure that companies that marketed products

that did not contain tobacco, but were, in fact, used to

consume tobacco could not avoid regulation.

Q You referenced the deeming rule, could you explain exactly

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what that is.

A I can. So as I mentioned, in 2009, FDA was given authority

over tobacco products, but the initial authority that Congress

gave it was only over a defined category of products,

cigarettes, smokeless tobacco, and roll your own, but Congress

also gave FDA authority to deem all other tobacco products as

defined by the law as subject to its jurisdiction. FDA did so

in 2016.

THE COURT: Has the FDA, in an enforcement action

thus far, actually concluded that a vaporizer that does not

itself contain any nicotine could qualify as a new product or

the term you used earlier?

THE WITNESS: It has. It has sent a number of

warning letters to companies that market vaporizers that do not

contain any nicotine at all.

THE COURT: And other than -- I understand the

warning letter, but has there been sort of an ultimate

disposition in an enforcement proceeding where it has been sort

of determined by the FDA enforcement arm that, in fact,

qualifies under the regulatory definition?

THE WITNESS: I'll respond in two ways, Your Honor.

I regard a warning letter as a determination by FDA's

enforcement arm that this is a regulated tobacco product.

I will also mention to you that this issue was

addressed in prior litigation involving challenges to the

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deeming regulations, it is called the Nicopure case out the

D.C. District Court, and in that case, the Plaintiff, Nicopure,

asserted that FDA could not assert jurisdiction over these

products that don't have nicotine at all. And I'm paraphrasing

here, but the district court basically found that FDA's

regulation on this point, the one that I mentioned earlier

about intended or reasonably expected, was a permissible

construction of the statute; and therefore, FDA had authority

over these products even if they don't have nicotine so long as

their intended or expected use is with nicotine.

THE COURT: And so that case you were just talking

about, that's an enforcement proceeding that resulted in a

federal court action to review the FDA's determination

vis-a-vis that particular target, is that correct?

THE WITNESS: Nicopure, Your Honor, was not an

enforcement proceeding, it was a challenge to the regulations

themselves.

THE COURT: So if another company in the marketplace

thinks that one of its competitors, you know, didn't comply

with this premarket authorization requirement, can they go and

just file a private lawsuit in federal court somewhere?

THE WITNESS: I don't believe so, Your Honor. I

believe that there is case law to the effect that there is not

a private right of action to enforce the Food, Drug and

Cosmetic Act.

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THE COURT: All right. Please continue.

BY MR. HEYER: 

Q Are you familiar with the concept of deferred enforcement

when it comes to FDA regulation of electronic cigarettes?

A I am. In a variety of contexts, FDA has made

pronouncements through guidance that it will not enforce

aspects of the law as written as it pertains to certain

requirements or categories of products.

Q Okay. And with respect to the premarket authorization

requirement, what, if anything, will FDA extend as far as

enforcement discretion?

A So when the deeming regulations became effective in August

of 2016, there is a whole slew of products that were suddenly

subject to regulation.

We talked earlier about this premarket authorization

requirement and a very large number of products, if you

interpreted that requirement literally, would be immediately

unlawful. So what FDA decided to do was to, when the deeming

regulations were promulgated, adopt a deferred enforcement

policy for e-cigarettes and other products such that -- should

I elaborate on what the policy was?

Q That would be my next question, so go ahead.

A Such that if a product was on the U.S. market by the

effective date of the deeming regulations, August 8, 2016, the

product could stay on the market so long as the supplier sought

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marketing authorization from FDA by a specified date.

At the time, that was -- I think it was August of

2018. The product could stay on the market so long as the

supplier filed and then it could stay on the market during some

period of time while FDA considered the application.

Q Did that date of 2018, was that ultimately moved to a later

date?

A It was. It moved different times, which made life

interesting as a regulatory lawyer, but in 2017, the FDA

commissioner extended the deadline, at least for electronic

cigarette products, to 2022.

Q Okay. And was it ultimately later advanced because of

litigation around the deadline?

A It was. A number of organizations challenged Commissioner

Gottlieb's decision in federal court, and a federal judge

issued an order that moved up the deadline to what at the time

was May of 2020; that was ultimately extended to September 9,

2020 due to the pandemic.

Q And I want to ask you about a couple of pathways to get

marketing authorization. Could you explain what a premarket

tobacco application or PMTA is and what a substantial

equivalence application is?

A Sure. There are effectively three pathways for tobacco

products to obtain FDA marketing authorization. The PMTA,

premarket tobacco application, is the presumptive pathway;

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however, suppliers have a couple of options to seek

authorization through other pathways, either substantial

equivalence or exemption from substantial equivalence. 

The latter two effectively require a comparison

between your new product and one of these grandfathered

products that I have described earlier, and proving to the

agency that whatever differences there are between those

products, they do not, quote, unquote, raise different

questions of public health.

Q Based on your extensive knowledge and experience with the

industry, for electronic cigarettes particularly, was the

substantial equivalence or substantial equivalence exception

pathway possible for most electronic cigarette products?

A Generally not. Certainly none have been authorized through

those pathways, I am not aware of anybody that has even filed

through those pathways.

And the issue, as I mentioned earlier, is you have

got to compare your product to one of these so-called

grandfathered products as it existed back in 2007. To the

extent these e-cigarettes were on the market in 2007, those

products are very different from the products that exist today;

relatively simple, low nicotine delivery, not a wide selection

of flavors. I'm not even sure that open systems, for example,

existed back then, so I guess I would be highly skeptical that

somebody could get one of these products through, for example,

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the substantial equivalence pathway.

Q All right. If one wanted to file a substantial equivalence

application or report for an electronic cigarette product in

order to keep their product on the market under deferred

enforcement discretion, to be entitled to that, would that

product have had to be on the market prior to August 8, 2016?

A Yes. As I mentioned earlier, this whole deferred

enforcement policy was dependent on you having your product in

the market by August 8, 2016, and if you were to file a request

for marketing authorization under whatever pathway, including

substantial equivalence, that request would have had to have

been filed by September 9th, 2020.

Q Is that the same answer for a PMTA, that in order to be

entitled to deferred enforcement discretion, the product had to

be -- the electronic cigarette product had to be commercially

marketed before August 8, 2016 and the PMTA submitted by

September 9th, 2020?

A That's correct. The enforcement policy is independent of

whatever pathway the supplier chose.

Q Now, you referenced a minute ago an open system electronic

cigarette. Could you explain the difference between an open

system electronic cigarette and a closed system cigarette

electronic cigarette?

A I can. A closed system contains this consumable, like the

nicotine liquid, either that or it's designed for use with

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cartridges containing the consumable that's sold by the

supplier.

An open system would not contain any nicotine or

liquid at all and allows the consumer to choose what they want

to put in it.

Q And you referenced a cartridge, is there a difference

between a cartridge based electronic cigarette, based on what

FDA has historically done, and a disposable electronic

cigarette?

A There is. I kind of liken it to a razor blade, just like

you have disposable razors, as well as razors that are designed

to be used, you know, with replaceable cartridges, it is

basically the same concept with a disposable e-cigarette. 

Once the consumable that is in there is depleted, the

consumer disposes of it. The cartridge based ones, the

consumer, once the cartridge is depleted, they would replace it

with a new cartridge, periodically charging the battery along

the way.

Q Mr. Haynes, could you turn to Exhibit D2 in the binder.

This is already in evidence by stipulation, and I'll ask you if

you could explain generally the significance of this FDA

guidance for industry.

A I have Exhibit 2 and I'm familiar with it.

As I mentioned earlier, FDA had an enforcement policy

around premarket authorization requirements when the deeming

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regulations were promulgated. At some point, late 2019 to

early 2020, FDA decided that that should change.

What FDA decided to do was to subject a defined

category of electronic cigarettes to immediate enforcement

action if they did not have marketing authorization, which none

of them did at the time.

And so if you had a cartridge based -- cartridge or

pod based electronic cigarette that offered flavors in anything

other than tobacco or menthol, those products were subject to

immediate enforcement action unless and until FDA issued

marketing authorization.

The end result was this defined category of cartridge

based products in flavors, other than tobacco and menthol, that

had to come off the market immediately.

Q Were there any exceptions to that change for disposable

electronic cigarettes that would be flavored?

A There were. In a footnote, FDA specifically said that

disposable products were not subject to this modified

enforcement policy, so they remained subject to the default

rules, the default enforcement policy that I mentioned earlier.

Q Circling back to the topic of a PMTA, a premarket tobacco

application, just to give the Court an idea, can you give a

general estimate or sense, based on your experience, of the

cost of preparing a robust PMTA for an electronic cigarette.

A In my experience, to prepare a robust PMTA, one that

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adheres to FDA guidance regulations in the Tobacco Control Act,

performing all the studies that FDA seems to want, somewhere

between five and up to 10 million dollars per product.

THE COURT: So if you were not commercially marketing

your product as of that date of August 2016, and it is an open

system that doesn't itself contain nicotine, what do you do if

you want to sell it in the United States?

THE WITNESS: If that open system is a, quote,

unquote, tobacco product as I talked about earlier, you need to

first seek and obtain FDA authorization, as I mentioned, likely

through the PMTA pathway.

THE COURT: All right. Please continue.

BY MR. HEYER: 

Q In your experience, does FDA require premarket

authorization for electronic cigarette components even if they

are sold alone without any e-liquid or other nicotine

containing substance?

A Absolutely. If this is a component as mentioned in your

question, then it is by definition considered a tobacco product

that is subject to FDA authority.

Q Would that be the case for batteries for electronic

cigarettes sold alone?

A That is correct. The deeming regulation specifically

mentions a battery as being a, quote, unquote, component.

Q How, in your experience, does FDA determine whether a

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vaporizer is considered to be a tobacco product or not?

A I'm going to assume, for purposes of this question, that

the vaporizer does not actually have tobacco or nicotine in it,

so then that goes to the question of whether the vaporizer is

considered a component or part.

As I mentioned before, the definition of a tobacco

product includes components or parts. When FDA issued the

deeming regulations, it defined components or parts, and the

definition -- I'm paraphrasing here -- is any software or

assembly of materials, basically anything that is either

intended or reasonably expected to be used with the consumption

of a tobacco product or that can affect a tobacco product's

performance or characteristics.

Q I apologize if this is repetitive of the Court's question,

but in your experience, has FDA taken enforcement action

against open system cigarettes in the past?

A It has.

Q If you can turn, please, sir, to Defendant's Exhibit 5 in

the binder in front of you, and I'll ask you if you recognize

that document.

A I do recognize Exhibit 5. It is a warning letter that FDA

issued in April of 2020 to a company named E-Cig, LLC.

Q And this is already in evidence. Based on your -- let me

ask you this: Based on the contents of this warning letter,

have you reached any conclusions as to whether FDA itself had

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concluded that the product at issue was a tobacco product?

A The FDA concluded that the subject products, both of which

are open systems, are FDA regulated tobacco products.

Q And typically in a warning letter that the FDA issues, what

is FDA looking for the recipient of the warning letter to do in

your experience?

A FDA is telling the recipient that we believe we regulate

you and we believe you are not in compliance, please tell us

why you think you are in compliance or implement corrective

action.

Q All right. And turning to Defendants' Exhibit 6, do you

recognize --

THE COURT: Before you proceed, so when you refer to

corrective action in the case of a company like this E-Cig,

what does that mean at the end of the day; stop selling?

THE WITNESS: In this particular context, the only

corrective action that would be in compliance with the law

would be to stop selling, yes, Your Honor.

THE COURT: And that's because you would have to go

through that lengthy and expensive process to obtain the

authorization, which you probably won't get, is that your view?

THE WITNESS: I agree that they would first have to

go through the process; I agree that it is lengthy and

expensive. It is possible, as evidenced by the fact that FDA

has issued marketing orders, but it is difficult.

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THE COURT: But there have been authorizations

granted to vaporizers, let's say, open system vaporizers that

don't itself contain nicotine.

THE WITNESS: Not really. I know a number of those

applications are pending. 

I say not really because FDA has given authorizations

to cartridge based systems. Part of those authorizations

included the actual device that's designed to be used with the

cartridge, the device itself does not contain nicotine. So

literally, the FDA has given authorization to devices, but

those devices were specifically designed for use with

cartridges.

BY MR. HEYER: 

Q Mr. Haynes, if you look at Defendants' D1, this is, again,

already in evidence, but I'll ask if you recognize this as a

list of products, electronic cigarette products, for which FDA

has already given marketing authorization?

A I see D1 and that appears to be a current list of products

that FDA has authorized under the PMTA pathway.

Q And to your knowledge, if you have such knowledge, and if

you don't maybe a reasonable expectation, are there

applications for open system devices, electronic cigarettes,

pending still before FDA, PMTAs pending before FDA that have

not received a decision one way or the other?

A I am aware of that, and yes, there are PMTAs that were

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submitted by the September 9, 2020 deadline that have not

received final action from FDA.

Q Okay. Sir, if you look to Defendants' D6 in your binder,

I'll ask if you can -- again, this is already in evidence, I'll

ask if you are familiar with this warning letter.

A I am. This is a warning letter that was issued by FDA in

April of 2020 to Shenzhen Uwell Technology.

THE COURT: I'm sorry, to go back for a minute,

Defendants' Exhibit 1, was that previously admitted?

MR. HEYER: I think all of these were subject to

stipulation, if I'm correct.

MS. SHUFFLEBARGER: Judicial notice.

MR. HEYER: Judicial notice, I'm sorry.

THE COURT: Defense 1, okay.

MR. HEYER: This was the first request for judicial

notice, Your Honor.

THE COURT: All right. I think you were going back

to another exhibit.

BY MR. HEYER: 

Q D6, I think we are on. In looking at the second page of

this warning letter to this company called Shenzhen Uwell

Technology dated April 27, 2020, I'm going to direct your

attention, Mr. Haynes, to the second page about halfway down.

Do you see the four bullet points there that are listing four

different products?

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A I do.

Q I'm going to ask you about the latter three products. Have

you had an opportunity to look into the design of the Uwell

Caliburn and pod kit, the Uwell Caliburn and Koko, K-O-K-O,

kit, and the Uwell Yearn, Y-E-A-R-N, pod system?

A I have, I have looked at all three of those products

depicted on Uwell's website.

Q And we will look at those websites in a second, but in

summary, are those open system electronic cigarettes to your

understanding?

A They are. They all offer the consumer the ability to

effectively take their own consumable and put it in the device.

Q If I could have you turn to Defendants' Exhibit 16, sir,

and this is not in evidence yet, so I'll ask if you can

identify this.

A Exhibit 16 is a printout from Uwell's website that I

mentioned I looked at earlier.

(Evidence identified as Defense Exhibit No. 16.)

BY MR. HEYER: 

Q And is this a fair and accurate printout of what you saw on

the website?

A I believe it is.

Q Okay.

MR. HEYER: Your Honor, I move the admission of

Defendants' Exhibit 16.

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THE COURT: Any objection?

MR. ROTHMAN: I don't have objection to authenticity.

I don't think it is relevant, but I don't object to it based on

authenticity.

THE COURT: And so your relevance objection is?

MR. ROTHMAN: This exhibit doesn't have anything to

do with my client's product, nor did his testimony about the

last two exhibits. So I don't understand the relevance of it,

but I'm trying to give opposing Counsel leeway to make his

record.

THE COURT: Right. So it's relevant, according to

Defendant, to establish its unlawful use defense, then it

arguably has some relevance.

MR. ROTHMAN: I understand the unlawful use defense

as it relates to a different product --

THE COURT: Right.

MR. ROTHMAN: -- depicted in this exhibit.

THE COURT: All right. I understand that it is a bit

attenuated, but I think under the circumstances and the Court's

decision to permit Defendant to make a record on this legal

issue, I'll allow Exhibit D16 to be admitted over Plaintiff's

partial objection.

(Evidence admitted as Defense Exhibit No. 16.)

BY MR. HEYER: 

Q Mr. Haynes, do you understand Exhibit D16 to establish and

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demonstrate the Uwell Caliburn product that was listed in

Exhibit D6, the warning letter?

A I do.

Q And does that show -- does Exhibit D16 show it is an open

system on the fourth page of that exhibit?

A It does. There are different pages that depict an empty

pod that is designed for the consumer to fill with their own

e-liquid.

Q On the second page, does it indicate it's a refillable pod?

A That's what I was specifically thinking of, the reference

to a refillable pod effectively, by definition, makes it an

open system.

Q I'll have you look at Exhibit D17, and again, is this a

website that you visited?

A It is. It looks like this is another printout from the

Uwell website.

(Evidence identified as Defense Exhibit No. 17.)

BY MR. HEYER: 

Q Okay. And is this a fair and accurate printout of what you

saw on the Uwell website for the Uwell Yearn electronic

cigarette product?

A I believe it is.

MR. HEYER: Your Honor, I move the admission of

Defendants' Exhibit 17.

MR. ROTHMAN: No objection.

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THE COURT: All right. Defense 17 is admitted

without objection.

(Evidence admitted as Defense Exhibit No. 17.)

BY MR. HEYER: 

Q Mr. Haynes, do you have an understanding as to whether at

least one of the versions of the Uwell Yearn is an open system

version as opposed to a prefilled cartridge version?

A I do understand and from looking at the website, it looks

like at least one of the versions that are depicted there is an

open system. They offer two options for the consumer with that

product; one is a pod that consumers can evidently buy

prefilled, another is a pod that consumers can buy empty that's

designed to be refilled or filled -- I'm sorry, filled

initially by the consumer with a consumable liquid of their

choice.

Q I'll have you turn to Defendants' Exhibit 18.

MR. HEYER: Did I move in Exhibit 17? I'm sorry, if

I haven't, I'll move --

THE COURT: You did.

MR. HEYER: I'm sorry.

BY MR. HEYER: 

Q Can I have you turn then to Defendants' Exhibit 18, and can

you describe what is Defendants' Exhibit 18?

A Exhibit 18 looks like another printout from the Uwell

website depicting a different product.

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(Evidence identified as Defense Exhibit No. 18.)

BY MR. HEYER: 

Q Is the product depicted the Caliburn and Koko product that

was described in Exhibit D6?

A I believe it is.

Q Okay. Is this a fair and accurate printout of what you

found on the Uwell website about this product?

A I believe it is.

MR. HEYER: Your Honor, I move the admission of

Exhibit 18.

THE COURT: Any objection?

MR. ROTHMAN: No objection.

THE COURT: Defense 18 is admitted without objection.

(Evidence admitted as Defense Exhibit No. 18.)

BY MR. HEYER: 

Q And does this website, and particularly on the second,

third and fourth pages, indicate whether this is an open system

electronic cigarette?

A It does, and it indicates that it's an open system by

virtue of the reference on the third page, and I'm noting

specifically the words refillable pods. That, by definition,

is an open system.

Q And again, going back to Exhibit D6, the warning letter on

these products, was FDA taking enforcement action in your

estimation against these products because they lacked marketing

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authorization under the Food, Drug and Cosmetic Act?

A In my opinion, this was an enforcement action. A warning

letter is, by definition, an enforcement action, and what FDA

says in the letter is that they are taking this action because

these products appear to be unauthorized new tobacco products.

Q Are you familiar with the Plaintiff, VPR's, products that

are marketed under the term ELF?

A I am, I'm aware of two of them.

Q Can you describe the two products that you are aware of.

A Both of the products are vaporizers that are designed for

use by consumers, evidently to include nicotine.

Q And have you had an opportunity to form any opinions

regarding whether VPR's products marketed under the term ELF

are tobacco products?

A I have. Although the products do not themselves contain

ingredients that are made or derived from tobacco or nicotine,

it is my opinion that these products would be classified as

tobacco product components; and therefore, tobacco products

themselves because they are either -- they are both intended or

reasonably expected to be used with the consumption of a

tobacco product.

Q Why do you say that they are intended or reasonably

expected, in your estimation, to be used with consumption of a

tobacco product?

A I have two reasons for that. One, VPR refers to these

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products as e-cigarettes or electronic cigarettes. In my

experience in the industry, you would not refer to a product as

an electronic cigarette if its intended use was not -- or at

least one of the intended uses was not with tobacco or

nicotine, I have just never heard that term used to refer to a

product that has a different intended use.

Second, I'm aware that VPR's principal has indicated

an expectation on behalf of VPR that these products will, in

fact, be used to consume nicotine, and that seems that directly

tracks the definition that I mentioned earlier that FDA put

into the deeming regulations.

Q Have you formed any opinion as to whether VPR's products

marketed under the term ELF are compliant with FDA regulations

and enforcement policies?

A I do have an opinion on that subject. Assuming they are

tobacco products, as I believe they are, they would not be in

compliance with the requirements of the Tobacco Control Act,

most notably the premarket authorization requirement.

As I mentioned earlier, in order to avail yourself of

this compliance policy, a product had to be on the market by

August 8, 2016. I understand these products were not sold in

the U.S. until 2017; therefore, they would have had to first

obtain authorization before selling these products.

I also understand that they have neither sought nor

obtained marketing authorization for these products from the

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FDA.

THE COURT: Let me ask you a few questions. You

formulated your opinion, I take it by perhaps extrapolating how

the FDA has interacted via warning letters with other

companies?

THE WITNESS: I think that's fair to say. I cannot

tell you that I've seen a specific example just like this.

For example, I'm not aware of a circumstance where

somebody had testified and said, I expect that my consumers

will use this with tobacco or with nicotine, rather, inferring

that that is something that FDA, based on the definition, would

consider a tobacco product, but I have seen the question of

intended or reasonable use could depend on different factors.

THE COURT: And that's, I think, inherently fact

specific, correct?

THE WITNESS: It is, it is. It's fact specific and

could depend on a variety of things, yes.

THE COURT: All right. You may continue.

MR. HEYER: Okay.

BY MR. HEYER: 

Q Have you formed an opinion, Mr. Haynes, as to whether VPR

is marketing its ELF branded products in violation of the Food,

Drug and Cosmetic Act?

A I have, and I believe these the two products we are talking

about are not lawfully marketed under the Tobacco Control Act,

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again, because they were not introduced by August -- well,

first of all, they are new tobacco products because they were

not introduced as of February 15th, 2007; they did not

successfully avail themselves to the compliance policy because

the products were not introduced until 2017; and they have not

obtained marketing authorization as evidenced by FDA's public

list of products that have received marketing authorization.

MR. HEYER: Thank you, Your Honor.

THE COURT: All right, thank you. 

Any cross-examination?

MR. ROTHMAN: Yes, Your Honor, and I may need the

computer connection.

THE COURT: All right.

MR. ROTHMAN: Just to show the witness exhibits, if

that's okay.

THE COURT: Yeah, that's fine. It's 10:17, it may be

a good time to take a 15 minute break, so we will recess until

approximately 10:30.

(Recess was had at 10:17 a.m.; and the proceedings 

resumed at 10:31 a.m.)

THE COURT: You may be seated.

MR. ROTHMAN: Your Honor, may I?

THE COURT: Please proceed.

MR. ROTHMAN: Thank you, Your Honor.

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CROSS-EXAMINATION

BY MR. ROTHMAN: 

Q Mr. Haynes, good to see you again. Remember, I took your

deposition a couple of days ago?

A I do.

Q All right. You used a term during your deposition and I

asked you to define it, the term was ENDS, E-N-D-S, do you

remember that?

A I do.

MR. ROTHMAN: I'm not sure who that is, I hope it is

not me.

THE COURT: I don't know why that's happening.

BY MR. ROTHMAN: 

Q ENDS, that was the term you used. What does that stand

for?

A ENDS is an acronym that FDA and others use, and it stands

for electronic nicotine delivery systems.

Q Okay. Do you remember I asked you questions about ENDS

products, and you gave me answers about ENDS products during

the deposition, do you remember having that back and forth with

me?

A I do recall that, sir.

Q Okay.

MR. ROTHMAN: Your Honor, may I ask you please to

show the witness Defendants' Exhibit, 19, I believe it was

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handed up, it is the ELF product.

BY MR. ROTHMAN: 

Q Is that product, Defendants' Exhibit 19, is that an ENDS

product?

A It appears to be. I will tell you I am not terribly

familiar with this particular product, but I see that it has

the mandatory nicotine -- FDA nicotine warning on it, which

leads me to believe that it actually has nicotine and this

looks like a typical or one of a typical ENDS product.

Q Okay.

THE COURT: And ENDS, again, is electronic nicotine

delivery system?

THE WITNESS: Yes, Your Honor.

BY MR. ROTHMAN: 

Q No electronic nicotine delivery system product has received

marketing authorization besides tobacco variance, isn't that

true?

A Mostly. As I mentioned in my testimony earlier, no

flavors, other than tobacco variants, have received

authorization. Technically devices have that don't have any

consumable at all, so it would be a tobacco variant plus the

devices that they can be used with.

Q And that ENDS product that you are holding there,

Defendants' 19, is a flavored product, right?

A I cannot tell from looking at this what flavor this is.

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Q Isn't that -- I'm sorry, doesn't that say cigar flavor?

A It says Cuba cigar.

Q Cuba cigar.

A And candidly, I don't know if FDA would consider this to be

a tobacco variant or not. A cigar is made of tobacco, so I

don't know what FDA would consider this.

I guess I typically would consider a cigar to be a

tobacco variant, but I haven't tried this product, I haven't

seen it before today.

MR. ROTHMAN: I show the witness Plaintiff's Exhibit

22 for identification, please.

THE COURT: Have you shown that to Mr. Heyer?

MR. ROTHMAN: Yes.

THE COURT: Okay, you may.

BY MR. ROTHMAN: 

Q Take a look at Plaintiff's Exhibit 22 for identification.

Is that the same ELFBAR brand product as Defendants'

Exhibit 19?

A Yes, it appears to be the same, other than the flavor

variant.

Q Okay. What is the flavor variant there?

A The flavor listed on this one is strawberry ice, which is

not a tobacco flavor.

(Evidence identified as Plaintiff's Exhibit No. 22.)

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BY MR. ROTHMAN: 

Q Okay. So since no flavored, including strawberry flavored

products, have received authorization, the product that you are

holding as Plaintiff's Exhibit 22 would be an unauthorized

product.

MR. HEYER: Objection, Your Honor, relevance and

beyond the scope.

THE COURT: Overruled.

THE WITNESS: I don't believe that this product

that's depicted on Exhibit 22 has received FDA authorization

both because it does not appear on FDA's list of authorized

products and because FDA has not authorized any nontobacco

variants.

BY MR. ROTHMAN: 

Q Okay. You testified earlier about enforcement action. Her

Honor was asking you about enforcement action, and you

testified that you viewed warning letters, such as what's been

marked as D5 -- can you see it on the monitor?

A I can.

Q That you viewed warning letters to be a type of FDA

enforcement action, is that right?

A That is correct.

Q Okay. What other types of FDA enforcement actions, beyond

warning letters, are there? For example, could the FDA go into

court and seek an injunction?

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A Yes. There are a variety of enforcement measures available

to the FDA under the Food, Drug and Cosmetic Act. In my

experience, at least with tobacco products, warning letters are

by far the most common, but yes, they can go into court, the

FDA can go into court and seek an injunction, they can seek

fines, it can block the importation of products, it has an

array of remedies.

THE COURT: Just to be clear, all of those things are

things the FDA would do?

THE WITNESS: Those are all things FDA can do.

THE COURT: Not a court in a private suit, for

example.

THE WITNESS: Correct. As I mentioned earlier, Your

Honor, I do not believe that there is a private right of action

to enforce the Food, Drug and Cosmetic Act. That is, as I

understand it, the sole province of FDA.

BY MR. ROTHMAN: 

Q And FDA could also, and has in certain situations,

especially in situations that pose dangers to health and

safety, gone to the Department of Justice and sought Department

of Justice assistance in prosecuting violators of the Food,

Drug and Cosmetic Act, isn't that true?

A Yes. I have heard of FDA working with the Department of

Justice to pursue more aggressive enforcement actions beyond

warning letters. 

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As I understand it, the Department of Justice

approached the companies at issue and sought a consent decree,

otherwise the Department of Justice indicated that it would

pursue the matter in court.

Q But sitting here today, with respect to either my client's

product or the Defendants' product that you have there in

Exhibit 22, there has been no such FDA enforcement action.

A All I can say is that I have not seen FDA enforcement

actions. I believe I checked -- warning letters are available

in a database on FDA's website. I do not believe the VPR

products appear in the database of FDA warning letters. I

cannot say for sure about FDA -- other FDA enforcement actions

against either company's products because those actions are not

typically made public. 

The example I mentioned earlier of DOJ involvement,

if I recall correctly, was something that was shared with the

press and I learned about it that way, but the only thing that

is typically made public is a warning letter as is depicted on

Exhibit 5.

Q Okay. We looked at Exhibit 5, this is a warning letter

dated April 27th, 2020, correct?

A That is correct.

Q Now, the product that we saw the exhibit for that

corresponds to 25, is that this product in Defendants' Exhibit

16? It's on the screen if you want to glance at it.

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A I was just going back to look at Exhibit 6 to verify.

Yes, that product depicted on Exhibit 16 is the same

one that's depicted on Exhibit 6.

Q I'm sorry, Exhibit 6 or Exhibit 5, I want to make sure we

match them up correctly?

A I believe it is 6 and 16.

Q Okay. So let's go back and look at 6.

Here is Exhibit 6, the Shenzhen Uwell Technology

Company warning letter, and that's also April 27, 2020, right?

A That is correct.

Q That one matches to Defendants' 16, which is here, right?

A That is correct.

Q The date of this printout on the upper left-hand corner --

it's small, can you see it -- doesn't that say November 18,

2022?

A It does.

Q So this product that got an FDA warning letter two years

ago was still on the website in 2022 advertising it for sale,

correct?

A It is definitely listed on -- it is depicted on the

website. What I don't know one way or the other is whether

this product is actually sold in the U.S., I'm not saying it is

or isn't, I just don't know.

Q Well, according to the lower left, it's at the URL

myuwell.com. That's not a Chinese domain name or anything.

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A That appears to be the case, yes.

Q And this Uwell product is actually advertised for use with,

as we see on page two, e-juice, right?

A I see those words on that web page, yes.

Q And e-juice is commonly used as a term to refer to

e-liquid, which is also a term that refers to liquid nicotine

that is vaped in products like this.

A That would be my understanding. If somebody uses the term

e-juice or e-liquid, I would typically think that that product

contains nicotine. I know other people refer to it more

generically. What the intent was here, I do not know.

Q And then going back to Exhibit 5, this warning letter from

April 27, 2020, that one corresponds to the products shown in

Exhibits 17 and 18, is that right?

A I actually think that Exhibit 6 correlates to Exhibits 16,

17 and 18.

Q All right. Just as we saw before, these printouts were all

from -- I don't know -- the last two weeks indicating that

these products may, indeed, continue to be for sale, despite

having received warning letters two years ago, isn't that

correct?

MR. HEYER: Objection, calls for speculation.

THE COURT: I'll sustain as worded. You can reframe

it.

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BY MR. ROTHMAN: 

Q Doesn't this appear to indicate the products are still for

sale in the United States, despite the fact that warning

letters were sent concerning them two years ago?

A Again, I cannot tell for sure based on the simple fact that

there is a website that is in English and available to people

in the U.S. that these products are for sale in the U.S. I'm

not disputing that, I just do not know. It is -- I guess you

could say it is possible.

Q Okay. So it's possible that they received FDA warning

letters advising them to stop marketing the products in the

U.S., because FDA's jurisdiction is only the United States,

correct?

A That is correct.

Q But they left the websites up even though they are not

marketing and selling them in the U.S.?

A That is possible.

Q Possible, okay. But you don't know one way or the other.

A I do not.

Q Okay, okay. So now how many -- do you know how many

employees there are at FDA approximately today total?

A I have no clue about the number of employees at FDA. We

most directly engage with the FDA Center for Tobacco Products,

they have different centers that are responsible for different

products.

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At the Center for Tobacco Products, I'm thinking it

is in the thousands. I know I have heard that number, those

employees have a variety of responsibilities.

Q That's fairly consistent with what I have heard, too, that

there are about 18,000 to 20,000 employees at FDA generally and

of that, there are about a thousand, maybe a few more than

that, at the Tobacco Center.

A I believe it is significantly more than a thousand --

Q Okay.

A -- at the Tobacco Center, but I could be wrong.

Q Do you have any idea how many products there are like the

ones we see in these exhibits for sale, marketed and

distributed in the U.S.?

A I do not, but I believe it is a very large number.

Q So FDA's authority is exclusive, too, isn't it in this

area? 

As opposed to sharing it with state regulatory

authorities, isn't FDA preemption fairly extensive in this

area?

A You sort of asked two different questions. I mean, I

consider preemption a separate principle from coextensive

enforcement authority.

I mean, I will say this: As I mentioned earlier, I

don't believe there is a private right of action to enforce the

FDA. From time to time, you will see states and localities

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taking enforcement action vis-a-vis FDA requirements, I can

think of discrete examples of that.

I would not say that's the norm and so to answer your

question, generally speaking, FDA is expected to enforce the

laws it's been tasked with enforcing.

Q I just want to make sure so we have it, the deeming

regulations that you referred to earlier, those are at

21CFR1143.1, correct?

A I am not great on memorizing citations, but I do not

dispute that.

Q Okay. I'll just put it up on the screen, just so we are

clear, should the Court need to refer to it. It's this

regulation that talks about here, Component or part means any

software, et cetera, that was one of the issues and there are

some other definitions in here that may be relevant.

A Yes, that is the definition that I mentioned earlier.

Q Okay.

MR. ROTHMAN: No further questions.

THE COURT: Any redirect?

MR. HEYER: Just briefly, Your Honor.

REDIRECT EXAMINATION

BY MR. HEYER: 

Q Mr. Haynes, in your experience, have you ever seen websites

in the English language advertising electronic cigarettes or

tobacco products that to your knowledge were not necessarily

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marketed or sold in the United States?

A I have.

Q Okay. And are you aware of whether electronic cigarettes

are marketed and sold in other English speaking countries, such

as United Kingdom, Australia and Canada?

A I am aware that electronic cigarettes are marketed in

numerous English speaking countries.

Q Are you -- have you ever attended or are you aware of any

presentations or explanations publically by FDA about the

different increasing enforcement steps that they typically take

in the case of noncompliance?

A I have heard that -- from FDA on that. As I mentioned

earlier, I attend the Food and Drug Law Institute conferences

and both the center director, who is in charge of the tobacco

at FDA, speaks at these things, as well as the head of the

office of compliance and enforcement and both of those people

routinely speak to those issues.

Q In your experience, has FDA repeatedly described warning

letters as one step in the exculpatory enforcement actions that

they may take against noncompliant products?

A That's exactly right. That's typically the first step that

the target sees, is a warning letter and other steps follow

potentially.

MR. HEYER: Thank you, Mr. Haynes. No further

questions.

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THE COURT: All right. Thank you. 

Thank you very much, Mr. Haynes. I found your

testimony very helpful and clear, so thank you.

(Witness excused)

THE COURT: All right. Defense, please call your

next witness.

MR. HEYER: Your Honor, Defense calls Haitham

Shriteh.

THE COURT: Good morning, sir.

THE WITNESS: Good morning, Your Honor.

 HAITHAM SHRITEH , DEFENSE WITNESS, SWORN 

THE COURTROOM DEPUTY: Please have a seat and then

state and spell your first and last name for the record.

THE WITNESS: My name is Haitham Shriteh,

H-A-I-T-H-A-M; last name, S-H-R-I-T-E-H.

MR. HEYER: May I proceed, Your Honor?

THE COURT: You may.

DIRECT EXAMINATION

BY MR. HEYER: 

Q Mr. Shriteh, which Defendant are you affiliated with?

A Safa Goods, S-A-F-A, Goods, G-O-O-D-S, LLC.

Q And what is your title with Safa Goods?

A Operations manager.

Q Are you one of the owners of Safa Goods?

A I am.

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Q Where is Safa Goods located? 

A Port Charlotte; Port Charlotte, Florida.

Q And could you describe generally the nature of Safa Goods'

business.

A Yes, we are a vapor and smoke shop distributor.

Q Approximately how many employees does Safa Goods currently

have?

A Over 40.

Q And when was Safa Goods founded?

A 2018.

Q Did you have any experience in the electronic cigarette

industry prior to founding Safa Goods in 2018?

A Yes, through retail shops.

Q And could you explain, for the Court's benefit, when you

first got involved at all in the electronic cigarette industry.

A Sorry, one more time.

Q Could you explain when you personally first got involved in

the electronic cigarette industry.

A Yes. So I started in about 2016, working for a different

company wholesale, operating multiple retail shops, and

following that, we entered distribution in 2018 through Safa

Goods, which I currently own.

Q Okay. So would it be fair to say that at this point, you

have over six years of experience in the electronic cigarette

industry?

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A Yes, I do.

Q Okay. Approximately how many different electronic

cigarette products does Safa Goods sell?

A Over 1,000.

Q And can you explain to the Court here, to Her Honor,

generally how the channels of distribution work for electronic

cigarette products in your experience in the industry.

A So you generally have the manufacturer or the brand selling

to master distributors, who sell to distributors, who then

would sell to stores. Sometimes the master distributor

themself have some stores they sell to direct as well.

Q And Mr. Shriteh, if you can go slowly for the court

reporter.

A Sorry.

Q I try, I have to catch myself, too.

And where does Safa Goods fit into that chain of

distribution?

A It depends on the brand. So some brands, we are the master

distributor; some brands, we are the distributor. It depends

on negotiation with the brand and how we can operate.

Q All right. And not e-liquids sold in a bottle, but

electronic cigarette devices, let's say, where are most of

those manufactured in your experience?

A In China.

Q Okay. Now, before you became aware of this lawsuit filed

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by VPR, had you ever heard of any electronic cigarettes branded

as ELF?

A No, I have not.

Q Before this lawsuit was filed, had you ever heard of the

Plaintiff, VPR Brands?

A No, I have not.

Q Okay. So even though you are based here in Florida and VPR

is based in Florida, you had never heard of them before, is

that right?

A I have not heard of them before, no.

Q Okay. Did there come a time when Safa Goods started

distributing ELFBAR branded electronic cigarettes?

A Yes.

Q Okay. When did that start?

A December, we sampled it or tried it, but January is when we

actually started to sell the product.

Q Of 2022, is that right?

A January 2022.

Q Okay. And did there come a time, in your observation, when

ELFBAR branded electronic cigarettes started to become popular

with consumers?

A Toward the spring of 2022.

Q So the spring of this year?

A Yes.

Q And if you can, how would you rank the popularity of the

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ELFBAR brand of electronic cigarettes, say in the State of

Florida today?

A As far as I know, it is the number one product in the

market in Florida.

Q So even though you sell, you said, over 1,000 products, the

ELFBAR brand is the post popular product in your estimation? 

A Yes.

THE COURT: In what category?

THE WITNESS: Disposable e-cigarette category.

BY MR. HEYER: 

Q Go ahead.

A In the closed system category, if that's what you meant.

Q Are there any other electronic cigarette products, apart

from the closed system or disposable categories, that you

estimate are more popular in the State of Florida today than

ELFBAR brand?

A Can you repeat the question, sir.

Q Apart from the disposable category or the closed system

category, is there any other brand of electronic cigarettes

that in your estimation is more popular that ELFBAR in the

State of Florida today?

A More popular, no, I do not think so.

Q Approximately how much of Safa Goods' overall sales do the

ELFBAR branded electronic cigarettes represent?

THE COURT: I don't understand the question, apart

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from the disposable category or the closed system category, so

what -- can you say that more directly so I can understand.

MR. HEYER: Yeah.

BY MR. HEYER: 

Q Taking all electronic cigarettes as a whole, Mr. Shriteh,

is there any, in your estimation, any other brand of electronic

cigarette in the State of Florida today more popular than the

ELFBAR brand?

A As far as we know at Safa Goods, ELFBAR is number one

product in the market.

THE COURT: All right.

BY MR. HEYER: 

Q Can you estimate, of Safa Goods' overall sales, how much of

those sales are represented by the ELFBAR brand of electronic

cigarettes?

A Over 50 percent of our sales.

Q Okay. Have you had to hire any additional employees this

year to handle the demand for the ELFBAR brand of electronic

cigarettes?

A Yes, about doubled.

Q Okay. Approximately how many employees have you had to

take on?

A About you could say -- if I have to put a number, 19.

Q Okay.

THE COURT: Nineteen extra employees?

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THE WITNESS: Yes, ma'am.

BY MR. HEYER: 

Q Now, as a result of being named as a -- Safa Goods being

named as a Defendant in this lawsuit, are you familiar with VPR

Brands' auto concealer ELF electronic cigarette?

A No.

Q Okay.

A If I could add to the previous question about the

employees, and we are hiring more to keep up with ELFBAR.

Q Okay. So I think your testimony was you really started

selling the ELFBAR at any significant volume in January of this

year.

A Yes.

Q How would you describe the trajectory of sales, as it were,

of ELFBAR over the course of the year?

A Rapidly growing.

Q Right up to the present, is that the case?

A Yes.

Q In your position with Safa Goods, do you frequently attend

electronic cigarette industry trade shows?

A Yes.

Q Around the country?

A Yes.

Q Do you frequently visit vape shops and smoke shops?

A I often do.

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Q Could you explain what a vape and smoke shop are.

A A vape shop would be -- would sell different e-cigarette

products; you have the e-liquids, the hardware, the

electronics, disposables. 

Smoke shops would be selling alternative vaporizers,

water pipes and so on, and you also have a mix of some stores

that do both vape shops and smoke shops.

Q And do you --

THE COURT: How many total brands do you distribute?

THE WITNESS: A number off top of my head is hard, at

least 50 brands.

BY MR. HEYER: 

Q And in the course of your job responsibilities, do you

frequently visit convenience stores to see what electronic

cigarette products are being sold?

A Yes.

Q Okay. How often do you visit the different retail outlets

that sell electronic cigarette products?

A If I have to put a number, this year, I've visited 25 at

least.

Q Okay. And do you monitor online what other distributors

that are competitors of yours are selling in terms of

electronic cigarette products?

A Yes, I do, on a weekly basis, actually; this is how we can

see how the market is going.

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Q If you can estimate, how many of your competitor

distributors' websites would you say you look at on a weekly

basis?

A About ten.

Q Okay. In all of the years you have been doing these

activities, whether it's trade shows, physical retail outlets

or online, have you ever seen an ELF branded product from VPR

in any of those outlets as it were?

A No.

Q Have any of your customers ever inquired about selling

VPR's ELF branded electronic cigarettes?

A No.

THE COURT: When did your sort of consumer research

really ramp up for this knowledge that you've acquired going to

these various locations?

THE WITNESS: Can you repeat that question?

THE COURT: Sure. What I'm trying to understand,

what is the timeline for your general understanding of what is

being sold in these locations? Is it something you have been

doing routinely over the last six years on a consistent basis

or --

THE WITNESS: I understand. So I came from retail

shops, that's how I got into the business, so I generally -- to

help Safa grow, I generally try to understand the market, so I

generally try my best to visit, as much as I can, vape shops in

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the area, wherever I go, California, Florida, any other

different cities to understand the market better to be able to

bring better products to the distribution chain.

THE COURT: And when would you have started that kind

of on-the-ground research in a rigorous way?

THE WITNESS: Before I even entered the vape

industry, ma'am.

THE COURT: Which would have been when?

THE WITNESS: 2015.

THE COURT: All right, thank you.

BY MR. HEYER: 

Q To your knowledge, has anyone in the electronic cigarette

industry, whether they are your customer or not, ever indicated

any confusion between the ELFBAR products like you sell and

VPR's ELF branded products?

A I never had a customer even mention ELF as a brand besides

ELFBAR.

Q Okay. And speaking specifically about ELFBAR as a brand --

A Yes.

Q -- can you just explain if there is, to your -- your

understanding, a difference between disposable electronic

cigarettes and open system electronic cigarettes?

A Yes. You have the older system, the open system, which

included more parts, more maintenance, a little more technical

for the end user, and we have atomizers to refill the tank,

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e-liquids, sometimes batteries, different components to deal

with, whereas the closed system is a more easy on-the-go

product; less maintenance, very convenient for the end user,

easy as opening the wrap and beginning to use. Sometimes it is

a prefilled pod, where you just have to add the pod to the

hardware and that is it.

Q In taking open systems like you just described versus --

and again, not specific to ELFBAR, but disposable electronic

cigarettes more generally, which type would you say or

subcategory, as it were, is more popular with consumers right

now?

A Disposable, the disposable category.

Q For how long, if you could estimate, has that been the case

in your experience?

A It began in 2018 --

Q Okay. 

A -- from my experience.

Q And historically, has Safa Goods almost always sold more

disposables than more open system electronic cigarettes?

A Yes, it increased in the past two years, yes.

Q What increased, if you can be specific?

A The disposable category has become more popular in the past

two years.

THE COURT: What does it means to be disposable; you

use it one time and then you throw it in the trash or what?

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I'm not sure I understand what you mean exactly by disposable.

THE WITNESS: So the word -- it's like the example

that was used earlier with the razor, it is a one time use

until it is done. A disposable can be rechargeable or

nonrechargeable, based on its style, but you use it and throw

it away when it's done.

THE COURT: So if you want to smoke one e-cigarette,

you buy one disposable?

THE WITNESS: Yes. At the end of the day, it is

about convenience. So with the disposable, you use it until it

is -- until the e-liquid is out, and then you dispose of the

disposable afterward.

MR. HEYER: Maybe I can clarify with a question.

BY MR. HEYER: 

Q Mr. Shriteh, is it fair to say that a disposable is never

refilled or refillable by the consumer versus an open system

being filled and refillable by the consumer with new and

different e-liquid?

A Yes, it is a one time use.

THE COURT: How many, I guess, uses of the disposable

cigarette are possible, is it something that lasts for a month

or so, depending on daily usage? I'm just trying to understand

compared to a traditional cigarette in the old days how it

compares.

THE WITNESS: So it all depends. There is a set

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amount of e-liquid inside the disposable and the battery

capacity, if you look at it like a cigarette, right, you have

20 cigarettes in a pack, you have somebody who can smoke all 20

in one day, you can have somebody who can smoke all the

milliliters in one day as well. It depends on the end user and

it depends on the capacity of the liquid inside and the

battery.

THE COURT: Okay, thank you.

THE WITNESS: No problem.

BY MR. HEYER: 

Q Okay, Mr. Shriteh, I'm going to give you some questions

about some financial information for your company, and I'm

going to ask a few foundational questions first.

Do you have concerns about publishing to the general

public information on your profit margins on the sales of your

products?

A Can you repeat that question.

Q Do you have concerns about the public being aware, through

your testimony or through evidence in this case, the profit

margins from your sales of electronic cigarettes?

A By our nature, we are in a competitive market. If we have

competitors that are able to see our data, that could create

some extra problem for us in the future with competitors.

Q Okay. Do you keep your revenue and profit margin

information confidential within the company, on a need-to-know

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basis for company employees?

A Yes.

Q Okay. Is it fair to say you don't do any external

publishing of your revenues or your profits or profit margin

information?

A Yes.

Q Okay. Would you consider these types of information to be

a trade secret of your company?

A Yes.

Q Okay. Do you believe it would be harmful to your company's

competitive standing in the industry to have profits and profit

margin and revenue information publicly disclosed?

A Yes.

Q Okay. I'm going to hand you what's been marked as

Defendants' Exhibit 21.

MR. HEYER: If I can approach, Your Honor. Let me

get Your Honor a copy.

THE COURT: Does the witness have one, also?

THE WITNESS: Yes.

BY MR. HEYER: --

Q Without referencing the specific numbers, can you explain

generally what Exhibit D21 is, Mr. Shriteh.

A It is my revenue for ELFBAR sales and my gross profit.

(Evidence identified as Defense Exhibit No. 21.)

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BY MR. HEYER: 

Q Was Exhibit 21 prepared by you based on your company's

financial records that are created and maintained in the normal

course of Safa Goods' practice?

A Yes.

Q Is it fair to say this is a compilation or summary of what

those financial records show?

A Yes.

Q Okay.

MR. HEYER: Your Honor, I would move the admission of

D21 and also move, for the reasons we stated previously, to

seal it, and I know what Your Honor said about that.

THE COURT: Do I understand this is a document

limited to your ELFBAR sales?

THE WITNESS: This is based on revenue of ELFBAR

sales, yes, ma'am.

THE COURT: ELFBAR sales only, no other brand?

THE WITNESS: ELFBAR, yes.

THE COURT: During the period of 2022?

THE WITNESS: During the period of 2022 for the

revenue, yes.

MR. ROTHMAN: Aren't we looking at D21, I'm sorry?

MR. HEYER: Yes.

MR. ROTHMAN: Because I see October '21 through

October '22, I just wanted want to make sure, because there was

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another exhibit that didn't have '21 on it, and he just said

'22.

MR. HEYER: I don't think it references '21.

MR. ROTHMAN: Oh, I have -- wait, which one is it?

THE COURT: Off the record and confer with each other

on whatever it is you are showing.

(Discussion off the record.)

MR. HEYER: We gave Mr. Rothman -- we switched the

number on two exhibits.

THE COURT: I have D21 that references 2022 sales, is

that what we are on?

MR. ROTHMAN: We fixed it.

THE COURT: Okay. All right. Any objection to

admission of Defendants' Exhibit 21, setting aside the sealing

issue, Mr. Rothman?

MR. ROTHMAN: No, Your Honor.

THE COURT: All right. I'll admit D21, but it will

not be done in a sealed way. Merely labeling something trade

secret information or generally being concerned about

circulation of profit margins, revenues or profits is not

sufficient to warrant sealing for the reasons already stated,

nor is the fact that the company doesn't voluntarily share this

information in the ordinary course, so that's the Court's

ruling on the sealing request, but the information is admitted

as Defendants' Exhibit 21.

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MR. HEYER: Okay. Thank you, Your Honor.

(Evidence admitted as Defense Exhibit No. 21.)

BY MR. HEYER: 

Q And Mr. Shriteh, does Defendants' Exhibit 21 accurately

reflect Safa Goods' revenues and sales of ELFBAR products from

January 12th, 2022 to October 31, 2022?

A Yes.

Q Okay. And does Exhibit 21 accurately reflect your

company's gross profit margin that it applies to the sales of

products during that time period?

A Yes.

Q Okay. And does Exhibit 21 show accurately your total gross

profits from the sale of the ELFBAR electronic cigarettes

during that period?

A Based on the gross margin of Safa Goods, yes.

Q Okay. Now, looking at -- again, without stating specific

numbers, but looking at the sum of pieces sold column in the

sum of amount column, was there a time earlier this year when

you had any issues obtaining sufficient ELFBAR products from

the supplier?

A Yes.

Q Okay. And when was that time period?

A In July 2022.

Q Okay. And in that time period in the summer, did you

notice any other products enter the marketplace for the first

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time that you believe entered due to decreased supply of ELFBAR

branded products?

A Yes. We saw an increase in counterfeits and knockoff

products.

Q And when you say counterfeits and knockoff products, can

you explain what you mean and -- well, can you explain what you

mean?

A Well, there was a deficiency or lack of product in the

market and copy paste, counterfeit devices were introduced into

the market heavily.

Q When you say copy paste, can you explain what you mean?

A Copy paste of the device, the packaging, everything like

this product right here. And in addition, we had knockoffs

such as ELF Box, ELF Unlimited became a new product in the

market.

Q So am I understanding correctly there were other products

that were introduced that had the word ELF in the name as well?

A Yes.

Q Were you aware of any other products that used the term ELF

as their name or part of their name in the U.S. market before

2022?

A No.

Q If the Court were to enjoin Safa Goods from further sales

of ELFBAR products while this case remains pending, what would

the impact be on your business and your employees?

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A It would affect more than 50 percent of my revenue, which

would affect a number of employees as well.

Q What do you mean it would affect the number of employees?

A The business will not be able to operate with the number of

employees we currently have.

Q So would you have to layoff some employees?

A I would have to layoff, yes, sadly, yes.

Q Okay. And based on your experience to date, do you have

any expectation, if that were to happen, as to what may occur

to satisfy consumer demand that you currently see for the

ELFBAR disposable electronic cigarette products?

A As it happened in July, we would see the void filled with

counterfeits.

Q Okay. And do you have any -- apart from the fact that you

are not selling them, do you ever any other concerns about

these counterfeit products?

A With the counterfeits, you can't trust the quality where it

can increase health and safety hazards. You don't know what

the other parties, the counterfeits, are doing to the material,

they could be using cheaper material, which could be harmful.

MR. HEYER: No further questions at this time, Your

Honor.

THE COURT: Thank you. 

Any cross-examination?

MR. ROTHMAN: Yes, Your Honor.

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CROSS-EXAMINATION

BY MR. ROTHMAN: 

Q Help me with your last name, sir. Is it Mr. Shriteh?

A Shriteh.

Q Please forgive me in advance if I mispronounce it, I'm

going to do my best. Thank you for your time today, sir. I

want to ask you a few questions.

You just testified that there have been

counterfeiting issues where products with the ELFBAR name have

come on to the market that are not authentic ELFBAR products,

did I understand your testimony correctly?

A Yes.

Q And the concern you raised was about the quality of those

products, did I understand that correctly?

A Yes.

Q And potential threat to health and safety?

A Yes.

Q You don't do any of your own testing of those products,

correct?

A Can you elaborate what you mean.

Q In other words, generally in the industry, a distributor in

your position would rely on the source of the products to

provide the certificate of authenticity or some sort of

certificate to indicate that the product was not adulterated or

misbranded. You rely on that information, you don't do your

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own testing of the products, right?

A Yes, but we only work with reputable companies.

Q Okay. So are you -- where do you fit in the chain of

distribution? I heard you describe the distribution as being

several different distributors, a master distributor, and then

distributors below the master distributor, where does your

company fall?

A It depends on the brand.

Q Let's talk about ELFBAR, where does it fall?

A Master distributor.

Q Okay. So how many master distributors are there of ELFBAR?

A Master distributors of ELFBAR?

Q Right.

A Same as in the lawsuit, six plus one.

Q Okay, so seven in the United States?

A Yes.

Q Okay. And then as a master distributor, you are receiving

the importation from Shenzhen Weiboli and your other six -- the

other six master distributors the same, coming directly from

the manufacturer, right?

A Yes.

Q Okay. So you are relying upon Shenzhen Weiboli to provide

you with product that is authentic, not adulterated and not

misbranded, correct?

A Yes.

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Q You know who you are buying from, you are buying from

Shenzhen Weiboli, correct?

A Yes.

Q Okay. So you wouldn't purchase ELFBAR product that was

counterfeit from Shenzhen Weiboli, right?

A I don't understand your question.

Q Okay. I'm just trying to understand your concern about

counterfeit products coming into the market. You are saying

that it's not you who is going to experience having counterfeit

products being sold to you because you know who you are buying

them from, right?

A Yes.

Q Okay. You are saying that others -- there may be other

distributors out there who are not master distributors, who

have no relationship with Shenzhen Weiboli, they may be fooled

somehow.

A Yes.

Q Okay. I just wanted to make sure of that.

THE COURT: I also had a question.

You mentioned earlier that you only work with

reputable companies, can you explain to me how you go about

determining who is reputable?

THE WITNESS: Basically, we look into the size of the

company, the brands they sell. We are a newer distribution

into the market, so there are brands that existed before us

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that have a good streamline of products and good customer

service to their end users, and that's what we go with, ma'am.

THE COURT: All right. Thank you.

MR. ROTHMAN: Okay.

BY MR. ROTHMAN: 

Q Is another way you determine the nature of the supplier to

make sure they are reputable by, for example, researching them

in trade publications?

A No.

Q No, okay. What about going to trade shows?

A We do.

MR. ROTHMAN: If I can have the witness look at

Plaintiff's Exhibits 23, 24, and 25 for identification.

Thank you very much.

BY MR. HEYER: 

Q Mr. Shriteh, before the hearing today, I handed exhibits

23, 24, and 25 to Counsel, and he handed them back and I saw

you reviewing them, do you recognize what these exhibits are?

A They appear to be basically magazines to advertise smoke

shop and vape shop products.

(Evidence identified as Plaintiff's Exhibits 23, 24 and

25.)

BY MR. ROTHMAN: 

Q Okay. They are trade magazines, you have seen magazines

like these before, right?

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A Yes.

Q And --

A Sorry. They are mailed to us, but that does not mean I go

through them.

Q No, I understand that, but you have seen these sorts of

periodicals in your experience in the past.

A Yes.

MR. ROTHMAN: Your Honor, we move these three

exhibits into evidence. Pursuant to Rule 902.6, they are

periodicals and self-authenticating.

THE COURT: All right. And the numbers are?

MR. ROTHMAN: 23, 24, and 25.

THE COURT: Any objection?

MR. HEYER: I think lack of foundation and relevance,

Your Honor. I mean, the witness just said -- I think he has

testified he doesn't typically review these sorts of things,

there has been no relevancy grounds laid, so I'm not --

THE COURT: All right. I'll overrule the objection.

The exhibits are admitted, Plaintiff's 23, 24 and 25.

(Evidence admitted as Plaintiff's Exhibits 23, 24 and

25.)

MR. ROTHMAN: Thank you very much.

I apologize, I should have asked you not to step down

again. Now I have to ask your clerk to get up, because I'll

show him a few things on the Elmo.

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Thank you.

BY MR. ROTHMAN: 

Q So you understand -- you are familiar with trademarks,

right? You know what a trademark is, correct?

A I believe so.

Q Okay. And you understand that trademarks are used to

identify goods and help the consumer identify the source of

those goods, right?

A Uh-huh.

Q Yes?

A Yes.

Q Great. In fact, your company has applied for a number of

trademarks, right?

A Yes.

Q Including trademarks for exactly the same type of

e-cigarette and similar e-cigarette devices like both my client

and ELFBAR makes and sells, right?

MR. HEYER: Objection, compound.

THE COURT: One moment.

MR. ROTHMAN: Sure.

THE COURT: I'll sustain the objection.

BY MR. ROTHMAN: 

Q Your company has applied for trademarks for e-cigarette

products, not unlike ELFBAR, correct?

A My company applied for a trademark for multiple names, yes.

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Q Okay. And you indicated earlier that if the ELFBAR were to

be removed from the market, that you would be forced to layoff

a large number of employees because one of the reasons was you

would have no more ELFBARs to sell, did I understand that

correctly?

A It would affect my revenue heavily, so I would have to

layoff a lot of employees, yes.

Q Okay. Well, isn't the market that we are talking about for

vaping devices, isn't it a market that has many alternative

products that are not called ELF?

A There are many products in the market, yes.

Q Okay. And among those many products are products that have

names that don't include the name ELF in them, right?

A Yes.

MR. ROTHMAN: Can I have the Elmo, please?

It's on, great.

THE COURT: One moment, I need to be able to activate

the Court's screen. Warren, can you help me with that.

Do we still need the Zoom link to be up and

activated? I don't think so, correct?

MS. SHUFFLEBARGER: No.

MR. ROTHMAN: I don't think so.

THE COURT: Okay. All right, let's continue.

MR. ROTHMAN: Okay.

THE COURT: I will look from here.

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MR. ROTHMAN: Oh, look, it is up there, I didn't see

it.

BY MR. ROTHMAN: 

Q We are looking at a page for a company, it says on the

upper left-hand side, called AK Wholesale, do you see that?

A Yes.

Q Are they a distributor?

A Yes.

Q Okay. And the page shows the ELFBAR right in the center,

right?

A Yes.

Q But it also shows a variety of other disposable electronic

nicotine delivery system products, like ELFBAR, being sold

under different names, right?

A Yes.

Q So if ELFBAR were taken off the market, you could sell some

of these products, right?

A Not because you go make a new brand tomorrow, it's going to

sell.

Q Okay. But if consumers don't have access to the ELFBAR,

are you saying that they are going to completely give up

purchasing disposable nicotine delivery system products like

the ELFBAR, or won't they just change to another brand?

A They will be confused with the counterfeits for as long as

possible until something comes along.

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Q My understanding is that ELFBAR, the company Shenzhen

Weiboli has been doing a lot of work to get rid of the

counterfeits, isn't that your understanding, too?

A Could you repeat the question?

Q Haven't they been trying to get rid of counterfeits?

MR. HEYER: Objection, lack of foundation.

BY MR. ROTHMAN: 

Q Do you know?

THE COURT: Well, hold on, let me rule.

I'll sustain the objection, rephrase the question

given the objection.

BY MR. ROTHMAN: 

Q Do you know if the manufacturer who you import from has

been taking action to stop the counterfeiting problem?

A Yes.

Q Okay. Has that had some effect?

A Yes.

Q Have they indicated to you that they are going to stop

doing that?

A Who are they?

Q Shenzhen Weiboli.

A To stop advertising the counter --

Q No. Have they indicated to you that they are just going to

stop and let the counterfeits flood the market?

A No.

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Q Let me show you another page, this is from Exhibit 25. Are

you familiar with the Puff brand?

THE COURT: What page of Defense -- I'm sorry,

Plaintiff's 25?

MR. ROTHMAN: Unfortunately, they are not numbered.

THE COURT: All right, then just use some kind of

descriptor.

MR. ROTHMAN: Sure. 

BY MR. ROTHMAN: 

Q They are for a company called omnidistro.com, do you see

that?

A I see the page.

Q Okay. You are familiar with the Puff brand, right?

A Yes.

Q The Puff product has two variants and one of them is called

bar, right, we can see it right here?

A I see Puff Bar on there, yes.

Q You have seen other disposable vape products that use the

word bar in their name, like ELFBAR, correct?

A Yes.

Q Okay. So Puff Bar -- isn't Puff Bar a potential substitute

for a consumer looking for an ELFBAR, but they can't find one,

isn't it possible -- isn't it realistic to expect that they

would buy a Puff Bar?

A I don't understand the question.

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Q Isn't it realistic to expect that a consumer who purchases

a product that you have distributed, who normally buys ELFBAR,

would instead purchase a substitute like Puff Bar?

A I don't know.

Q You don't know, okay. Thank you.

MR. ROTHMAN: Thank you, Your Honor, no further

questions.

THE COURT: All right. Any redirect?

MR. HEYER: May I have one moment, Your Honor.

No redirect, thank you, Your Honor.

THE COURT: Thank you very much, Mr. Shriteh. You

may return.

(Witness excused)

THE COURT: All right. I just want to get a sense of

where we are and what is left to do today. I see Jon Glauser

would be your final witness, sir.

MR. HEYER: Yes, that's correct.

THE COURT: That's estimated as maybe a total of an

hour-and-a-half or so.

MR. HEYER: And I think it will probably end up being

far shorter than that, if Mr. Shriteh's testimony is any

indication.

THE COURT: All right. We are going to then just do

the lunch break now. Do the parties prefer an hour and 15

minutes or an hour? I just don't know if you have travel plans

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returning home or whatever else you have going on.

MR. HEYER: An hour and 15 would be fine, given our

travel plans.

MR. ROTHMAN: That's fine, Your Honor.

THE COURT: We will be in recess until ten til 2:00,

so 1:50 -- no? All right, I'm not good at math.

 Okay, there we go, see you all after lunch.

Anything further before we break?

MR. ROTHMAN: Just if we can get access to the

attorneys's conference rooms, please.

THE COURT: Certainly, we will make that available to

you.

MR. ROTHMAN: Thank you.

(A lunch recess was had at 11:39 a.m.; proceedings

resumed at 12:55 p.m.)

THE COURT: Nice to see you again, you may be seated.

I hope you had a nice lunch. Let's resume,

Mr. Heyer, please call your next witness.

MR. HEYER: The Defense calls Jon Glauser, Your

Honor.

THE COURT: Please remain standing to be sworn, sir.

JON GLAUSER, DEFENSE WITNESS, SWORN 

THE COURTROOM DEPUTY: Please have a seat and then

state and spell your first and last name for the record.

THE WITNESS: My name is Matthew Jonathan Glauser,

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G-L-A-U-S-E-R.

MR. HEYER: May I proceed, Your Honor?

THE COURT: Yes, please.

MR. HEYER: Thank you.

DIRECT EXAMINATION

BY MR. HEYER: 

Q Mr. Glauser, where do you work?

A I work at Ecto World, LLC, also known as Demand Vape.

Q And what is your title with -- I'll refer to it as Demand

Vape, what is your title with Demand Vape?

A I am the chief strategy officer and cofounder.

Q And are you one of the owners of Demand Vape?

A I am.

Q Okay. Where is Demand Vape located?

A In Buffalo, New York.

Q What is the nature of Demand Vape's business?

A We distribute vape products throughout the entire country

and some internationally.

Q And when you say vape products, do you mean electronic

cigarettes?

A I do.

Q Approximately how many employees does Demand Vape have?

A We have approximately 283, I believe, total.

Q Can you explain the history a little bit of when and how

Demand Vape was founded.

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A Yes. Back in 2009, I quit smoking using a vaporizer, so I

took a trip to China one way, I stayed there for about six

months, met all of the manufactures, did some marketing

research, came back and started the business with my two

partners and got into distribution of open systems and some

single lights that were around back then and went from there,

and officially opened in 2011.

Q So is it fair to say at this point that you have

approximately 13 years of experience with the electronic

cigarette industry?

A Professional experience, yes; personal, even longer.

Q Okay. Based on your knowledge and experience, how old is

the electronic cigarette industry, at least in the United

States?

A It started in approximately 2007 in China, and it came to

the United States shortly thereafter, so almost 15 years old.

Q Okay. Would it be fair to say you got in almost on the

ground floor of the industry in the United States?

A In the United States, absolutely, yes.

Q If you have an idea, how many different electronic

cigarette products does Demand Vape sell?

A We sell about 30,000 skews.

Q Can you explain what a skew is, just for the record?

A A skew is -- it could be it's an individual product, but

there could be a product category and each product under that

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category is an individual skew.

Q Okay. And in how many states does Demand Vape sell its

products?

A Forty-nine states.

Q Do you have an estimation as to how many retailers or

retail customers nationwide Demand Vape sells to?

A On average, about 5,000.

Q Okay. Would it be fair to say Demand Vape is one the

largest distributers of electronic cigarettes in the United

States?

A To my knowledge, yes. There is no concrete metric to say

that, but to my knowledge, yes.

Q And based on your experience in the industry, could you

explain how the channels of distribution for electronic

cigarettes work.

A Yeah, I'm just going to mirror what the prior witness said,

you know. There's suppliers in Shenzhen, China, that's where

99 percent of e-cigarettes are made. We form a relationship

with them, buy it from them either as a master distributor or

distributor. 

In my case, we primely sell directly to the vape

shops, smoke shops and convenience stores, but we do master

distribute a lot of products as well.

Q Did there come a time over this last summer where you

became aware of a cease and desist letter that was sent by

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VPR's counsel relating to ELFBAR products?

A Yes.

Q Prior to that time, had you ever heard of any electronic

cigarettes branded as ELF?

A I have not, no.

Q Before this lawsuit was filed, had you ever heard of the

Plaintiff, VPR Brands?

A I have, only to the extent that they have been involved in

a lot of litigation regarding patent issues.

Q Did there come a time when Demand Vape started distributing

ELFBAR brand electronic cigarettes?

A Yes, that time would be about October 2021.

Q Okay. And did there come a time when, in your observation,

the ELFBAR electronic cigarettes became more popular?

A Yes. So I would say the spring of 2022 is when they really

peaked in their popularity, and it has only been growing ever

since.

Q How would you rank the popularity of the ELFBAR brand of

electronic cigarettes nationwide in the United States today?

A I would unequivocally say across all categories, end

products, they are number one in the United States.

Q Do you believe more of those are sold even than RJ

Reynolds' Vuse products found in many convenience stores?

A Yes, I do believe that, in fact, to be the case.

Q And do you believe that they are -- more of them are likely

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sold than Juul electronic cigarettes that are sold in

convenience stores?

A I could definitively tell you that they are, yes.

Q How much, maybe on a percentage basis, of Demand Vape's

overall revenues do the ELFBAR electronic cigarettes represent?

A Because we have such a vast business, it's like it changes

from time to time. So it could be anywhere from about

25 percent to 35 percent of our overall revenue.

Q Just go slowly, Mr. Glauser, for the court reporter.

A I apologize. 

I'm sorry, Your Honor.

BY MR. HEYER: 

Q As a result of this lawsuit, are you familiar with VPR

Brands' auto concealer ELF electronic cigarette?

A I am.

Q Okay. Now, there has been -- you were present for the

testimony on the previous day of the hearing via Zoom, were you

not?

A That is correct.

Q Okay. And do you recall that there was a point made by VPR

about the size and the shape of the ELFBAR electronic

cigarettes being similar to those of their auto concealer

product, do you recall that?

A I do you recall that, yes.

Q In your experience, are there any other electronic

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cigarettes available in the marketplace that are also of a

similar size and shape?

A Due to the nature of how this industry has evolved over the

years, I would say that is probably the most common size and

shape that's available and the most popular size and shape

available in the industry today.

Q Have you ever heard, in your experience, the ELFBAR brand

electronic cigarettes ever referred to by anyone in the

industry as ELF?

A I have not, no.

Q Okay. And in your position over the years, do you

frequently attend trade shows for the electronic cigarette

industry?

A Yes. I -- probably on average, over the last six to seven

years, about 50 trade shows a year, I would say.

Q Okay. Do you regularly visit vape shops?

A Yes, very regularly.

Q Okay. How about convenience stores that handle or that

sell electron cigarette products?

A Yes, I also visit convenience stores.

Q Do you have an estimate as to how many brick and mortar

retail outlets you would visit that sell electronic cigarette

products in a given year?

A This is an estimate, it being -- maybe approaching a

thousand.

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Q Okay. And have you ever seen, in your experience, any of

VPR's ELF branded products advertised or offered for sell in

any of these outlets?

A I have not, no.

Q Do you visit the websites of other distributors in your

position?

A From time to time, yes.

Q Okay. Have you ever seen any of VPR's ELF branded

electronic cigarettes advertised or offered for sale on any

other distributors' websites?

A I have not, no.

Q To your knowledge, have any of your customers ever inquired

about selling VPR's ELF branded electronic cigarettes?

A They have not, and in my position, I have 32 sales people

who are constantly requesting products based on demand, and not

a single one of them has ever requested that product.

Q Okay. Have you ever seen VPR's ELF branded products

advertised online?

A I have not, no.

Q Has anyone, in your experience in the industry, whether

they are your customer or your sales rep or anyone else, ever

indicated any confusion between VPR's ELF branded electronic

cigarettes and ELFBAR products?

A No, I have not.

Q Are you aware of any confusion among consumers between

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ELFBAR and VPR's ELF branded electronic cigarettes?

A I'm not aware. We routinely do surveys with consumers to

get their perception, and it has never come up.

Q Okay. Do you think it is likely that such confusion would

exist amongst consumers based on your experience?

A In my experience, I would say it is highly unlikely there

is any confusion between the two.

Q Why not?

A Because the VPR branded ELF is just not known about in any

big enough fashion to cause any confusion, where ELFBAR is by

far the number one selling one in the country.

Q How would you describe the target consumer for electronic

cigarettes?

A So the target consumer for electronic cigarettes are

generally nicotine addicted adults who want to transition to a

safer alternative to traditional combustible cigarettes.

Q Okay. And for vaporizers that use substances other than

nicotine, who would you describe as the target consumers for

those?

A I would describe those people mainly recreational,

non-addicted users of alternative products, such as THC, Delta

8, CBD and the like.

Q Can you explain what THC, Delta 8 and CBD are.

A Yeah. So all of those substances are derived from the

cannabis plant, different variants that are chemically derived,

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and they perform different functions for different people

depending on how they are consumed.

Q Okay. Can you speak to the general popularity of

disposable electronic cigarettes, not necessarily ELFBAR

specifically, but just sort of that subclass?

A Yes. So over the years, the disposable category has very

much become like the mainstream staple category of this entire

industry.

Q Was that always the case historically?

A Absolutely not, no.

Q Okay. Can you explain a little bit about the evolution of

what was popular and less popular.

A Yeah. So I have the benefit of getting in kind of very

earlier in this industry, and it was actually a very

interesting evolution. It started off with devices that looked

just like a cigarette, held like a cigarette, weighed like a

cigarette. 

As things progressed, it went to your open type

system, where you refill your own liquids, e-liquids that would

come on to the market and they were very primitive. And as

more time went on, those types of systems, they became, you

know, better electronics, wider range of power, bigger tanks,

and then we kind of transitioned to like the smaller more

streamlined style, but with a more technologically efficient

way of using them, and that brings us back to the disposable

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type e-cigarette.

Q Could you explain, from an ease of use perspective, how

disposables compare to open system products for your typical

consumer of electronic cigarettes.

A So in my opinion, I think it's night and day. When you

have an adult cigarette smoker, it is very easy to smoke a

cigarette. You pull a cigarette out of a pack, you put it in

your mouth, light it, you smoke it until it is finished, and

disposables offer that same kind of convenience for those adult

smokers who want to transition, but in a much safer, proven

way, and I think that's why they have gravitated back towards

that type of e-cigarette type device.

Q And you're referring to these products as safer. Can you

explain, is there any testing that your company does on the

products that you import and sell from a safety perspective?

A Absolutely. So we take safety very seriously, we do

in-house testing through a third party lab on, you know,

specific products, we do random products all the time. We

actually do testing on counterfeits as well. 

I filed two premarket tobacco applications and -- 

THE COURT REPORTER: Pre what, I'm sorry? 

THE WITNESS: Premarket tobacco applications, PMTA,

would be the abbreviation, which, you know, that took quite a

bit of time and money. It's a lot of studies to be done, it

gives you very good insight into how these products work and

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what is involved in them, the chemistry of what they do to the

human body, et cetera.

BY MR. HEYER: 

Q Thank you. And to what would you attribute the increased

popularity of disposables over time?

A I think it's honestly a matter of convenience for the

consumer because the easier you make something, especially when

you are transitioning from something that someone is addicted

to, the more likely they are to be able to make that

transition, so I think disposables really help bridge that gap

for your everyday smoker in the convenience factor and it's

much more accessible to the masses.

MR. HEYER: Court's indulgence, may I approach to

show the witness Exhibit 22?

THE COURT: You may.

MR. ROTHMAN: This is 22?

MR. HEYER: Yeah.

THE COURT: I just have a quick question, before we

get to the financials, on the disposable issue.

The actual boxes that we had, I think Defense 19

perhaps, and maybe Plaintiff's -- I can't recall the number for

the Plaintiff's exhibit, but I would like the witness to answer

whether those are disposable.

THE WITNESS: Of course, Your Honor.

Yes, these are both disposable type e-cigarettes.

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THE COURT: Okay. You can keep them.

THE WITNESS: Thank you.

BY MR. HEYER: 

Q Mr. Glauser, if you could look at Defendants' Exhibit 22,

can you explain to the Court what this is.

A This is -- I had my employee pull a report to show our

gross profit and margin on the sales from October '21 to

October '22 on ELFBAR products.

(Evidence identified as Defense Exhibit No. 22.)

BY MR. HEYER: 

Q October 2021 until October 2022, is that correct?

A That is correct.

Q And I see that -- it looks like one of the grand totals did

not show up. Is that the grand total revenue from sales of

ELFBAR products that has the pound signs there?

A Yes, that's correct.

Q And that number could be derived by adding up all of the

numbers?

A Yes.

Q And is Exhibit D22 basically a compilation of data prepared

from the company's financial records that are created and

maintained in the normal course of Demand Vape's business?

A They are, yes.

MR. HEYER: Your Honor, I move the admission of

Defendants' Exhibit 22.

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THE COURT: Any objection from Plaintiff to

Defendants' 22?

MR. ROTHMAN: No, Your Honor.

THE COURT: All right. Defendants' 22 will be

admitted without objection.

(Evidence admitted as Defense Exhibit No. 22.)

BY MR. HEYER: 

Q In the lower table, as it were, in Defendants' Exhibit 22,

Mr. Glauser, can you explain what that represents there?

A So that is our gross profit margin. That does not include

any overhead or any other expenses, that's just the gross

profit after the sales of the product before any other expenses

are involved.

Q Okay. And is that calculated into your company's ERP

system?

A Yes, that is correct.

Q All right. And the numbers over to the right, those are

monthly totals of gross profit for each of the months from

October 2021 to October 2022, is that correct?

A Correct.

Q How would you characterize if there has been a trajectory

in the sales of ELFBAR products that Demand Vape has sold over

time?

A Sure. So it has steadily been going up. The demand is

actually been so high that if you look at this chart, it is a

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little bit misleading because the numbers reflect the sales,

but if we would have had enough product, those numbers would

actually be much higher, so we were selling it faster than we

could get it in.

Q What time period specifically did you have issues with

getting sufficient supply to meet sufficient demand for the

ELFBAR products?

A So I would say right after June is when it really became

problematic to get the supply to meet the demand.

Q Okay. June of this year?

A Of 2022.

Q Okay. Have you -- let me ask you this: Do you know

whether ELFBAR has filed any PMTAs for any of its products?

A Yes, they have. I always do my due diligence with our

suppliers, not only in the testing of the products

independently, but also in terms of what they have done in

terms of regulatory stuff and they have done a PMTA.

Q During the last year or so, have you noticed any other

products enter the marketplace that have ELF as part of their

name, besides ELFBAR?

A I have, and most of those -- actually all of those products

come from very unreputable Chinese manufacturers. I would call

them counterfeit products, and they are made at a very low

quality.

Q Okay. And when you say that they are counterfeit or low

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quality, could you explain how you determine that or why you

classify it that way.

A Yes, absolutely. I have spent quite a bit of time in

Shenzhen, China over the years. I basically know and have a

good relationship with every manufacturer over there, I mean

legitimate manufacturer. I have been to all of their

facilities, I see how they manufacture everything, and the

people that are sending the counterfeits are your fly-by-night

pop-ups. Places open, start manufacturing, and then move to

another location to evade the Government. 

I have actually even done testing on some of these

products and the toxic level of metals, for example, would be

off the charts. The harmful -- potentially harmful

constituents of the e-liquid are much, much higher than the

ELFBAR products that are on the market. 

Q The legitimate ELFBAR products?

A Yes, the legitimate ELFBAR products.

Q All right. Did you notice whether more of those

counterfeit-type products were being imported into the U.S. and

offered for sale when the supply to be able to supply the

ELFBAR products was not sufficient to meet demand in the summer

of this year?

A Yes, absolutely, that is the case. Anytime a demand is not

met, someone fills that demand and the Chinese business model,

the way it is run, is very good at adapting to fill that

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demand, so it is almost immediate that you see that happen.

Q Have you seen that in your experience with other brands,

other than ELFBAR, where there were similar issues of knockoffs

or counterfeits coming out?

A Yes, over the years, many, many times. It happened with

Juul, it happened with Hyde, it has happened with almost every

mainstream product that has, you know, gained a big market

share of this industry.

Q Are you -- since this litigation has been filed, have you

become familiar with VPR's auto concealer ELF branded product?

A Yes.

Q Okay. Do you have any firsthand experience in interacting

with FDA with respect to similar products, and what I mean by

similar products are open system vaporizers that are not

explicitly marketed for use with nicotine, in your experience?

A I do, yes.

Q Could you explain what that experience has been.

A So since we import so many products and we distribute so

many products, I deal with FDA on a fairly regular basis. Just

a couple weeks ago, they came and did an inspection on what I

would classify as an almost identical product type in function

and form. They classified it as a tobacco product and I'm

still waiting the determination of the release of that product

from customs.

Q So FDA has not released that particular product from

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customs, is that right?

A That is correct, and that means they have regulatory

authority over that product.

Q Okay. If the Court were to preliminarily enjoin Demand

Vape from further sales of ELFBAR products, what, if any, would

be the impact on your business?

A I would classify it as detrimental given we have so many

employees, and if it makes up, at times, about a third of our

overall profit, you know, that's -- you are approaching 100

employees that I would have to potentially layoff, and a lot of

our employees are actually refugees that are here legally from

Burma.

Q In terms of your relationship with customers that buy

ELFBAR products, what would you anticipate would happen if

Demand Vape is enjoined from continuing to sell ELFBAR

products?

A It would put a huge strain on some of those customer

relationships that we put a lot of time and energy into over

the years to maintain. One of the best assets of our company

are those customer relationships, it is really what we depend

on to keep our market share.

Q Okay. I think there was perhaps a suggestion by VPR's

Counsel that couldn't a distributor like Demand Vape use other

branded products to fill the void if ELFBAR products are not

able to be sold due to an injunction, what would you say to

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that?

A I would say that I can definitively, without a doubt, based

on history and my own experience, say that's equivocally

untrue. 

When there is a demand for a product and the consumer

is very familiar with that product, they are going to continue

to want to get that product, in some cases even knowing they

are counterfeit products. It is like anything else, they get

tied to the brand, so you can't just switch one product for

another and push a product. There is a supply and demand issue

there that we have no control over.

Q Do you remember him showing Mr. Shriteh, I think it was

Plaintiff's Exhibit 25 that had the Puff Bar products --

A Yes.

Q -- just a little while ago? 

What can you say with respect to Puff Bar products

and counterfeits, if anything?

A So Puff Bar was actually pulled from the market because of

FDA action. They were -- I would classify them as, you know,

in the same category of ELFBAR at one point. About a year and

a half ago in terms of potential sales, they were definitely

number one in the marketplace and they also had a huge

counterfeit problem and no one was able to stop it and the

demand was still there.

Q If, in fact, other products from less reputable

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manufacturers did sort of fill the void, as you have explained

it, would you have any concerns from a public health or safety

point of view related to that?

A Absolutely. Just based on my own in-house testing of some

of these products, it would be detrimental to public health,

especially at the numbers we are talking about here entering

the marketplace.

Q Okay.

A You are talking about a situation where people don't know

what they are getting and what they are inhaling into their

lungs.

Q I know you mentioned like heavy metals potentially being

something that would be inhaled, is that right?

A That's correct.

Q What else have you found from testing some of these

counterfeit products?

A So in the statutory requirements of a premarket tobacco

application, you test for harmful and potentially harmful

constituents, which there is an exhaustive list of constituents

that you may find in e-liquid that would qualify as potentially

harmful. We've found levels of nitrosamines, all kinds of

stuff to be quite honest, all across-the-board. Almost

everything that I have seen, FDA doesn't want to see in that

product.

Q You found these things in counterfeit products?

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A Yes, absolutely.

MR. HEYER: I move Defendants' Exhibit 22 into

evidence, and I think I'm done.

THE COURT: Defense 22 is in evidence.

MR. HEYER: Thank you.

THE COURT: All right. Any cross?

MR. ROTHMAN: Yes, Your Honor.

CROSS-EXAMINATION

BY MR. ROTHMAN: 

Q Good afternoon, Mr. Glauser.

A Good afternoon.

Q You're obviously very passionate about some of these topics

that we have been talking about today.

A Yes, I agree with that.

Q You are a member of the board of the Vape Technology

Association.

A That's accurate, yes.

Q And what is the mission of the Vape Technology Association?

A The VTA or the Vape Technology Association is a

not-for-profit organization that advocates for what I would

call a safer alternative to products for adults to consume

nicotine in a safer way.

Q And when you say products for adults to consume nicotine in

a safer way, we are talking about products like ELFBAR.

A Yeah, I would classify ELFBAR as one of those products.

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Q Your company, Demand Vape, what were the total -- what was

the total revenue earned by Demand Vape in the last year that

you have a full year of revenue for?

A Are you asking for a specific product or across-the-board?

Q No, I'm asking for overall revenue in dollars and not

profit, total revenue.

MR. HEYER: Objection, relevance.

THE COURT: Why do you consider that question to be

irrelevant, if you are trying to persuade the fact finder that

a potential injunction would cause irreparable harm?

MR. HEYER: The extent of it is getting beyond the

products at issue in this case and given sort of the sensitive

nature of the data, I feel like it is irrelevant, Your Honor,

to ask such a specific question in such a broad manner.

THE COURT: I'll overrule the objection. You may

proceed.

THE WITNESS: I don't have the numbers in front of

me, I can give you an estimate probably; about five to

600 million.

BY MR. ROTHMAN: 

Q Five to 600 million?

A Yes.

Q Do you recall testifying on direct that the ELFBAR product

was between 25 to 35 percent of your company's overall revenue?

A I do.

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Q Twenty-five to 35 percent of the overall revenue based on

an estimate of between 500 and 600 million would be in the

nature of several hundred million dollars, right?

A I may have misunderstood the question. 

So I took the gross profit and given we sell a wide

variety of categories, such as hardware open system, where we

make a much lower profit on, the revenue wouldn't reflect

evenly across-the-board. Well, the revenue would, but the

gross profit would not, if that makes sense.

Q It doesn't. I'm looking at Exhibit 22 and according to my

math -- I can't tell because the grand total is blocked out

here, but according to my math, the total sum of the revenue

for the ELFBAR product from October '21 to October '22 is on

the order of 128 million or so.

A That is correct.

Q Okay. So that -- that seems like a smaller percentage of

overall revenue than 25 to 35 percent.

A Well, 150 million times four would be 600, so what is that,

600 million.

Q Okay. It sounds like, though, we are talking about more in

the nature of maybe 15 to 20 percent of the total revenue today

based on your sales for 2022, right?

A As I stated, I don't have an exact number for you, so I'm

estimating.

Q And according to Exhibit 22, the sales only began to exceed

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the ten million dollar a month amount beginning in April of

this year, right?

A Yes, that is correct, as per the chart.

Q Okay. What was your biggest seller a year ago?

A The Hyde brand of products.

Q What is the Hyde brand of products, is that a disposable

vape like the ELFBAR?

A It is very similar, yes.

Q And was it the biggest seller two years ago?

A I don't know the exact timeframe, but yes, there was a

point in time where it was the biggest seller.

Q Did it hold on to that top spot for more than a couple

years?

A No.

Q No? I mean, I have been to your website. 

MR. ROTHMAN: If I can use the video connection, the

HDMI connection. And we will produce a PDF version of this,

Your Honor, to the extent that it would be hard to capture all

of the motion in a PDF, but we will do our best and mark it as

the next exhibit number.

BY MR. ROTHMAN: 

Q Looking at the screen, this is Demand Vape's website, your

company's website, right?

A That is correct.

Q And we see right front and center there is the ELFBAR

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product, right?

A Yes.

Q Above that is the Hyde product, correct?

A Correct.

Q Okay. To the left of the ELFBAR, what is that product?

A Flum probably; yes.

Q That product looks very similar to the ELFBAR product, is

it a similar product, does it fall into the same category?

A Yes, it is a disposable device.

Q Okay. Below the Flum product, there is this product that

looks very similar to the ELFBAR, I can't tell what that is by

bar?

A I'm not sure where you are --

Q On the left-hand side of the screen, do you see the --

A Yep, Biff Bar.

Q And below the ELFBAR is the Luffbar.

A That's correct.

Q To the right of the Luffbar is the Geek Bar.

A Is that a question?

Q That's another product that's similar to the ELFBAR.

A Yes.

Q But I just want to make sure we understand each other, you

want this Court to believe that despite the fact that your

company distributes the Luffbar, the Biff Bar, the Geek Bar,

the Flum Pebble, all of which are similar to the ELFBAR, that

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enjoining the sales of the ELFBAR will lead to a vacuum where

purchasers will end up buying counterfeit ELFBARs that will

harm them, that's your testimony?

A That is correct, and I think that testimony is backed by

history and a long pedigree in this industry.

Q And I understand you do have a long pedigree in this

industry and I'm not challenging that, but you talked about

surveys that you have done on e-cigarettes. Have those surveys

been produced to us in this case?

MR. HEYER: Objection, Your Honor, discovery hasn't

started.

THE COURT: All right, sustained.

MR. ROTHMAN: Okay.

BY MR. ROTHMAN: 

Q I'm not aware of receiving any surveys that the Defendants

are relying upon, okay. So are there any surveys that you

intend to rely upon that I'm not aware of because you indicated

that that was something that you were basing your testimony on?

MR. HEYER: Objection, Your Honor. We haven't even

filed our answers to the complaint yet, this is an expedited

preliminary injunction.

THE COURT: All right. Why don't -- I'll sustain the

objection based on the way the question was presented.

But Mr. Rothman, if you want to ask the witness about

surveys, you may do so. He did mention in his direct that his

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company conducts surveys in a general sense, so you can probe

that line of inquiry if you wish.

MR. ROTHMAN: Okay.

BY MR. ROTHMAN: 

Q Is there a specific survey done by a specific survey

company on a particular date concerning a particular product

that you're relying upon here today?

A No.

Q You also referred to testing. Is there specific testing

done on a specific product that you are relying on here today?

A Can you rephrase the question, because I'm not sure what

you mean by relying on.

Q Well, I want to understand the basis for the position you

are taking that removing ELFBAR is going to harm people, right,

and you said you've done surveys, you have done testing, and

you also referred to situations where there was an FDA hold

placed on a product, it sounded like it was in customs, on an

almost identical product type, and I want to understand what

those specifics are if you are, in fact, asking the Court to

rely upon them.

I'm not questioning your experience, I just want to

know, sitting here today, is there something specific that you

want the Court to refer to or is this just -- this is just your

general experience?

A I appreciate you clarifying and let me clarify. I wasn't

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relying on those things in a specific sense to prove that

ELFBAR would be over -- would not get overtaken by something

else.

I was relying on those things in a general sense, but

my bigger reliance was on the historical data in sales I have

on other products that were in a similar situation that is

demonstratively proveable.

Q The historical data that you have indicates, and I'm

quoting from your testimony on direct, that, quote, "Any time a

demand is not met, someone fills that demand."

A That's correct.

Q Okay. So isn't it the case and perhaps just as likely that

if the ELFBAR product is not available for purchase, that the

demand for the product will be filled by another product like

one of these other bar products we see on your website?

A No, I cannot agree with that statement at all. I don't

think it's just as likely. I think it's much more likely that

it will be filled by counterfeits.

Q Okay. And your basis for concluding that is what, other

than this experience that you have told us about, what else?

A I gave specific examples such as Juul, Hyde, there are a

couple other products in the past as well that faced similar

situations and in every single one of those situations in the

immediate aftermath -- yes, in time, they were replaced by

other types of products, just as ELF did in this situation.

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But for -- you know, I don't know the exact time period, but

it's not a negligible time period, it was fulfilled by

counterfeits every single time, that's what I'm relying on.

Q How much time are we talking about, because we are looking

at the sales here in Exhibit 22, and I want to understand so

that the Court can make a determination, how much time is it

going to take for the demand for ELFBAR to be filled by other

products and during that time, you say, will be diverted to

counterfeit products; a month, two months, three months, how

much time?

A Well, this is speculation on my part, but base based off

history and the other products, anywhere from 40 days to 90

days.

Q Okay. So somewhere between 40 to 90 days is when the

absence of the ELFBAR product on the market could potentially

lead people to be purchasing counterfeit product until it is

filled by some other legitimate product seller, for lack of a

better term than legitimate.

A That is one possible outcome, yes.

THE COURT: So when you refer to this prospect of

purchasing counterfeit, what exactly are you referring to? So

a counterfeit of the ELFBAR would be what exactly in your mind?

THE WITNESS: So Your Honor, a counterfeit, how I

define it is something that looks exactly like Exhibit D19

here, that has the same packaging, has the same markings, it

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looks exactly like the product, but is not made by the original

manufacturer, that's what I describe as a counterfeiter, Your

Honor.

THE COURT: Then I have another question about the

surveys, you mentioned them in your direct in relation to the

potential for consumer confusion. Are you aware of any studies

conducted by your company that have actually compared the

prospect of confusion between ELFBAR and ELF products?

THE WITNESS: No, we have not done because as I

stated in my previous testimony, I was not aware of the ELF

product line until this lawsuit.

THE COURT: Understood, thank you.

BY MR. ROTHMAN: 

Q Thanks. Now, you are aware of my client's company, though,

right?

A Yes, as I previously stated, just from hearing of

litigation in the industry.

Q But you also sell his products on your website, right?

A I'm not -- not that I'm aware of, I don't do the

purchasing, so I don't know.

Q Okay. But my client has a few different -- you know my

client has a few different brands it holds trademarks for,

products under the name HoneyStick, are you familiar with that?

A No, I did not know your client held the trademark under the

trademark HoneyStick until you just told me, so --

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Q If we go and we look at your website for brands --

MR. ROTHMAN: Where did we see it? 

(Discussion off the record.)

BY MR. ROTHMAN: 

Q So if we look at Demand Vape under alternative, there's two

HoneyStick products there that my client makes.

A Is that a question?

Q Well, I'm asking, now that you see that, do you agree that

your company sells products that are made and distributed by

VPR?

A To the extent that what you are telling me is accurate,

absolutely, yes.

Q There was some testimony about the types of products that

my client sells, these kit products, the ELF products.

MR. ROTHMAN: What are we up to?

I would like to show the witness what has been marked

as Plaintiff's Exhibit 26.

Thank you, sir.

BY MR. ROTHMAN: 

Q You have seen pictures of that product before, maybe you

haven't held one previously, but the product that my client

sells that is marked Plaintiff's Exhibit 26, does that fall

into a category of products that we could find on the Demand

Vape website?

A Can you be more specific with the question, what do you

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mean by category?

Q Well, there are many different categories on the Demand

Vape website and if we go to devices, there is a device

category called kits, and if I click on kits, right, we see

devices including -- see this Uwell device that Mr. Hardy (sic)

was testifying about earlier today?

A I do.

Q Okay.

A I don't believe that's the same device though.

Q No. It looks somewhat like what we saw in Defendant's

Exhibit 16 or 17 to me, but these products we are looking at

under kits, can you describe for me what these -- perhaps how

these products are different from the ELFBAR product, what are

the attributes of these products?

A Yes. A kit is anything that when you buy it, such as what

you just handed me here --

Q Okay.

A -- across any category, it comes with everything you need

to start vaping minus potentially whatever substance you are

going to put into it.

(Evidence identified as Plaintiff's Exhibit No. 26.)

BY MR. ROTHMAN: 

Q Okay. So the product that you are holding there, my

client's ELF product that's been marked as Exhibit 26, that

product is like the products that are listed on your website

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under the devices kits subsection, correct?

A Yes, it's similar, correct.

Q Okay. And what about -- well, I'll show you what we will

mark as Plaintiff's Exhibit 27. 

MR. ROTHMAN: You don't have to get up, if you allow

me to approach the witness.

MR. HEYER: Can we see what that is?

MR. ROTHMAN: It's the pen battery, it is the

battery.

MR. HEYER: Thank you.

THE COURT: None of these exhibits yet have been

admitted, correct, Mr. Rothman?

MR. ROTHMAN: They were shown before. If necessary,

I can put them in through my client, if there is any objection.

At this point, I'm just showing them to --

THE COURT: Okay.

MR. ROTHMAN: -- the witness for identification

purposes.

THE COURT: Okay.

MR. ROTHMAN: Pictures of them have been admitted as

exhibits already, though.

THE COURT: Okay.

BY MR. ROTHMAN: 

Q What category would that exhibit fall into, that product,

the device you are holding?

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A This is a battery.

(Evidence identified as Plaintiff's Exhibit No. 27.)

BY MR. ROTHMAN: 

Q Okay. Would you attach something to the battery?

A You could, yes.

Q Okay. And would that something that you attached to the

battery be a vaporizer that you could put liquid into?

A Potentially, yes. There is a -- there is what you call a

510 connection to it, which is the industry standard. So you

can connect almost anything you wanted to this battery that has

a 510 threaded adapter on it.

Q Okay. So that 510 threaded adapter could be filled with

nicotine e-liquid, and then it would function like any of the

devices that we saw on the kits site when they were filled,

right?

A It would function in a similar manner, yes, it would become

essentially a kit. But this, in and of itself, wouldn't be

considered a kit.

Q That's just the battery part you need to attach the

reservoir for the e-liquid to what you refer to as the 510

mouthpiece, correct?

A Correct, yes.

Q Do you sell those 510 mouthpieces on Demand Vape?

A Yeah, I'm sure we do. We sell a ton of different -- you

know, across all categories.

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MR. ROTHMAN: Is there any objection to the admission

of Exhibits 26 and 27?

MR. HEYER: I mean, if there is a proffer that

otherwise the principal of VPR is going to testify, I'll accept

the proffer.

MR. ROTHMAN: All right. So we move those two into

evidence, Your Honor.

THE COURT: So 26 and 27, any objection?

MR. HEYER: No objection, Your Honor.

THE COURT: Those exhibits are admitted without

objection. 

(Evidence admitted as Plaintiff's Exhibits 26 and 27)

BY MR. ROTHMAN: 

Q You are not going to have to layoff employees if ELFBAR

comes off the market, are you?

A Can you rephrase that.

Q The prior witness testified that, you know, if ELFBAR were

removed from the market, he would have to layoff employees. 

Would Demand Vape have to layoff employees if ELFBAR

was removed from the market for a period of time?

A Potentially, yes. I mean, ELFBAR is very profitable for

us. That's different than, you know, the total amount of sales

that you do, so profit is what you make your money on, right.

Q How much more profitable is ELFBAR than other comparable

products like the ones we saw on the first page of your

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website?

A Each product varies.

Q Sure.

A Some drastically so.

Q Right. But how much more profitable is ELFBAR than, say,

Flum or Biff Bar or Luffbar or Geek Bar?

A Well, quite a bit, because not only is it in high demand,

but there is also a very good profit margin on it, probably the

highest profit margin of any of those devices.

Q In your Exhibit 22, you indicated a 29 percent profit

margin. How does that compare to the profit margin on Biff

Bar?

A I don't have the exact number, but I think our average

profit margin across our devices is around 15 percent.

Q 15 percent. So you are making double the profit on the

ELFBAR than you are on these other products?

A Yeah, according to what I just said, that would be

accurate, yes.

Q Okay. Is it really the fact that customers want the ELFBAR

that's generating the demand as a result or is it really that

the ELFBAR is so much more profitable, that you are selling

that instead of alternative products?

A No. It's the first thing you said, because we make our

products as well, and trust me, we would much rather sell those

products than anything else, but people demand ELFBAR.

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Q What is so appealing about that product?

A I wish I knew, I wish I could answer that question.

Q But you don't you know, though, because weren't you

interviewed by Reuters and asked specifically about what it is

that makes products like ELFBAR so in demand?

A Yeah, I gave them a very similar answer to what I just gave

you.

Q Well, my understanding of the answer that you gave was that

those products like ELFBAR that come in fruit and candy flavors

are attractive to children, but despite the fact they are

attractive to children, adults like them, too.

MR. HEYER: Objection, lack of foundation, hearsay.

THE COURT: All right, I'll sustain the objection.

BY MR. ROTHMAN: 

Q Well, it's actually your statements, so --

THE COURT: I'm not really sure where this whole

thing is going.

MR. ROTHMAN: I'll leave it. I'll leave it there,

Your Honor. I appreciate that, I think we have probably

covered all of the areas.

BY MR. ROTHMAN: 

Q Weiboli is a Defendant in this case, Shenzhen Weiboli, or

Weiboli Shenzhen, right?

A Correct.

Q They are not here, there is no representative of them here

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today, right?

MR. HEYER: Objection, Your Honor, Counsel is here.

MR. ROTHMAN: Well, no, I'm asking in terms of a

witness or a corporate representative. Obviously, Counsel is

here, I see you there.

THE COURT: I think we can all understand that there

is no physical human being here from --

BY MR. ROTHMAN: 

Q Do you know why Shenzhen Weiboli is not here and presenting

evidence about its losses? 

A I can't --

MR. HEYER: Objection -- I'm sorry.

THE WITNESS: I can't speak for someone else, I have

no idea why they aren't here.

BY MR. ROTHMAN: 

Q Are you aware of other products sold under other brands by

that company?

A Not to my knowledge, but in China, the business structures

are set up in such a way where there is multiple facets to it,

so I can't tell you definitively one way or another, I have no

knowledge of that.

Q So the only brand that you are aware of that Shenzhen

Weiboli sells and that you import into U.S. is the ELFBAR

brand.

A As I sit here today, to my knowledge, yes.

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Q Lost Mary is not the name of another brand that they make

that you import?

A I'm not sure that is sold to us by Weiboli, I don't know,

that's why I'm -- you know, there's different companies that we

buy different things from.

Q Okay. But I was asking specifically about Shenzhen

Weiboli, do you know if you buy the Lost Mary brand of

disposable vape product from them?

A I don't know the answer to that question.

MR. ROTHMAN: Okay, thank you.

No further questions, Your Honor.

THE COURT: All right, thank you.

Any redirect?

MR. HEYER: Very briefly, your Honor.

REDIRECT EXAMINATION

BY MR. HEYER: 

Q Mr. Glauser, were you present for Mr. Frija's testimony on

November 18th during the first day of the preliminary

injunction?

A Yes.

Q Do you recall his testimony to the effect -- I won't

attempt to repeat his exact words, but to the effect that he

attributed a decline in the ELF auto concealer sales in 2020

and 2021 to the arrival of the ELFBAR products on the U.S.

market?

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A I am, yes.

Q Okay. And is that possible based on your experience and

knowledge about your company's sales of ELFBAR products?

MR. ROTHMAN: Your Honor, objection. This goes

beyond the scope of both direct and cross.

THE COURT: Overruled.

THE WITNESS: No, I don't believe that's possible

based on my experience in the industry. I mean, there was a

full two-year period where they could have established their

product, that's more than the lifespan of most products that

become successful.

BY MR. HEYER: 

Q Was Demand Vape selling any ELFBAR products in 2020?

A No.

Q And when, looking at Exhibit 22, did Demand Vape start

selling in 2021?

A Approximately October 2021.

MR. HEYER: Thank you, Your Honor. No further

questions.

THE COURT: Thank you, Mr. Glauser.

THE WITNESS: Thank you, Your Honor.

(Witness excused)

THE COURT: All right, Mr. Heyer, do you have any

additional witnesses to present today?

MR. HEYER: We do not, Your Honor.

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THE COURT: Do you have any additional exhibits to

introduce?

MS. SHUFFLEBARGER: Your Honor, just for

clarification, we want to note that Defendant's Exhibits 1

through 7 were all admitted by a judicial notice.

THE COURT: All right. And I will say this at the

conclusion of this hearing, but within ten days of this

hearing, I would ask both sides to file on CM/ECF the admitted

exhibits with an exhibit list that indicates those numbers with

precision.

All right. Mr. Rothman, do you have any additional

testimony or exhibits to present?

MR. ROTHMAN: No, Your Honor.

THE COURT: All right.

I do have one question for Plaintiff and that

concerns a factual question. I would like a little more

information about ELF sales in -- where ELF is being sold in

the United States at this time and within the last few years.

There was some testimony today that that product is,

according to at least some witnesses, not sold in stores, so

I'm curious about that issue.

Mr. Rothman, anything to add on that point?

MR. ROTHMAN: Why don't we call Mr. Frija back to the

stand, and he can certainly answer Your Honor's questions and

any follow-up that I have.

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THE COURT: All right.

MR. FRIJA: I'm embarrassed, but can I go to the

men's room for a bit?

THE COURT: Sure. We will take a ten minute break,

then, for everybody's benefit.

(Recess was had at 1:59 p.m.; and the proceedings 

Resumed at 2:11 p.m.)

THE COURT: Thank you, you may be seated.

Mr. Rothman.

MR. ROTHMAN: Should we call --

THE COURT: Yes. Mr. Frija, please come to the

witness stand and I will have my CRD swear you in again.

THE COURTROOM DEPUTY: Please raise your right hand.

KEVIN FRIJA, PLAINTIFF WITNESS, SWORN 

THE COURTROOM DEPUTY: Please have a seat and then

state and spell your first and last name for the record.

THE WITNESS: Kevin Frija, F-R-I-J-A.

THE COURT: Mr. Rothman.

MR. ROTHMAN: Well, I want to allow Your Honor to ask

the questions. You had some specifics and I think then I can

just ask any follow-up.

THE COURT: All right.

EXAMINATION 

BY THE COURT: 

Q At this point, where do you sell your ELF products?

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A Smoke shops, vape shops, convenience stores and online

website resellers.

Q In the United States?

A In the United States and Canada.

Q And I think you may have testified that you also sell

online, is that correct?

A Very little, but we do, yes.

Q Obviously, you were here during the testimony of the two

corporate representatives of the distributors, both of whom

testified they were not aware of your product and have not seen

it sold in any physical stores, what is your reaction to that

testimony?

A Well, first of all, I believe that we were doing a great

job marketing our product, but I'm a little bit humbled and

embarrassed to see the paltry sales we have done over the

years. 

So let me just start by saying, I was shocked to see

how little we were doing in the big scheme of things, but there

are more than 10,000 vape and smoke shops in the country. I

think one of the witnesses testified he went to 25, so it's

possible that he didn't see it.

Also, there are thousands of products in the stores

and it is possible that our product is not the most popular and

is probably not displayed in a prominent space, if I could

guess.

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Also, ELFBAR seems to have about six or seven master

distributors, and even one of them may sell to ten or more

distributors, there could be hundreds of distributors in the

country, so we also have four or five master distributors that

we sell product to. We don't sell to everybody, we can't,

there are competitive reasons and politics involved. So if you

sell to one store, you can't sell to the neighbor, they get

upset. Generally, we pick our customers, just like I think

ELFBAR probably picked their distributors and they don't sell

to others. So it is very possible -- there is 100,000 plus

convenience stores in the country -- that we just got lost in

the shuffle.

THE COURT: All right, thank you. I don't have any

other particular questions. 

Mr. Rothman, you are welcome to supplement on this

topic, or otherwise we can be done, and I'll ask Mr. Heyer if

he has any limited cross on this issue.

MR. ROTHMAN: Okay. I'll just ask the witness some

questions, if we could use the -- oh, okay.

DIRECT EXAMINATION

BY MR. ROTHMAN: 

Q Do you see the exhibit what was filed as 35-10, I believe

this is going to be Plaintiff's Exhibit 10 that's already in

evidence.

A Yes, I can see it.

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Q Okay. So this exhibit is a compilation of sales by items

for a period from January of 2018 through August of 2022,

right?

A That's correct.

Q In looking at this exhibit and understanding VPR's

business, are the majority of these sales of ELF products sales

made to retail customers or to wholesale customers and

distributors?

A Distributors and wholesale customers.

Q Okay. And do you rely on the wholesale customers and those

distributors in order to further distribute and promote your

products in the marketplace?

A That is correct.

Q Would you describe the marketplace as a crowded

marketplace?

A Very crowded, yes.

Q However, among the distributors that you deal with, do they

know and recognize the trademark ELF?

A Of course they do, yes.

Q And who do they associate it with?

A With our company, VPR Brands.

Q What products do they associate it with?

A Vaporizers.

Q In particular, the two products at issue in this case?

A The concealer is more popular, but the battery has been

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making more sales lately.

Q Okay. You're familiar with the industry just like the

other witnesses who testified, right?

A Yes.

Q Okay. Are there a very small number of manufacturers or

product marketers in the industry or is it a very largely

crowded industry?

A Extremely large and extremely crowded.

Q And do you consider the company to have been successful?

A I did, yes, I have.

Q Do you attribute any of that success to your ability to

protect your trademarks?

A It is very important, sure.

Q Okay.

MR. ROTHMAN: I have no further questions.

THE COURT: All right, Mr. Heyer?

MR. HEYER: Just briefly, Your Honor. 

CROSS-EXAMINATION

BY MR. HEYER: 

Q Mr. Frija, we were looking at Plaintiff's Exhibit 10. You

haven't actually provided a month-by-month breakdown of sales

of your ELF brand products, have you?

A I don't know if it was entered into evidence, we obviously

have that, but I'm not sure.

Q Plaintiff's Exhibit 10 is cumulative for a four and a half

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year period.

A That is right.

Q Okay. Is ELF auto concealer actually still being

manufactured by the original manufacturer that you signed the

contract with in China?

A Yes, sir, it is.

Q Are you familiar with the fact that that manufacturer was

deregistered with the Chinese corporate authorities a couple of

years ago?

A I'm not familiar with that, no.

Q Okay. And how about the ELF battery, is that still being

actively manufactured?

A Yes.

MR. HEYER: Court's indulgence, one second, Your

Honor.

No further questions, Your Honor. 

Thank you, Mr. Frija.

THE WITNESS: May I step down?

THE COURT: Yes, you may, thank you.

(Witness excused)

THE COURT: All right, Mr. Rothman, I assume no

additional evidence to present.

MR. ROTHMAN: That's correct, Your Honor.

THE COURT: All right. Have both sides have checked

their notes and have admitted any exhibits they want

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introduced, I want to give you both one last opportunity for

that purpose.

Okay, all right. Well, then, let's hear argument. I

would like to stay as focused as we can on the particular

standard I'm required to apply in this posture, and of course,

the substantive law that arises under that substantial

likelihood of success analysis.

So with that, Mr. Rothman, since it is your motion,

you will go first.

MR. ROTHMAN: Thank you, Your Honor. First of all,

on behalf of my client and personally, I want to thank Your

Honor for the time today. I understand there are many other

matters on Your Honor's schedule and whenever a district court

judge allows intellectual property attorneys time to present a

case, we really appreciate it and I thank you for that.

I'm going to run generally through the factors that

Your Honor needs to consider. They are briefed already, but

you have heard testimony and received exhibits, and that's

going to provide Your Honor with some additional information to

consider. 

I'm going to get my computer and I'm also going to

suggest that -- and this was something I think Counsel for the

Defendants had also suggested -- if Your Honor wishes to

receive proposed findings of fact and conclusions of law, we

have already started on a set of those, so I want to make that

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offer again for Your Honor's consideration.

So by way of overview, what we have had, Your Honor,

is a presentation that has gone through just about all aspects

of the case that Your Honor has to consider on the motion for

preliminary injunction.

Drilling down specifically, the three factors are the

priority of the Plaintiff's mark; the Defendants' use of the

mark subsequent to Plaintiff's priority; and three are the

confusion factors and those are all broken down into

subfactors. And then following those factors, of course, we

have the issues of likelihood of success, which is subsumed

within public interest and the setting of a bond.

On the issue of priority, there is no dispute here.

What we have is we have a registered trademark for ELF for the

products that are implicated that both the Defendants use,

import, sell, distribute and that the Plaintiff does.

The registration certificate is in the record, it's

the first exhibit. It indicates that ELF is owned by VPR

Brands, registered in class 34 for electronic cigarettes,

electronic cigarette lighters, smokeless cigarette vaporizers.

First use, 11/21/17; in commerce three days later, 11/24, 2017.

It has been extant for almost five years, and there have been

no efforts to cancel it.

On its face, it is entitled to a presumption of

validity, which can be rebutted, but we have seen no testimony

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or evidence sufficient to rebut the validity of this mark,

right?

The Defendants' use and all of the examples that the

Defendants have offered are subsequent. Our client, the ELF

product, came out, was manufactured, made, distributed earlier

in time, so when it comes to the issue of who has priority to

this mark, it's quite clearly Plaintiff.

Factor two, the Defendants' use: Again, no dispute.

The Defendants have used the ELF Mark in connection with a

product called ELFBAR, we have seen many examples of similar

products to the ELFBAR called something bar, bar something,

Geek Bar, this bar, that bar. Bar describes the shape of the

product, like a candy bar, a rectangle of some thickness. It

is commonly used and the Defendants' use of that ELF Mark with

bar, the primary portion of the mark is the ELF part, not the

bar part because otherwise you would be capitalizing and

monopolizing the use of bar, and that can't be the case because

it describes a shape or feature of all of these other products.

So what we have are priority, Defendants' use, really no

dispute at this point.

The confusion factor is the third step, and the first

step of that is the strength of the mark. So the strength of a

mark is generally on a sliding scale. The top of the scale are

the completely arbitrary marks, things like Xerox, which had no

meaning whatsoever before it came out, and though many don't

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use paper anymore, I certainly understand when somebody says a

Xerox, they mean a copy.

Below that, you have marks that are fanciful, and

below that you have marks that are subject -- excuse me,

suggestive, and then below that, you get into the realm of the

barely protectable and unprotectable, descriptive and generic.

ELF falls somewhere in the fanciful to subjective

category.

THE COURT: You mean suggestive or subjective?

MR. ROTHMAN: Suggestive, not subjective. Thank you.

It's fanciful because it really has nothing

whatsoever to do with the product, it is a real word, so it

can't be completely arbitrary, but it really has nothing to do

with the product at all except to the extent that one says,

Well, an ELF, a popular movie on TV this days is ELF about

someone who is not the size of an ELF, but much bigger, ELF

connotes something small. So maybe because it has a compact

shape to it, it could be suggestive, but I think it is really

more than suggestive, I think it is more in the realm of

fanciful. In either case, this is mark that is strong because

both of those categories denote strong marks.

The similarity of the marks have already been

covered; one is ELF, one is ELFBAR. My client's registration

covers ELF in standard characters, so when you look at the

certificate, you are not looking at the registration for a

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particular stylized version like we see in the circle with ELF,

but rather the plain characters. So in one case, it is ELF; in

the other case it is ELFBAR, there is really no dispute as to

similarity.

The similarity of the goods: Well, there has been

some disagreement about that. What there hasn't been

disagreement about is that the goods all fall in basically the

same category, they are goods used to vaporize a variety of

substances, mostly nicotine containing substances, right?

Whether it's the disposable, such as the ELFBAR, or the

refillable such as my client's product, they are similar. They

are both sold in variations of the form of the product on

websites like Demand Vape's products and others, and they are

sold in the same outlets, which actually falls under the next

category, which is sales methods, but the goods are effectively

the same, the only difference being the ELFBAR product is sold

full.

Well, sold full gets thrown away versus sold empty

and can be filled and reused. There isn't a whole separate

category of shops or convenience stores or websites or

distributors for these two types of the same product. They all

fall within the same international class and within the same

sales methods, advertising, all of the other things that

indicate similarity of goods.

The magazines are, I think, very probative of that

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because it is page after page, one page it's reusable products,

the next page, it's disposable products and it goes back and

forth like that.

Sales methods: You go to a vape shop, you can buy

the ELFBAR, you can buy our client's product. We submitted

point of purchase information and exhibits as part of the proof

to Your Honor and you can see that based on the testimony of

Mr. Frija, that people go to these very same places to purchase

these very same things.

If you even search for the product, as we saw in

Exhibits 13 and 14, on websites that are devoted to the sale of

vapes, you will find ELFBAR responds to the same search that my

products respond -- my client's products respond to. The sales

methods, really, no dispute.

Advertising: The Defendants, who are all here

because they distribute products and they go to trade shows and

they get magazines, and they then resell on a wholesale basis,

or they sell directly to consumers on a retail basis and they

read the same trade publications and they go to the same trade

shows and they are all attracting the same interest that

advertising attracts. And we saw submitted on the Zoom session

that my client has found ads for ELFBAR in exactly the same

publications where we see -- where my client follows the

industry and where he testified that he previously has

advertised.

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Intent: The issue of intent here is really a

subsidiary issue because you don't need to intend to infringe a

trademark, but intent does enhance, and the case law indicates

it creates an inference that there was an intent to free ride

on the senior user, but it's just an inference. It is not

dispositive and it is not even necessary, but it is an

inference.

And where intent factors here is really only in the

USPTO office action that was issued against the Defendants

attempt to register the mark and in response to that attempt,

the -- the USPTO trademark examiner indicated that the mark was

not registerable by the Defendant because of the existence of

my client's senior registration, so that was Exhibit 3, I

believe, and what it indicates -- Exhibit 3 indicates that as

of July 19th of 2021, the Defendants knew that my client was

selling and marketing and had registered a trademark in the

U.S. for exactly the same type of products in the same class

with the same descriptions.

What happens after that? We saw in Defendants'

Exhibit 22, when we look at the sales beginning. So they get

this office action July of 2021, and August, September,

October, three months later, Demand Vape sells $86,000 worth of

ELFBAR. So if the estimate is correct that it takes about 90

days to flesh out the system and get a new vape in there to

replace ELFBAR, during which time you heard testimony there may

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be counterfeits, they certainly knew and had enough time to

pick a different name because from this exhibit, they are only

starting to market the product and ramping up sales three

months after they were told they can't name the product that,

but they move forward and they keep going and going and going.

And if we look at the sales go up, we see that it's only after

they are notified and we find out. This is a very reasonable

amount of time, by the way. We are talking about a year,

during which time my client finds out only about five or six

months into sales, of the existence of this product on the

market and now the problem that the Defendants have really

isn't any of our doing, okay. We gave them notice, the

trademark office gave them notice, but they moved forward.

So from the standpoint of intent and its relevance

here, it is that inference, that inference that they knew, knew

enough and chose to move forward.

Actual confusion: There has been --

THE COURT: Before you proceed to that, so there was,

I think, some discussion that maybe the international

registrations are relevant to intent. Can you flesh that out

in your view, why you think that is the sensible reading of

those registrations or not.

MR. ROTHMAN: Listen, it's -- I don't think that it's

a completely irrelevant point and I understand that especially

these days, business is international.

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The problem is that trademarks are still national and

companies know that because they hire lawyers like

Ms. Shufflebarger, who has handled many of the trademarks for

the Defendants in this case, and they know that they need to

address their trademark portfolio on a country-by-country

basis.

Interestingly enough, for the first time in a long

time, in this coming session of the Supreme Court, they are

going to address an issue of extraterritorial application of

the Lanham Act, which is the exception. But the rule is that

IP rights apply in the U.S. if they are U.S. rights, and the

rule is not that it's sufficient to simply check to see if your

IP registration is valid in a few countries; and therefore, you

can then market it everywhere. 

What is the purpose of the trademark search? The

purpose is to indicate what countries are protectable and what

countries are not. We call it a knockout search, right?

So if the client comes to us and says, I would like

to register the mark in the U.S., and you run the knockout

search and in the knockout search, you are knocked out in the

U.S., you can't do it and then you have to go find another

mark, but you do that in each country. 

And I -- listen, I sympathize with companies as they

grow and they get bigger and enter new markets, but what

happens is they have to rebrand their products for some markets

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because it is simply not possible to market -- Total is the

name that comes to my mind. You see it all over Europe for

gasoline stations, but Total is also very well known as a

cereal and also I think a detergent in this country.

So while I understand and appreciate there might be a

relevance to intent generally, when you actually look at the

issues and you look at these national trademark searches, what

you are going to find is that our mark is on that search for

the U.S., right? So if you aren't paying attention to what the

search says, then you are not seeing that this registration

that we are here on today is a registration that was extant in

the U.S., applied for, then issued since 2018 and it says

warning, Don't go into the market with that mark because you

are risking a potential lawsuit, but more importantly you are

risking, you know, wasting funds on marketing a product, unless

perhaps the idea is that these products are so -- I don't know,

they have a limited life, it's good for a year. 

That may be, we heard similar testimony to that.

Maybe the attitude of the Defendant who names a product and

sells it for a period of a year, because they know it is going

to become passe and get replaced by the next Geek Bar or that

Bar, I can tolerate a little trademark infringement, no big

deal, but the reality is they knew it existed and that's what

the trademark search shows.

THE COURT: All right, let's move on.

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MR. ROTHMAN: Actual confusion: We have evidence, it

is not necessary. In fact, there was an amendment to clarify

the Lanham Act that says that the likelihood of confusion for

preliminary injunction under 1116 (A) is, in fact, inferred.

But here, we have even more. We have a -- evidence of at least

one of my client's distributors being confused by the back and

forth text messages thinking that ELF, which had been

historically associated with my client, was also ELFBAR now

associated with my client, and that turned out not to be the

case, and that was in Exhibit 11. So even though we don't need

actual confusion evidence, we do have some.

THE COURT: Are you perhaps overstating what one can

draw from that text message?

MR. ROTHMAN: I could be certainly overstating it.

Hey, are you the one behind ELFBAR?

Why would you think that?

Lol, you know why. Elf, wasn't that your device?

Certainly it indicates that the guy knows that my

client is the source, whether he really believed that my client

was also the source of ELFBAR, at the very least, he seems to

indicate that there is something wrong there. He is not a

trademark practitioner, so he definitely sees there is

something -- something isn't right with that.

THE COURT: There is no date on that chain from what

I remember from the text page or something.

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MR. ROTHMAN: I can't remember when it was that my

client testified that he received it, but my recollection was,

and we can look at the transcript, was that it was --

THE COURT: We are not expanding the record, if it is

in there, it is in there.

MR. ROTHMAN: Yeah, it was June of this year.

Okay. So we have taken all of those factors

together. We have demonstrated priority, we have demonstrated

Defendants' use in the marketplace, we have demonstrated all of

the factors indicating we have a mark. The mark is strong, the

mark is protectable, we demonstrated that we have a likelihood

of success here on this case. 

There is very little public interest that we really

can consider because the public interest does not favor

allowing marks to be infringed. It favors allowing trademark

owners to exercise their rights and to protect their marks, so

there is very little public interest. 

And before I address the bond, let's --

THE COURT: On the injury, I mean, there seems to be

a little bit of a theme that maybe your client's companies are

very small players, so in the grand scheme of things, this

isn't maybe that offensive because it kind of had already -- I

don't know, dwindled in sales prior to the ramping of the

ELFBAR. I'm summarizing, but that's a little bit of the tone

of the argument.

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MR. ROTHMAN: I have never seen a decision that says,

you know, The little player in the same exact market, okay, is

stripped of their trademark rights simply because a bigger

player came in and adopted their mark for exactly the same or

almost identical goods.

Really it would turn trademark law on its head if

that were the case. Then it really wouldn't be law anymore, it

would just be survival of the fittest.

So what is the Defendant really arguing? The

Defendant is really arguing that my client has been operating a

business and it's a good business, it is not the greatest

business, their business is the greatest.

Well, what makes their business great? Perhaps it

has something to do with the fact that my client picked a mark

that they jumped onto that people like, but my client didn't

have the necessary marketing, he didn't choose the right

flavors, maybe he needed to sell it already full, but that

doesn't mean that my client doesn't have rights and that my

client doesn't have the ability to protect it. It just means

that the Defendants were able to more effectively take

advantage, and I don't think that that is a -- that that inures

to the public interest. I think the opposite, I think --

THE COURT: All right. Now on the unlawful use

piece, assuming it were relevant, which I think is doubtful as

I have already expressed, where would it fit in the analytical

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framework?

MR. ROTHMAN: Well, it is a defense if it is

recognized, and it's a good question. I can't quite figure it

out on the preliminary injunction posture because it kind of

fits into the category of an affirmative defense, which is

almost never considered unless, you know, you are dealing with

something that is so strong, like in a copyright, a fair use

offense could potentially completely blow the Plaintiff's case

out of the water on an injunction, so I don't really know. 

What I can -- and I haven't found, because there is

very little law on it -- I haven't found something that says,

you know, where should the Court compartmentalize that. And

maybe Defense Counsel has found something, but I haven't found

anything.

What I would rather do is just really quickly give

you the reasons why we don't need to deal with it here. One,

is it's not recognized in the Eleventh Circuit, that's a simple

one.

Two, we are selling a product that arguably is not

unlawful, all right. The expert testified FDA has done nothing

about our product, and except for a couple of exceptions that

really don't apply, it's done nothing about any product like my

client's product. The Defendants' product is similarly

arguably unlawful or lawful, depending on how you look at it.

So, you know -- and their expert admitted that no

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fruit or mint flavored pods have been authorized for sale,

supposedly they have applied. I haven't seen any evidence of

their application for premarket authorization, but wouldn't

that really turn the whole unlawful use idea on its head if you

had a plaintiff and a defendant, both of whom arguably were

engaged in unlawful use, and I'm not admitting that at all, who

were able to rely in a case like this on that defense? It

doesn't make sense.

Whether or not a product can be sold, which is my

next point, doesn't depend upon is it lawful. It depends upon

the FDA, and the FDA's enforcement discretion is vast.

Obviously, it's resources are much smaller, right. It's

generally not FDA's part to play to move into the market and

deal with trademark owners who are disputing over who gets the

right to sell what based upon a product category that is pretty

much in limbo and has been for many, many years.

The thing you can say, though, is that the mark was

issued on the principal register and when the USPTO issued it,

it knew what the mark was being used for, and the Lanham Act

says, in section 1052, that the use has to be lawful. It also

can't be immoral, deceptive or scandalous, so now -- this isn't

the FDA's determination. We are talking here about trademark

law.

You can look and many of the marks that have been

applied for over the years to use products that are illegal,

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like cannabis, still illegal under federal law, have been

refused. Why? Because the trademark office views those as

being marks for unlawful use.

THE COURT: All right. No thank you, I think I

understand your position on this.

Let's turn to the bond.

MR. ROTHMAN: Okay. Can I just -- one more point?

THE COURT: Sure.

MR. ROTHMAN: There are two cases, if Your Honor is

really on the edge and thinking, maybe I want to hit this

unlawful use thing, okay. There are two cases out of

California that will convince you otherwise: In re: Phantom,

which is 2016 Westlaw 11503066, and In re: Juul, which is 497

F.Supp. 3d, 552, okay.

Reading those cases ought to be enough to convince

you you don't want to go there because it is a morass. I read

those cases and I shiver for what the judges were forced to

really have to slug through to get to issues because the issues

bound up in e-cigarettes are so complex, and this is a

trademark case.

Let's go to the bond. What we heard was some

testimony about what these two distributors, and only these two

distributors, are going to potentially lose. The last bit of

testimony we heard, I think was the most helpful because the

witness indicated that it would take approximately 90 days for

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the ELFBAR void to be filled, right? And we have his revenue

information, and if we looked at just the profit amount, we are

talking about an average monthly profit here of -- you know, it

appears to fluctuate from between 1 to 6 million or so on the

bottom set of statistics for gross profit.

THE COURT: That is a lot of money.

MR. ROTHMAN: It is a lot of money, right, and that

would be a really big bond for my client to have to post and

I'm not offering that.

What I'm offering is the following: First of all,

you have to take into account that what we are dealing with

here is an industry that we have seen will fill the void, and

the void is going to get filled with other products. I think

the testimony that, you know, there will be no substitutes is

really not credible.

I asked the gentleman specifically about this other

product called Lost Mary, which is actually one of the top ten

trending products next to ELFBAR on their website. And I don't

think that you can consider either this counterfeit product

argument because think about this, who created the counterfeit

problem? It wasn't my client, right. It was the Defendants,

the Defendants created a product that became hot and other

people wanted to copy it, and so the numbers that we see, even

if you consider them high, I think that those numbers are a

result of conduct that really shouldn't be considered because

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it is not equitable conduct. It's conduct by an infringer.

Now, there aren't a lot of cases. Your Honor's

discretion is pretty much where the Eleventh Circuit and the

other appeals courts begin and end when they talk about a bond,

right? It is in the district court's discretion, that's what

they say.

So there aren't very many cases that actually parse

out what Your Honor is going to consider. There is one case we

found during the break, it's a case that Judge Gold decided and

the Westlaw cite is 2009 Westlaw 10700667.

And in this case, what happens is the Court's issuing

a preliminary injunction says the usual about the Court having

discretion to issue one without security, notwithstanding the

mandatory statements in the rule that security, citing '78

Fifth Circuit case, says that security is generally not

required where the party seeking the injunction has a high

probability of success on the merits or if no evidence is

presented that a party will suffer damages.

So we have a high probability of success here. We do

have some evidence that the Defendants offer that they are

going to suffer damages from the issuance.

Then the Court says that at the evidentiary hearing,

plaintiff argued that a bond in this case should be in the

vicinity of 10 to $15,000. It was a franchise situation, which

is not uncommon for trademark. Defendants argued that the bond

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should be much higher to account for the investment defendants

have put into the nightclub and the expected profits during the

ten year duration of the agreement and ask asked for a bond of

10 million.

So the defendants said, We made all of this

investment into this thing that we now know we don't have the

rights to; and therefore, the plaintiff should be required to

put up a very high bond. The Court, Judge Gold, said, The

prevailing case law in this circuit does not support

defendant's basis for such a high bond, not least because

defendants continue to be in a position to operate the club,

even if less profitably at the outset, without the use of the

mark. Further, the high probability of plaintiff's success on

the merits counsels against the imposition of a substantial

bond," and the court goes on, I think, to impose a bond of

maybe $15,000. 

I mean, I look at this situation as one where,

analogous to here, there is a very high success rate of -- a

very potential for -- withdrawn.

THE COURT: I understand that point. I think at the

end of the day, you are recommending no bond or at the most,

what is your position?

MR. ROTHMAN: $100,000, I think is a reasonable

amount considering the financials that have been demonstrated.

There is no doubt that I think -- I almost never ask for no

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bond any more because I think it is required, but I think under

the circumstances, I think -- I don't know, I have a feeling

that amount makes sense.

I mean, you look at these numbers, it would make no

sense to award a bond in the millions. For what, for a product

that according to the testimony may have just come to the end

of its life anyway.

THE COURT: All right, thank you. Anything further?

MR. ROTHMAN: No, Your Honor.

THE COURT: All right. Let me hear from Mr. Heyer.

MR. HEYER: With Your Honor's indulgence, just given

the number of issues to address here, I would like to address

the unlawful use issue and the bond and potentially the balance

of harm and public interest, and then allow Ms. Shufflebarger

to address the factors of unlikelihood of confusion.

THE COURT: Certainly, we can split it up that way.

MR. HEYER: I'll echo Mr. Rothman's thanks for Your

Honor's close attention to this. Over the two days of the

hearing, there has been a lot of evidence, a lot of testimony

presented.

I'm going to start a little bit in reverse on the

bond issue because it was the last thing addressed. As Your

Honor saw, there are eight Defendants here, and I'm going t be

try and be expeditious. We had two of the distributers come

in, one with substantially larger profit and sales than the

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other, but between the two, that alone -- and one of them has

been selling for about 12 months, 12 or 13 months; the date of

the other, it was ten months of data, but right there, over

50 million dollars in profits.

I think it's fair to -- and we did not put evidence

in on the profits of the manufacturer, but those would

obviously be very substantial and likely more than what these

two distributors had.

We think it is a fair request to extrapolate out and

to request a bond of $200 million in this circumstance.

Certainly, 100,000, I think if we look at the numbers, I don't

even know if that's the profits on a single day's worth of

sales of this product.

And the trajectory -- what is particularly important

is the trajectory of the sales, and the testimony showed, and

Exhibits D21 and D22 show the trajectory is still increasing.

All of a sudden, if it hits a wall because of the injunction --

and we cited the case law. The purpose of the bond is if at

the end of the case, the ultimate decision is that the bond was

improperly imposed, that is the sole and exclusive remedy that

our clients have to have any chance -- they would never be made

completely whole.

I think Mr. Glauser testified about the lost

goodwill, the lost customer relationships they would suffer.

It is sort of the flip side of the coin on a preliminary

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injunction to an irreparable harm argument, but to have at

least some sort of or at least a partial remedy, this is it.

Frankly, I think 200 million itself, given these

numbers, is also understating it, but you know, at some point,

they are such large numbers.

And I would point Your Honor to some of the -- there

is very good case law that does discuss the need for bonds and

frankly for courts to be conservative in favor of the enjoining

party in setting a bond out of the Seventh Circuit. Focusing

on that and the realities of why the bond requirement exists

under Rule 65C, I would also point Your Honor to the case out

the Third Circuit that we cited that said, "Except in

circumstances where there is essentially zero evidence of any

potential loss, it is clearly reversible error not to require a

substantial bond."

So that's -- I agree with Mr. Rothman, there is not a

ton of developed case law around the country on this issue and

the Court does have a certain amount of discretion, but given

that this is the number one product, and there is no testimony

against that, in the country that's on a growing trajectory of

sales, it would be frankly calamitous for these Defendants to

be enjoined from selling this product.

When I say 200 million, I don't know how long it

would take to get to trial on the merits, I'm sort of assuming

that perhaps a year or so.

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THE COURT: But you are making use of the word

calamitous and that may be far more exaggerated than the

testimony supports. There was references to it being

detrimental, profit margins where from maybe 25 to 50 percent,

which certainly is substantial, but both of those companies

sell a number of other -- or distribute a number of other

brands and I think the market itself is fairly dynamic and

adjusts, so I don't know if it is fair to say this would be

calamitous, as you describe it.

MR. HEYER: I think for any employees that are laid

off that have gotten jobs because of this growth in sales and

then have to be laid off because of --

THE COURT: Certainly that's a human cost that's

quite difficult to absorb and I don't dispute that, from a

business-wide perspective.

MR. HEYER: Right. So that that's I think where we

are at on bond, but certainly 100,000 or anything that's --

that's so de minimis to not be near the realm of

reasonableness, I think.

THE COURT: Do you discount that amount at all by the

likelihood of success? As Mr. Rothman discussed, that sort of

the setting of the bond amount necessarily has to consider

Plaintiff's likelihood of success. Of course, I know you

dispute that, but at what point does the Court temper that

substantially depending on where the merits lie?

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MR. HEYER: Certainly the Court can take that into

account. I think -- I think frankly -- and I don't want to get

ahead of myself. I think frankly, we have a summary judgment

motion on the lawful use issue, I think there is zero

likelihood of success. And then even on the factors of

likelihood of confusion, our case is exceptionally strong and

I'll let Ms. Shufflebarger speak to that. 

That's certainly part of the mix, but that certainly

does not drive a number -- such a discount off of the numbers

that we have seen in D21 and D22 on profits and that.

Again, there are these harms that will necessarily be

suffered that are necessarily irreparable in terms of loss of

goodwill, and loss of customer relationships that no amount of

money can ever replace.

I think Mr. Rothman is fundamentally

mischaracterizing the reason for the bond and what the

testimony showed as far as how this market works, saying, Well,

other products will fill the void in 90 days. 

Well, for the manufacturer of this product, that's

not going to be their products that would fill the void, and

they are going to be out -- I mean, we are on this increased

trajectory -- a massive amount of sales, a massive amount of

profits, as will potentially these distributors lose those

customers. 

As Mr. Glauser, and I think every other fact

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witnesses testified, it is this particular product, it is the

hottest product, it is the consumer demand for this particular

product that is driving it, so it's not -- and Mr. Glauser

testified for his company, this is a product that has a much

higher profit margin than the others. 

So no matter from what direction you look at it, with

whatever lens, it's inappropriate to say, Well, other products

are going to come in and fill the void. Even if they do, the

harm is going to be massive financially for our clients, so

that's, I think, what I would say on the bond issue.

Maybe I'm going to work my way backwards a little bit

on the analysis. The public interest, I know often that sort

of gets short shrift in ruling on preliminary injunction

motions, at least in the written opinions. Here, I think --

and especially, Your Honor heard the testimony about the

propensity for counterfeit versions of highly popular products

with high consumer demand in this industry to come in and

satisfy consumer demand and if for whatever reason, be it FDA

action, be it circumstances like contemplated here, be it

supply issues like was the case in July of this year, where the

authentic, popular product is not available or not available in

quantities consumers are demanding, and there is no way to

quantify this. There is a very serious public health risk

because Mr. Glauser testified that these counterfeit products

that are already here and would likely only grow in

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distribution and sales to consumers would present -- there

would be more people inhaling things like Mr. Glauser testified

to with toxic metals, et cetera, and doing irreparable harm

potentially to lungs and their physical well-being if these

products are required to be taken off the market. 

I don't know how you quantify that, but I think the

public interest factor is -- this is a rare case, but this is

particularly important in this case given the public health

implications.

THE COURT: Basically for me to spin that out, these

two entities, right, they check if it is a reputable company,

one of them testified it conducts its own testing, so they

would be in the business of selling harmful products, is what

I'm hearing. So I would have to assume that the other

companies out there would then start selling harmful products

and the FDA would be nowhere to be seen and that should be the

Court's public interest analysis. It just seems quiet

amorphous and difficult really to grapple with under this

posture given the parties in this case.

MR. HEYER: I think Your Honor has to rely --

Mr. Glauser, like I said, has been in the industry from the

ground floor. This has been -- and I don't want to try to add

to the record, but essentially my practice is like the expert

that you heard and I, myself, have seen this. 

I mean, I litigated the very first e-cigarette case

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against the FDA and I, myself, have seen this. This is exactly

what happens; the consumer demand drives these products. And I

think Mr. Rothman doesn't disagree, FDA's enforcement resources

are finite and so this is a problem across-the-board. 

We, ourselves, are litigating many cases against

counterfeiters for different brand owners and that, and these

products find their way into the U.S. through one way or

another, and it's a very serious public health risk, so it's --

it's a fairly unique factor in this circumstance, but it is one

that I think the Court should not be quick to discount,

respectfully.

THE COURT: All right. I think we talked about bond,

public interest.

MR. HEYER: I'll leave the balance of harms to

Ms. Shufflebarger. I'll just note I don't think that was

really addressed at all by Mr. Rothman, and I'll leave that

prong to her, and I'll leave the likelihood of confusion in

terms of likelihood of success on the merits. 

But one, Plaintiff has to show a substantial

likelihood, which I think is not just getting over the --

getting over the 50 percent threshold.

THE COURT: Why is this not a substantial case?

Really at the end of the day, we are talking about ELF versus

ELFBAR. 

How do you get beyond that, the similarity of the

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retail outlets, it does seem quite similar I have to admit.

MR. HEYER: I'll let Ms. Shufflebarger speak to the

likelihood of confusion factors, but likelihood of success, the

Court -- the first thing they have to prove is not only that

they have senior rights, but that they have any rights at all.

THE COURT: This is entering your unlawful use

doctrine.

MR. HEYER: Exactly, because this is actually a

predicate to even looking at anything else. They have to --

they have an obligation to show that they actually had any

lawful --

THE COURT: So without unlawful use, what is your

argument?

MR. HEYER: I'm going to leave that to

Ms. Shufflebarger. 

THE COURT: Let's get to that because really that's

the heart of this case. I want to talk about substantial

likelihood of success, it is a preemptive factor and I think

that's where the Court needs to start her analysis.

MR. HEYER: Should she come up and I'll hit unlawful

use after that?

THE COURT: Yes.

MR. HEYER: We will do that, then.

MS. SHUFFLEBARGER: Thank you, Your Honor.

As Mr. Heyer was indicating and as you acknowledged,

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the test for a preliminary injunction is not just of

51 percent, it is a substantial likelihood of success. Courts

within the Eleventh Circuit also note that a preliminary

injunction is an extraordinary remedy and must be -- can't be

entered lightly and must be properly weighed.

As far as the burden, of course, that's on the

Plaintiff to prove this by a substantial likelihood. With all

due respect, I believe that Mr. Rothman's reliance on some of

the evidence that he believes supports some of these factors

are a bit overstated by what he says.

First, to -- Mr. Heyer hit on this point, ownership

of a mark is not just the priority issue. The standard is you

have to show ownership of a mark that, one, has priority; two,

it's valid; and three, it's protectable, so I believe that the

illegality point does come into play here. 

No one has filed their answer yet, there has not been

an opportunity to challenge the validity, so that is still an

open factor, notwithstanding the fact that they do possess a

federal registration, we are not conceding that.

As far as the actual --

THE COURT: So in terms of the timing, there is no

dispute that they have a registration.

MR. HEYER: There is no dispute that they have a

registration.

THE COURT: There is no dispute that your client

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didn't apply for one and did not get one, and that the PTO

referenced Plaintiff's registration in the course of denying

it?

MS. SHUFFLEBARGER: I would like to dispute the case

law -- how the case law laid that out. Would you like for me

to address that?

THE COURT: Yes, please.

MS. SHUFFLEBARGER: First off, there is authority

within this circuit, the Eleventh Circuit, that says as much

as -- you know, they are not bound by what exactly a trademark

examining attorney does at a lower level.

THE COURT: Certainly it is not dispositive, but it

is relevant.

MS. SHUFFLEBARGER: It's relevant, but it's not

dispositive. There is at least three cases we cite where that

is not a determinative factor.

This also weighs in on the intent factor. I believe

Mr. Rothman went a little far afield on what we were offering

the foreign search for. He is saying that it shows intent that

the trademark office denied our client's registration, and we

did it anyway.

All we want to show is the test is not -- the intent

of the test is -- the language is, excuse me, the intent to

misappropriate the proprietor's goodwill. So it's not, Well,

you found out about us and went on anyway. Were we intending

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to use their goodwill and the reason the foreign stuff is

relevant is because it shows that before we applied in the

United States, before Weiboli, not all of our defendants, of

course, before the USPTO issued that ruling, they had already

filed in other countries, so how do you say that we are

intending to trade on the goodwill of this client -- this

product, that even his client acknowledged he is humbled by how

small and not known they were.

So that was the only reason that we wanted to submit

that, and I appreciate that it's coming up in the Supreme

Court, but for the limited purpose of what we intended that to

show, it does not -- there is not evidence to show intent on

the part of our client.

Circling back to the -- do you have any other

questions on either of those, Your Honor, or should I circle

back to the earlier factors?

THE COURT: I think the way Plaintiff cast it is more

of an inference that you applied for a trademark, you were

denied the trademark; and nevertheless, you proceeded forward

using --

MS. SHUFFLEBARGER: Right.

THE COURT: Using arguably, the Plaintiff argues, the

mark itself.

MS. SHUFFLEBARGER: Yes, Your Honor. I'll point Your

Honor to the case law we cited on page ten of our brief, which

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is pretty much on all fours with the facts here. 

One case involved UPS, there was one case here where

actually Mr. Rothman was counsel of record that acknowledged

that it is not conclusive of what the trademark office does. 

In fact, the UPS case was on all fours. They were

refused, they went forward, the Sixth Circuit ruled in favor of

them, so there is authority out there that undercuts the

argument that what the PTO did in that one decision.

Also I will note that our clients didn't appeal that.

It would hold a little more weight if it had been an

adjudication by the trademark trial and appeal board or

subsequently appealed to higher grounds. This was basically an

examination attorney, an administrative professional.

THE COURT: Gotcha, okay. All right. You can move

on then beyond the intent factors.

MS. SHUFFLEBARGER: Sure. I would like to back up to

another factor that Mr. Rothman hit pretty hard on; the

strength of his client's mark. I don't think there is any

dispute that this is where it falls on the conceptual strength

scale. It's at least perhaps suggestive, it's not a coined

term.

But what Mr. Rothman's analysis misses and what the

Eleventh Circuit indicates has to be considered, in addition to

conceptual strength, is commercial strength. And the

commercial strength is the marketplace's recognition of the

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value of that mark and by Mr. Frija's own testimony, there is

no marketplace recognition of the client's mark. 

And how marketplace recognition is assessed is, one,

in terms of sales, and we have acknowledgment by him that his

sales vis-a-vis what our clients have done is minimal. 

Another thing is advertising expenditures, we have

no -- Plaintiffs have put in no evidence as far as advertising

expenditures whatsoever, so they haven't bourne their burden on

that point.

Another factor that goes into the commercial strength

that you can show is third party recognition of your brand. We

haven't gotten any evidence from Plaintiff showing third party

recognition of their brand.

Another way they can show that, and they have not

done, it is not mandatory, you can commission a survey to get

that in as far as the strength of the mark; granted, we are in

early stages. I can tell you that in other preliminary

injunction cases, I have had plaintiffs come up and have that

to show the strength out of the gate and we don't have that

here.

So the other -- the final thing on conceptual

strength or commercial strength goes to other third party uses

in the marketplace. It's not conclusive evidence here, but we

have some testimony that came in that there is some in the

marketplace now, albeit not perhaps prior to Plaintiff using

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it.

THE COURT: I'm sorry, I didn't follow that last

point you just made.

MS. SHUFFLEBARGER: There are other third parties

using ELF in the marketplace; in other words, they are not the

only ELF in the marketplace at this point in time.

THE COURT: Okay.

MS. SHUFFLEBARGER: As far as the similarity of the

marks, a couple of points to make on this. Mr. Rothman --

THE COURT: I guess, how does that cut? Maybe it is

just a great mark and people want to use it, which is --

MS. SHUFFLEBARGER: Well -- I'm sorry, I didn't mean

to --

THE COURT: No, no. Thank you.

MS. SHUFFLEBARGER: A of couple things. If there is

many in the mark, it shows that consumers can differentiate

between the various different users of the mark.

For example -- well, I don't know if it is in the

record, so I won't go there. But on some of the materials on

the exhibits, there were some ELFs that weren't necessarily our

client's products and that's how this comes into play.

THE COURT: Okay.

MS. SHUFFLEBARGER: The second way is the Plaintiff's

failure to police the marketplace against other people's use of

it, except for our client.

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As far as the similarity of the marks, there are a

couple of points I would like to make on that. First off,

there is not any dispute that Mr. Rothman's client has a

registration for just the word mark ELF, but --

THE COURT: Under the class that we are talking

about.

MS. SHUFFLEBARGER: Correct, correct, but likelihood

of confusion in the trademark office, as opposed to real

marketplace conditions, is not always coextensive. 

So for example, the trademark office, what they are

deciding is if you get that registration.

THE COURT: Could you slow down a little bit.

MS. SHUFFLEBARGER: I apologize. 

You get that piece of paper. The trademark office is

not empowered to tell you how you use it, they don't assess how

it is used in the marketplace and whether that will cause

likelihood of confusion. 

Here, as you can see from the exhibits that were

admitted, the manner and use of the mark is highly dissimilar.

Mr. Frija's product always has the circle with the ELF written

in that text; our client's does not, and that's just the

difference that --

THE COURT: I don't know if that's true or not. I

think maybe on some of the images that contain that little

circle have one, but then other times, it was the word itself.

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MS. SHUFFLEBARGER: The word ELF as opposed to --

THE COURT: Yes, like on the box maybe. Correct me

if I'm mistaken, but I don't know if it was limited to the

circle with the sort of oblong letters.

MS. SHUFFLEBARGER: Sure. I don't know, I don't have

it in front of me, Your Honor, you may be right.

It's a similar thing on similarity and dissimilarity

of the marks. There is authority cited in our brief that it's

improper to dissect a mark, you have to consider the mark as a

whole. So the parts that say, Well, ELF and ELFBAR, there are

all of these other bars, that was not dispositive, you have to

acknowledge and examine the mark as a whole. Our clients use

it as ELFBAR, it is not ELF.

THE COURT: How can you say it is not similar, just

similarity of the mark, how is it not similar?

MS. SHUFFLEBARGER: It's a matter of degree. I'm

just saying you have to consider -- when you are weighing these

factors and you are weighing the marks, you have to consider

it, it is a factual determination that Your Honor will have to

make.

THE COURT: What is your argument that it is not very

similar, that the marks are not very similar? I think this is,

you know, a requirement -- sorry, one of the seven factors in

determining likelihood of confusion and I'm just trying to

understand Defendants' argument as to why the similarity of the

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marks is not as strong as Plaintiff suggests.

MS. SHUFFLEBARGER: I'm just saying you have to --

you acknowledge and assess the entirety of the marks. There

are cases out there that I have dealt with where you have had

identical marks, but when you weigh all of the factors, it

still comes out that there is not confusion. I'm just saying

that's --

THE COURT: Okay. So you are agreeing that it is a

similar mark, but you are saying the other factors outweigh

prong two.

MS. SHUFFLEBARGER: Yes, and I'm saying the way it is

used is not identical.

THE COURT: And by that you mean with the font, as

you were referencing earlier, that sometimes it's in the

circle.

MS. SHUFFLEBARGER: And it is ELFBAR. No one is

going to call Mr. Glauser and try to order some ELF product,

they are ordering ELFBAR. And similarly with the Puff Bar,

they are known as Puff Bars, they don't call them Puff. 

I can't remember any of the other instances that

Mr. Rothman's very busy website had on it, but same deal; those

are known as the entirety of the mark, not truncated just as

ELF. I think that's a key point to make on that factor.

THE COURT: Got it, okay.

MS. SHUFFLEBARGER: The similarity and the

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dissimilarity of the goods, we don't dispute that they are

similar. They are not identical as far as what customers are

seeking from those respective products, I think our witnesses

today put on evidence, so I won't belabor the point on that.

THE COURT: What do you mean, that some are

disposable and some are not, is that what you are getting at?

MS. SHUFFLEBARGER: I think Mr. Glauser sort of

testified that customers seeking our client's product are

essentially nicotine addicted people looking for an alternative

and people seeking his Plaintiff's product or that type of

product are more people seeking cannabis, and I acknowledge

that they have acknowledged that their products are for

nicotine.

THE COURT: Okay.

MS. SHUFFLEBARGER: As far as the similarity and

dissimilarity of the parties' retail outlets and customers, I

appreciate that testimony from Mr. Frija both on Friday, the

18th and today, says that he sells to connivence stores, to

vape shops, but I point out there has been no examples of that,

no concrete examples have ever been given that show that they

are used in the same stores. And our people have been to -- I

think Mr. Glauser said thousands of these vape stores and have

never seen these people in the same place, and that also goes

to the next factor, which is similarity of advertising methods.

We had testimony from both of our gentleman today

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that they attend a substantial number of trade shows, which is

given limitations on advertising. That's a key way you get out

there and, you know, you press the flesh and you make

connections and sell your products and advertise yourself.

I think we have seen one advertisement in a B2B

magazine that they put into evidence, that's it. So there is

no evidence that the Plaintiffs have put in to bear their

burden that the advertising is the same.

In fact, when they put the magazines today in front

of our Defendant clients, they admitted they don't even read

those publications, so I think that was of limited probative

value on that -- on that point.

Now, as far as the intent, I think I hit on that

earlier, Your Honor, as far as the Eleventh Circuit said that

that shouldn't be persuasive authority and our client was

already applying all over in developing a worldwide brand, it

wasn't that they were trying to trade on the Plaintiff's

goodwill.

THE COURT: So you are saying the Eleventh Circuit

has said it's not persuasive or not determinative?

MS. SHUFFLEBARGER: It's not determinative and some

case law actually said it would be an error to give it much

weight at all. That case was -- I can't find it right now.

THE COURT: That's okay -- if it is cited in your

papers, I will --

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MS. SHUFFLEBARGER: "The Eleventh Circuit has stated

that the district court deciding trademark infringement is not

bound by, nor should it even be persuaded by a registration

decision rendered by an examining attorney." That's the Play

Nation case from 2010, Eleventh Circuit.

THE COURT: I'll take a look at that. Anything else

on the likelihood of confusion factors?

MS. SHUFFLEBARGER: One last one, Your Honor, and I

think you already hit on this, which is the one instance of

alleged confusion. 

Consumer confusion is when the confusion involves a

purchasing decision. It is not just somebody saying something

like, Hey, is that you. Mr. Frija did not put on any testimony

that his friend here, the lol guy, was contacting him to buy

ELFBAR, nor is he indicating that a transaction was consummated

or lost as a consequence of that exchange. 

And there is also case law from the Eleventh Circuit

we have cited, I think it was a Florida State University or

Florida Atlantic University case, where just a single instance

is not sufficient to carry your burden of showing actual

confusion, and I think that's all I have on confusion factors,

Your Honor.

THE COURT: All right. Thank you very much.

So Mr. Heyer, are you going to take us to unlawful

use now?

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MR. HEYER: Yes, Your Honor. I did want to hit on

the balance of harms factor, which is important, especially

when we consider -- when we consider the relative sizes and the

number of sales. That requires the Court to weigh the harm to

the Plaintiff in the event the injunction does not issue and

essentially the status quo continues versus the harm to the

Defendants if an injunction is issued, and I think the numbers

here, the sales numbers speak for themselves. Over four and a

half years, 2.4 million dollars in sales, I think about a

million dollars in profit, versus here the figures on the

revenues and the profit, just from these two Defendants alone,

is over 50 million dollars. 

And then going back to the issue of lost goodwill,

kind of what I hit on before; the lost goodwill, the employees

that could potentially be laid off et, cetera, clearly the

balance of harm weighs in favor of the Defendants.

And I will point out that in weighing these factors,

the Eleventh Circuit has said they need to carry their burden

on all of them, the Plaintiff, VPR, does. 

And so I think here as well -- and I talked about the

public interest a few minutes ago from the public health and

safety concerns about counterfeit products, but with respect to

balance of harms here, the harm to the Defendants if the

injunction issues is significantly more overwhelming than the

minimal harm that the Plaintiff will suffer, especially given

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Mr. Frija's admissions just a short while ago that he is

embarrassed by how low their sales actually are. We never saw

month to month sales, we don't know if the bulk of their sales

were back in 2018, 2019, and they actually have declined over

time.

And that actually goes to another point, which I

think does go to this issue of potential confusion, just to

circle back on something that Ms. Shufflebarger referenced.

The two Defendants here didn't even start selling

this product until -- the earliest was October of last year, so

this is -- and the sales, like I said, have ramped up. 

Mr. Frija testified in his direct examination

testimony that he saw the sales of their products drop off in

2020 and 2021. That as well indicates there is not any real

confusion going on here, he is not losing any sales because of

the fact that the ELFBAR products are now on the market. 

There is a temporal disconnect there of at least a

year, Your Honor, where their sales are already falling off,

potentially because the technology is older or what have you,

before ELFBAR even -- the sales even ramp up, and I think D21

and D22 show that ramp up in the sales and revenues

accordingly, so there's a massive temporal disconnect on that

point as well. 

So I'm finally going to circle back to what I think

should actually be the very first point in the analysis, which

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is are there any valid and enforceable trademark rights here to

enforce, which gets us to the issue of unlawful use. And this

is -- if this case were to be appealed, it would actually go up

to the Federal Circuit and the Federal Circuit would have to

apply Eleventh Circuit case law because there is a patent claim

involved here, it is a unique circumstance. And the Eleventh

Circuit hasn't ruled on this issue yet, but the Federal Circuit

itself has, as has the Ninth, as has the Tenth and the Federal

Circuit decisions go all the way back to 1987. 

We cited one case, Gray v. Daffy Dan's Bargaintown,

in our brief. There was another case from the Federal Circuit

in 1987, it's Ultacashmere House, Ltd v. Spring Mills, Inc.,

828 F.2d 1580.

I would respectfully submit that given that there is

no circuit split on this issue, the likelihood that the Federal

Circuit would come in and interpret the absence of Eleventh

Circuit case law on this issue to create effectively a circuit

split with itself and the Ninth and Tenth Circuits would be

extremely unlikely on this issue of the illegality.

Additionally, I know that Mr. Rothman has a Middle

District of Florida case where the Court declined to take this

up, but there are two other Southern District of Florida cases

where it has been take up. One we did cite in our brief, which

is the Plant Food versus Agrisource, Inc., (phonetic) case from

2016. It's a Lexis citation and that had to do with, I

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believe, EPA labeling requirements and if I recall correctly on

that case, and I think it is particularly relevant here, part

of the concern of the Court was this issue of illegality. 

The court didn't feel that it necessarily needed to

resolve it potentially at the preliminary injunction stage, but

it created enough of a cloud and enough of uncertainty that the

plaintiff was not going to carry its burden of substantial

likelihood of success. 

So even if the Court isn't convinced that we have

nailed down every last fact without having discovery,

et cetera, to definitively prove that there is a per se

violation here of the Food, Drug and Cosmetic Act, I think the

cloud alone that's been created by the evidence here about

whether these products have ever been legally marketed and

whether there are any valid trademark mark rights whatsoever in

the ELF Mark for VPR alone, without looking at anything else,

should foreclose the entry of a preliminary injunction here,

respectfully. 

There is also a second --

THE COURT: On the issue of the Federal Circuit and

the law that applies, so even though the preliminary junction

is being sought only on the trademark claim, your position is

that any appeal of an order on that would necessarily go to the

Federal Circuit, which then would apply Eleventh Circuit law

that hasn't at this point recognized the doctrine.

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 174 of 209
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MR. HEYER: Correct, Your Honor. It's -- we had

dropped a footnote, I could be off on this because I don't -- I

think it is the Oracle case that sort of clarified that

whenever there is a patent claim that is ever included in the

case, it necessarily goes up to the Federal Circuit, even

though the motion here isn't -- even thought the patent claim

was dismissed, and yet the appeal still had to go to the

Federal Circuit. So it is one of those vagaries of how the

statute is written. I think it's -- let me see if I can find

it, it's towards the first part I think.

THE COURT: That's okay. Just slow down, please.

On the unlawful use, I think you briefed that and

it's well argued at this point, it does seem, you know, there

is a merging area of the law, it is unclear, but at the end of

the day, the FDA is certainly capable of stepping in if it

wants to. 

It just seems quite hard to fathom Federal District

Courts basically engaging in that threshold inquiry when there

is no private right of action, so it seems, at least to me,

somewhat of an end-run around that absence of a private right

of action, and anyhow very interesting.

MR. HEYER: If I could address that, Your Honor, I'm

very familiar with the line of case law that I think our expert

was talking about on this. He says this it is an important

distinction legally and when he says there is no private right

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 175 of 209
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of action, and I have actually briefed this as well, that's a

private offensive right of action. And that's things like a

state attorney general coming in and saying, Well, because you

violated the Food, Drug and Cosmetic Act, you have necessarily

also violated the State Unfair Trade Practices statute. 

And there is case law out there that says Congress

gave the sole authority to enforce the Food, Drug and Cosmetic

Act to FDA and to the Department of Justice, and so we are not

going to have private plaintiffs come in and build causes of

action premised on that, but that's not the circumstance here.

The circumstance here is VPR is coming into this

Court seeking relief against our clients as Defendants, and we

are not using it as a sword, we are using it as it shield. And

part of their obligation is to show affirmatively that they

have valid trademark rights here and just showing that they

have a registration is not enough if they cannot show that they

have lawful use of that, and here, I think actually the record

is -- this could be a very complex thing. 

Mr. Rothman has these cases can of California that

say this is a morass, but it's legally not because at the end

of the day, it's a question of is there a per se violation of

the Federal Food, Drug and Cosmetic Act.

THE COURT: Well, thank you. I disrespectfully

disagree. I think the case law against you on this issue is

more persuasive and I am not inclined to basically step in and

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 176 of 209
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declare a mark invalid, even in a defensive posture. 

To the extent the arguments are relevant, I think

within -- within the overall analysis, maybe there is something

there, but even if it were considered, I think ultimate factual

conclusion is itself indeterminate, so we are left with that.

But I would like to wrap up our hearing up, so do you

have any additional argument to set forth now, Mr. Heyer, on

any other issues?

MR. HEYER: I just want to cite to the Court the

other Southern District case on that.

THE COURT: It is in your papers?

MR. HEYER: No, this one actually isn't, which is why

I wanted to cite it. It's Craft Kratom Lab, Inc. v. Mancini,

2013 U.S. District Lexis, 105852. 

And just on this point, I would ask if the Court -- I

would move orally that if the Court does grant the injunction,

I move that the Court stay the order to allow us to take an

emergency appeal, then, to the Circuit Court of Appeals to stay

the injunction, particularly based on this illegality point and

perhaps based on the other points as well.

THE COURT: If you want to seek a stay, you are

welcome to brief that, but an oral request won't be sufficient.

Like I said, I haven't decided what to do on the injunction.

MR. HEYER: I think that's everything I have, then,

Your Honor.

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THE COURT: Okay.

MR. HEYER: Thank you.

THE COURT: All right. Mr. Rothman, I'll give you

two minutes to wrap up, if you want. Otherwise we will --

MR. ROTHMAN: Great.

THE COURT: -- conclude the hearing.

MR. ROTHMAN: Thank you.

Addressing a few of the issues that were raised.

The video hookup.

So one of our exhibits, as Your Honor remembered, is

filed at 35-5, shows the ELF in the plain E-L-F characters, as

well as in the stylized version. Also, that's seen in

Exhibit 4, you see the world ELF as well as the stylized

version, so it comes in a few different flavors.

There was testimony in the record at the first

hearing by Zoom, right around pages 22 through 25, about the

advertising my client does. Included in that is this exhibit,

Exhibit 6, that is a point of sale display for the ELF product,

so there is many different ways we can advertise things, and

this is one of the ways.

You know, Ms. Shufflebarger said that my client said

there was no market place recognition. He didn't testify to

that. He has marketplace recognition, he was modest about his

sales because his sales are modest compared to the Defendants,

but Mr. Glauser sells my client's products on his website and

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 178 of 209
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he is aware of my client's other brands.

The counterfeit issue is an issue that I think is

really interesting, the idea that the Defendants are victims of

counterfeit ELFBARS. Well, you know, I looked at -- I was

looking on line for that and, in fact, there are -- you know,

Your Honor could do the Google search yourself and find, you

know, ELFBAR counterfeit things. 

If you think about it, who is in a better position to

deal with that, the Defendant who has no trademark rights or my

client that has a registered trademark; and therefore, has the

ability to file counterfeiting claims against the offenders.

Obviously, my client does. The Defendants may

complain about counterfeits, but they have no real power to

address the problem, so enjoining them and enjoining them with

a reasonable bond so that my client has money leftover to

pursue the counterfeiters and address this problem is actually

in the public interest.

If we are very concerned -- and no one is standing

here saying we are not concerned about people inhaling heavy

metals; of course, it is not a good thing. I don't know if

it's my client's fault, but if that's a real concern, then if

Counsel is in favor of granting the injunction and allowing my

client the resources it has to pursue other counterfeits so

that this stops. In the process, we perhaps resolve problem.

Finally, I will say that the case law indicates that

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 179 of 209
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avoiding confusion in and of itself is in the public interest.

Quote, "A preliminary injunction is not adverse to the public

interest because the public interest is served by preventing

consumer confusion in the marketplace," period. 

Thank you, Your Honor, for your time. I appreciate

it.

THE COURT: All right. Do the parties both want to

file post hearing briefs, findings of fact, conclusions of law?

I think that was Mr. Rothman's suggestion. 

Mr. Heyer, do you agree?

MR. HEYER: We agree.

THE COURT: How much time does each side request for

that process, Mr. Rothman?

MR. ROTHMAN: Perhaps we could do it as quickly as a

week from tomorrow, though perhaps two weeks might be a bit

more reasonable.

THE COURT: Mr. Heyer, what's your position?

MR. HEYER: Yeah, I don't know how quickly we can get

the transcript, I think two weeks definitely would be best.

THE COURT: Two weeks it is then, the deadline is

December 16th.

MR. ROTHMAN: Shall we observe the local rules on

page limits, Your Honor, or do you want --

THE COURT: Yes, and if you need more, than please

file a motion explaining in detail why.

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 180 of 209
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Any such papers, of course, should endeavor to cite

with as much specificity as possible to the transcript and to

the exhibits so I can follow along. 

Any other procedural matters to take up before we

recess?

MR. ROTHMAN: How does Your Honor wish to handle the

physical exhibits, the items in the magazines? I have no issue

leaving them with Your Honor and we typically pick them up from

the clerk when the clerk notifies us.

THE COURT: I think they should be conventionally

filed with the clerk by the parties, so you should take them

with you, and then get that done. And if you want to, just for

organization's sake, you know, photograph them and identify

them as such in your exhibit filings on CM/ECF, that way we

know what it is that they are, but otherwise the parties should

take care of the conventional filing of those exhibits.

MR. ROTHMAN: Great.

THE COURT: Anything else, Mr. Heyer?

MR. HEYER: I think that's it, Your Honor, for us.

Thank you.

THE COURT: Thank you all very much for being here.

It has been nice to see you in person, I think it's easier to

manage the hearing.

I hope you enjoyed your brief stay in Florida, and

the Court will take the motion under advisement. Thank you

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 181 of 209
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all.

MR. ROTHMAN: Thank you, Your Honor.

(PROCEEDINGS ADJOURNED AT 3:45 P.M.)

C-E-R-T-I-F-I-C-A-T-E

 I hereby certify that the foregoing is 

 an accurate transcription and proceedings in the 

 above-entitled matter. 

12/6/2022 /s/DIANE MILLER

 DATE DIANE MILLER, RMR, CRR, CRC 

 Official Court Reporter 

 United States District Court 

 101 South U.S. Highway 1 

 Fort Pierce, FL 34950 

 772-467-2337 

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Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 182 of 209
 BY MR. HEYER:

 [38] 13/5 15/8

 15/20 22/2 28/13

 31/13 32/19 33/19

 34/24 35/18 36/4

 36/21 37/2 37/15

 40/20 52/22 54/19

 58/10 59/4 59/12

 60/2 61/12 63/11

 65/14 66/10 67/20

 68/1 70/3 76/15

 85/6 89/12 95/3

 96/3 96/10 97/7

 122/16 123/12

 129/19

 BY MR.

 ROTHMAN: [35] 

 42/2 42/13 43/2

 43/14 44/15 44/25

 45/14 46/17 49/25

 73/2 76/5 76/23

 78/2 78/22 80/3

 81/7 81/12 82/9

 104/9 105/20

 107/21 109/14

 110/4 113/13

 114/4 114/19

 115/22 116/23

 117/3 118/13

 120/14 120/21

 121/8 121/15

 127/21

 BY THE COURT:

 [1] 125/24

 MR. HEYER: [90] 

 3/17 7/3 9/1 10/9

 11/19 12/1 12/11

 12/16 12/24 13/2

 15/14 32/10 32/13

 32/15 33/24 35/23

 36/17 36/20 37/9

 40/19 41/8 45/6

 49/22 52/20 53/24

 54/7 54/16 59/3

 65/13 67/16 68/10

 68/23 69/3 69/8

 70/1 72/21 77/14

 78/18 81/6 83/9

 83/17 83/20 84/2

 84/19 85/2 85/4

 95/13 95/17 96/24

 104/2 104/5 105/7

 105/11 109/10

 109/19 116/7

 116/10 118/3

 118/9 120/12

 121/2 121/12

 122/14 123/18

 123/25 129/17

 130/14 150/11

 150/17 153/10

 153/16 154/1

 156/20 157/14

 158/2 158/8

 158/14 158/20

 158/23 159/23

 171/1 175/1

 175/22 177/9

 177/12 177/24

 178/2 180/11

 180/18 181/19

 MR. ROTHMAN:

 [94] 3/10 3/16

 4/10 4/21 6/5 8/5

 8/24 11/11 11/25

 15/17 34/2 34/6

 34/14 34/17 35/25

 37/12 41/11 41/14

 41/22 41/24 42/10

 42/24 44/10 44/13

 52/18 68/22 68/24

 69/4 69/12 69/16

 72/25 76/4 76/12

 77/8 77/12 77/22

 78/20 79/15 79/22

 79/24 80/1 82/5

 82/8 83/6 84/4

 84/9 84/13 95/16

 97/3 104/7 107/16

 109/13 110/3

 114/2 114/15

 116/5 116/8

 116/13 116/17

 116/20 118/1

 118/6 120/18

 121/3 122/10

 123/4 124/13

 124/23 125/10

 125/19 127/18

 129/15 130/23

 131/10 134/10

 138/23 141/1

 141/14 142/1

 142/6 143/1 144/2

 146/7 146/9 147/7

 149/23 150/9

 178/5 178/7

 180/14 180/22

 181/6 181/17

 182/2

 MS.

 SHUFFLEBARGE

R: [32] 5/14 6/13

 6/24 32/12 79/21

 124/3 158/24

 160/4 160/8

 160/14 161/21

 161/24 162/16

 164/4 164/8

 164/12 164/15

 164/23 165/7

 165/13 166/1

 166/5 166/16

 167/2 167/11

 167/16 167/25

 168/7 168/15

 169/21 170/1

 170/8

 THE CLERK: [1] 

 3/5

 THE COURT:

 [219] 

 THE

 COURTROOM

 DEPUTY: [6] 

 12/19 12/21 54/12

 84/23 125/13

 125/15

 THE WITNESS:

 [45] 12/23 20/13

 20/21 21/15 21/22

 28/8 30/16 30/22

 31/4 40/6 40/16

 43/13 45/9 46/10

 46/13 54/10 54/14

 58/9 60/1 61/10

 62/16 62/22 63/6

 63/9 65/2 65/9

 65/25 66/9 67/19

 68/15 68/18 68/20

 75/23 84/25 94/22

 95/24 96/2 105/17

 112/23 113/9

 121/13 123/7

 123/21 125/17

 130/18

$

$100,000 [1] 

 149/23

$15,000 [2] 

 148/24 149/16

$200 [1] 151/10

$200 million [1] 

 151/10

$86,000 [1] 

 137/22

'

'21 [5] 68/24 69/1

 69/3 96/7 106/13

'22 [4] 68/25 69/2

 96/8 106/13

'78 [1] 148/14

/

/s/DIANE [1] 

 182/8

1

1,000 [2] 56/4

 58/5

10 [5] 127/22

 127/23 129/20

 129/25 148/24

10 million [2] 

 28/3 149/4

10,000 [1] 126/19

100 [2] 1/17 101/9

100,000 [3] 

 127/10 151/11

 153/17

101 [2] 2/2 182/10

104 [1] 2/18

1052 [1] 145/20

105852 [1] 177/14

10700667 [1] 

 148/10

10:17 [2] 41/16

 41/19

10:30 [1] 41/18

10:31 [1] 41/20

11 [9] 15/2 15/5

 15/6 15/7 15/11

 15/15 15/18 15/19

 141/10

11/21/17 [1] 

 132/21

11/24 [1] 132/21

1116 [1] 141/4

11503066 [1] 

 146/13

11:39 [1] 84/14

12 [2] 151/2 151/2

12/6/2022 [1] 

 182/8

122 [1] 2/19

125 [1] 2/21

127 [1] 2/22

128 million [1] 

 106/14

129 [1] 2/23

12:55 [1] 84/15

12th [1] 70/6

13 [4] 2/10 86/9

 136/11 151/2

14 [1] 136/11

15 [5] 41/17 83/24

 84/2 86/16 106/21

15 percent [2] 

 119/14 119/15

150 million [1] 

 106/18

1508477 [1] 10/14

1580 [1] 173/13

15th [3] 18/12

 18/16 41/3

16 [11] 33/13

 33/16 33/18 33/25

 34/23 47/25 48/2

 48/6 48/11 49/15

 115/11

16th [1] 180/21

17 [9] 35/17 35/24

 36/1 36/3 36/17

 49/14 49/16

 115/11 132/21

18 [11] 36/16

 36/22 36/23 36/24

 37/1 37/10 37/13

 37/14 48/14 49/14

 49/16

18,000 [1] 51/5

18th [3] 3/23

 122/18 168/18

19 [7] 12/3 42/25

 43/3 43/24 44/18

 59/23 95/20

1919 [1] 1/22

1987 [2] 173/9

 173/12

1993 [1] 13/14

1998 [2] 13/15

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1

1998... [1] 13/22

1999 [1] 13/23

19th [1] 137/15

1:50 [1] 84/6

1:59 [1] 125/6

1st [1] 13/11

2

2.4 [1] 171/9

20 [2] 66/3 66/3

20 percent [1] 

 106/21

20,000 [1] 51/5

200 million [2] 

 152/3 152/23

2003 [1] 14/1

20036 [1] 1/22

2007 [7] 13/11

 18/12 18/16 24/19

 24/20 41/3 86/15

2009 [5] 14/17

 18/1 20/2 86/1

 148/10

2010 [1] 170/5

2011 [1] 86/7

2013 [3] 10/14

 10/15 177/14

2015 [3] 10/19

 10/20 63/9

2016 [11] 20/8

 22/13 22/24 25/6

 25/9 25/16 28/5

 39/21 55/19

 146/13 173/25

2017 [4] 23/9

 39/22 41/5 132/21

2018 [9] 23/3 23/6

 55/10 55/12 55/21

 64/15 128/2

 140/12 172/4

2019 [2] 27/1

 172/4

2020 [15] 23/17

 23/18 25/12 25/17

 27/2 29/22 32/1

 32/7 32/22 47/21

 48/9 49/13 122/23

 123/13 172/14

2021 [9] 88/12

 96/11 97/19

 122/24 123/16

 123/17 137/15

 137/21 172/14

2022 [21] 1/7

 23/11 48/15 48/18

 57/17 57/18 57/22

 68/19 68/20 69/10

 70/6 70/6 70/23

 71/21 88/15 96/11

 97/19 98/11

 106/22 128/2

 182/8

209 [1] 1/8

21 [9] 67/15 67/24

 68/2 69/14 69/25

 70/2 70/4 70/8

 70/12

21301 [1] 1/17

21CFR1143.1 [1] 

 52/8

22 [24] 44/11

 44/16 44/24 45/4

 45/10 47/7 95/14

 95/16 96/4 96/9

 96/25 97/2 97/4

 97/6 97/8 104/2

 104/4 106/10

 106/25 112/5

 119/10 123/15

 137/20 178/16

22-cv-81576-CAN

NON [2] 1/3 3/5

23 [6] 76/13 76/17

 76/21 77/12 77/19

 77/20

2337 [2] 2/3

 182/11

2385 [1] 1/24

24 [7] 76/13 76/17

 76/21 77/12 77/19

 77/20 132/21

25 [16] 47/24

 61/19 76/13 76/17

 76/22 77/12 77/19

 77/21 82/1 82/4

 102/13 105/24

 106/17 126/20

 153/4 178/16

25 percent [1] 

 89/8

26 [7] 114/17

 114/22 115/21

 115/24 118/2

 118/8 118/12

27 [8] 32/22 48/9

 49/13 116/4 117/2

 118/2 118/8

 118/12

27th [1] 47/21

283 [1] 85/23

29 percent [1] 

 119/10

2958 [1] 10/19

2:00 [1] 84/5

2:11 [1] 125/7

3

30,000 [1] 86/22

31 [1] 70/6

32 [1] 91/14

33 [2] 5/16 6/23

33433 [2] 1/17

 1/24

34 [1] 132/19

34950 [2] 2/3

 182/11

35 percent [4] 

 89/8 105/24 106/1

 106/17

35-10 [1] 127/22

35-5 [1] 178/11

3:45 [1] 182/3

3d [1] 146/14

4

40 [3] 55/8 112/12

 112/14

400 [1] 1/24

42 [1] 2/11

467-2337 [1] 2/3

497 [1] 146/13

5

5,000 [1] 87/7

50 [3] 61/11 90/15

 171/12

50 million [1] 

 151/4

50 percent [4] 

 59/16 72/1 153/4

 157/21

500 [1] 106/2

51 percent [1] 

 159/2

510 [5] 117/9

 117/11 117/12

 117/20 117/23

52 [1] 2/12

54 [1] 2/14

552 [1] 146/14

6

6 million [1] 

 147/4

600 [1] 106/18

600 million [4] 

 105/19 105/21

 106/2 106/19

65C [1] 152/11

7

700 [1] 1/22

73 [1] 2/15

772 [1] 2/3

772-467-2337 [1] 

 182/11

8

828 [1] 173/13

85 [1] 2/17

9

90 [5] 112/12

 112/14 137/23

 146/25 154/18

902.6 [1] 77/9

910 [1] 17/22

99 percent [1] 

 87/18

9th [2] 25/12

 25/17

A

a.m [3] 41/19

 41/20 84/14

abbreviation [1] 

 94/23

ability [5] 4/14

 33/11 129/11

 143/19 179/11

above [2] 108/3

 182/7

above-entitled [1]

 182/7

absence [3] 

 112/15 173/16

 175/20

absolutely [9] 

 28/18 86/19 93/10

 94/16 99/3 99/23

 103/4 104/1

 114/12

absorb [1] 153/14

accept [1] 118/4

acceptable [1] 

 5/25

access [2] 80/20

 84/9

accessible [1] 

 95/12

according [8] 

 34/11 48/24

 106/10 106/12

 106/25 119/17

 124/20 150/6

accordingly [1] 

 172/22

account [3] 

 147/11 149/1

 154/2

accurately [3] 

 70/4 70/8 70/12

accused [1] 7/10

acknowledge [3] 

 166/12 167/3

 168/11

acknowledged [4]

 158/25 161/7

 162/3 168/12

acknowledgment

 [1] 163/4

acquired [1] 

 62/14

acronym [1] 

 42/16

across [8] 88/20

 103/22 105/4

 106/8 115/18

 117/25 119/14

 157/4

Act [19] 17/23

 18/2 18/23 21/25

 28/1 38/1 39/17

 40/23 40/25 46/2

 46/15 46/22

 139/10 141/3

 145/19 174/12

 176/4 176/8

 176/22

action [31] 20/9

 21/13 21/24 27/5

 27/10 29/15 30/10

 30/14 30/17 32/2

 37/24 38/2 38/3

 38/4 45/15 45/16

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A

action... [15] 

 45/21 46/14 47/7

 51/24 52/1 81/14

 102/19 137/9

 137/21 155/19

 175/19 175/21

 176/1 176/2

 176/10

actions [7] 17/19

 45/23 46/24 47/9

 47/12 47/13 53/19

activate [1] 79/17

activated [1] 

 79/20

actively [1] 

 130/12

activities [2] 

 17/12 62/6

activity [2] 17/8

 17/16

adapter [2] 

 117/11 117/12

adapting [1] 

 99/25

add [5] 6/12 60/8

 64/5 124/22

 156/22

addicted [4] 

 92/15 92/21 95/8

 168/9

adding [1] 96/17

addition [3] 16/3

 71/13 162/23

address [11] 4/12

 139/5 139/9

 142/18 150/12

 150/12 150/15

 160/6 175/22

 179/14 179/16

adheres [1] 28/1

ADJOURNED [1] 

 182/3

adjudication [1] 

 162/11

adjusts [1] 153/8

Administration

 [1] 14/9

administrative [1]

 162/13

admission [8] 

 15/14 33/24 35/23

 37/9 68/10 69/14

 96/24 118/1

admissions [1] 

 172/1

admit [2] 69/17

 158/1

admitted [30] 

 12/3 12/5 13/17

 13/19 13/22 15/18

 15/19 32/9 34/21

 34/23 36/1 36/3

 37/13 37/14 69/24

 70/2 77/19 77/20

 97/5 97/6 116/12

 116/20 118/10

 118/12 124/5

 124/8 130/25

 144/25 165/19

 169/10

admitting [1] 

 145/6

adopt [2] 6/15

 22/19

adopted [1] 143/4

ads [1] 136/22

adult [2] 94/6

 94/9

adulterated [2] 

 73/24 74/23

adults [4] 92/15

 104/21 104/23

 120/11

advance [1] 73/5

advanced [1] 

 23/12

advantage [1] 

 143/21

adverse [1] 180/2

advertise [3] 

 76/19 169/4

 178/19

advertised [5] 

 49/2 91/2 91/9

 91/18 136/25

advertisement [1]

 169/5

advertising [12] 

 48/18 52/24 81/22

 135/23 136/15

 136/21 163/6

 163/7 168/24

 169/2 169/8

 178/17

advisement [1] 

 181/25

advisory [1] 

 16/20

advocacy [1] 

 14/23

advocates [1] 

 104/20

affiliated [1] 

 54/20

affirmative [1] 

 144/5

affirmatively [1] 

 176/14

afield [1] 160/18

aftermath [1] 

 111/24

afternoon [2] 

 104/10 104/11

afterward [1] 

 65/12

agency [1] 24/7

aggressive [2] 

 17/19 46/24

agreement [3] 

 6/21 7/5 149/3

Agrisource [1] 

 173/24

AILEEN [1] 1/13

AK [1] 80/5

al [1] 3/7

albeit [1] 163/25

alleged [1] 

 170/10

allow [5] 34/21

 116/5 125/19

 150/14 177/17

allowed [1] 5/10

allowing [3] 

 142/15 142/15

 179/22

allows [2] 26/4

 131/14

almost [13] 64/18

 86/16 86/17 100/1

 100/6 100/21

 103/22 110/18

 117/10 132/22

 143/5 144/6

 149/25

alone [6] 28/16

 28/22 151/1

 171/11 174/13

 174/16

alternative [8] 

 61/5 79/9 92/16

 92/21 104/21

 114/5 119/22

 168/9

Although [1] 

 38/15

amended [1] 18/2

amendment [1] 

 141/2

amendments [1] 

 18/24

amongst [1] 92/5

amorphous [1] 

 156/18

amount [15] 8/23

 66/1 70/18 107/1

 118/22 138/8

 147/2 149/24

 150/3 152/18

 153/20 153/22

 154/13 154/22

 154/22

analogous [1] 

 149/18

analysis [7] 131/7

 155/12 156/17

 158/19 162/22

 172/25 177/3

analytical [1] 

 143/25

ANNA [2] 1/21

 3/19

answer [9] 25/13

 52/3 95/22 120/2

 120/6 120/8 122/9

 124/24 159/16

answers [2] 

 42/19 109/20

anticipate [2] 5/7

 101/14

anyhow [1] 

 175/21

anymore [2] 

 134/1 143/7

Anytime [1] 99/23

apologize [4] 

 29/14 77/23 89/10

 165/13

appeal [5] 162/9

 162/11 174/23

 175/7 177/18

appealed [2] 

 162/12 173/3

appealing [1] 

 120/1

appeals [2] 148/4

 177/18

appearance [1] 

 4/3

appearances [2] 

 1/14 3/8

application [9] 

 23/5 23/21 23/22

 23/25 25/3 27/22

 103/18 139/9

 145/3

applications [4] 

 31/5 31/22 94/20

 94/22

applied [8] 78/12

 78/23 78/25

 140/12 145/2

 145/25 161/2

 161/18

applies [2] 70/9

 174/21

apply [7] 14/12

 131/5 139/11

 144/22 160/1

 173/5 174/24

applying [1] 

 169/16

appreciate [8] 4/3

 110/25 120/19

 131/15 140/5

 161/10 168/17

 180/5

approach [5] 12/1

 12/13 67/16 95/13

 116/6

approached [1] 

 47/2

approaching [2] 

 90/24 101/9

April 27 [3] 32/22

 48/9 49/13

April 27th [1] 

 47/21

arbitrary [2] 

 133/24 134/13

area [4] 51/16

 51/19 63/1 175/14

areas [1] 120/20

aren't [6] 9/4

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A

aren't... [5] 68/22

 121/14 140/9

 148/2 148/7

arguably [5] 

 34/13 144/19

 144/24 145/5

 161/22

argued [3] 148/23

 148/25 175/13

argues [1] 161/22

arguing [2] 143/9

 143/10

argument [9] 

 131/3 142/25

 147/20 152/1

 158/13 162/8

 166/21 166/25

 177/7

arguments [1] 

 177/2

arises [1] 131/6

arm [2] 20/19

 20/23

array [1] 46/7

arrival [1] 122/24

articulation [1] 

 6/2

arts [1] 13/14

aspects [2] 22/7

 132/3

assembly [1] 

 29/10

assert [1] 21/3

asserted [1] 21/3

assess [2] 165/15

 167/3

assessed [1] 

 163/3

assets [1] 101/19

assistance [1] 

 46/21

associate [2] 

 128/20 128/22

associated [2] 

 141/8 141/9

associates [1] 

 3/11

association [5] 

 16/13 16/16

 104/16 104/18

 104/19

associations [1] 

 16/19

assume [3] 29/2

 130/21 156/14

assuming [4] 

 7/15 39/15 143/24

 152/24

Atlantic [1] 

 170/19

atomizers [1] 

 63/25

attach [2] 117/4

 117/19

attached [1] 

 117/6

attempt [4] 10/9

 122/22 137/10

 137/10

attend [4] 53/13

 60/19 90/12 169/1

attended [1] 53/8

attenuated [1] 

 34/19

attitude [1] 

 140/19

attorney [6] 13/7

 14/4 160/11

 162/13 170/4

 176/3

attorney's [1] 7/6

attorney-client [1]

 14/4

attorneys [1] 

 131/14

attorneys's [1] 

 84/10

attracting [1] 

 136/20

attractive [2] 

 120/10 120/11

attracts [1] 

 136/21

attribute [2] 95/4

 129/11

attributed [1] 

 122/23

attributes [1] 

 115/14

August 2016 [1] 

 28/5

August 8 [5] 

 22/24 25/6 25/9

 25/16 39/21

Australia [1] 53/5

authentic [3] 

 73/10 74/23

 155/21

authenticating [2]

 5/20 77/10

authenticity [3] 

 34/2 34/4 73/23

authorities [2] 

 51/18 130/8

authority [14] 

 18/2 20/2 20/3

 20/6 21/8 28/20

 51/15 51/22 101/3

 160/8 162/7 166/8

 169/15 176/7

authorization [29]

 17/22 18/5 21/20

 22/9 22/15 23/1

 23/20 23/24 24/2

 25/10 26/25 27/5

 27/11 28/10 28/15

 30/21 31/10 31/17

 38/1 39/18 39/23

 39/25 41/6 41/7

 43/16 43/20 45/3

 45/10 145/3

authorizations [3]

 31/1 31/6 31/7

authorized [5] 

 24/14 31/19 45/11

 45/12 145/1

auto [6] 60/5

 89/14 89/22

 100/10 122/23

 130/3

avail [2] 39/19

 41/4

average [4] 87/7

 90/14 119/13

 147/3

avoid [1] 19/24

avoiding [1] 

 180/1

award [1] 150/5

B

B2B [1] 169/5

bachelor [1] 

 13/14

background [1] 

 13/12

backwards [1] 

 155/11

balance [5] 

 150/13 157/14

 171/2 171/16

 171/23

bar [34] 1/8 13/22

 82/16 82/17 82/19

 82/21 82/21 82/24

 83/3 102/13

 102/16 102/18

 108/12 108/15

 108/18 108/24

 108/24 111/15

 119/6 119/6

 119/12 133/11

 133/11 133/12

 133/12 133/12

 133/12 133/13

 133/15 133/16

 133/17 140/21

 140/22 167/18

barely [1] 134/6

Bargaintown [1] 

 173/10

bars [2] 166/11

 167/19

base [1] 112/11

basis [12] 61/24

 62/3 62/20 67/1

 89/4 100/19

 110/13 111/19

 136/17 136/18

 139/6 149/10

batteries [2] 

 28/21 64/1

battery [13] 26/17

 28/24 66/1 66/7

 116/8 116/9 117/1

 117/4 117/7

 117/10 117/19

 128/25 130/11

bear [1] 169/7

behind [2] 15/9

 141/15

belabor [1] 168/4

below [6] 74/6

 108/10 108/16

 134/3 134/4 134/5

benefit [3] 55/14

 93/13 125/5

besides [3] 43/16

 63/16 98/20

beyond [7] 45/7

 45/23 46/24

 105/11 123/5

 157/25 162/15

Biff [4] 108/15

 108/24 119/6

 119/11

bigger [5] 93/22

 111/5 134/16

 139/24 143/3

biggest [3] 107/4

 107/9 107/11

binder [4] 15/1

 26/19 29/19 32/3

binders [1] 12/13

biography [1] 

 15/6

blade [1] 26/10

block [1] 46/6

blocked [1] 

 106/11

blog [2] 16/1 16/3

blow [1] 144/8

board [6] 103/22

 104/15 105/4

 106/8 157/4

 162/11

boards [1] 16/20

Boca [2] 1/17

 1/24

body [1] 95/2

bond [32] 8/19

 8/23 132/12

 142/18 146/6

 146/21 147/8

 148/4 148/23

 148/25 149/3

 149/8 149/10

 149/15 149/15

 149/21 150/1

 150/5 150/13

 150/22 151/10

 151/18 151/19

 152/9 152/10

 152/15 153/17

 153/22 154/16

 155/10 157/12

 179/15

bonds [1] 152/7

bottle [1] 56/21

bottom [2] 11/22

 147/5

bound [3] 146/19

 160/10 170/3

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B

bourne [1] 163/8

box [2] 71/14

 166/2

boxes [1] 95/20

brand [36] 6/15

 44/17 56/8 56/18

 56/20 58/1 58/6

 58/16 58/19 59/6

 59/8 59/14 59/18

 63/16 63/18 68/17

 74/8 80/18 80/23

 82/2 82/13 88/11

 88/18 90/7 102/9

 107/5 107/6

 121/22 121/24

 122/1 122/7

 129/22 157/6

 163/11 163/13

 169/16

branded [19] 

 40/22 57/1 57/12

 57/20 58/24 62/7

 62/11 63/15 71/2

 88/4 91/2 91/8

 91/13 91/17 91/22

 92/1 92/9 100/10

 101/24

brands [20] 1/4

 3/6 3/12 3/13

 56/18 56/19 57/5

 61/9 61/11 75/24

 75/25 88/7 100/2

 113/22 114/1

 121/16 128/21

 132/19 153/7

 179/1

Brands' [2] 60/5

 89/14

breakdown [1] 

 129/21

brick [1] 90/21

bridge [1] 95/10

brief [6] 161/25

 166/8 173/11

 173/23 177/22

 181/24

briefed [3] 131/17

 175/12 176/1

briefs [1] 180/8

broad [2] 6/18

 105/14

broken [1] 132/9

BRYAN [5] 2/9

 12/11 12/20 12/23

 13/7

Buffalo [1] 85/15

build [1] 176/9

bulk [1] 172/3

bullet [1] 32/24

burden [6] 159/6

 163/8 169/8

 170/20 171/18

 174/7

Burma [1] 101/12

business [21] 

 9/10 55/4 62/23

 71/25 72/4 85/16

 86/4 89/6 96/22

 99/24 101/6

 121/18 128/6

 138/25 143/11

 143/11 143/12

 143/12 143/13

 153/15 156/13

business-wide [1]

 153/15

busy [1] 167/21

C

C-A-I-R-N-S [1] 

 10/14

C-E-R-T-I-F-I-C-AT-E [1] 182/4

C-H-E-M-E-N-C-E

 [1] 10/17

Cairns [1] 10/13

calamitous [3] 

 152/21 153/2

 153/9

calculated [1] 

 97/14

Caliburn [4] 33/4

 33/4 35/1 37/3

California [3] 

 63/1 146/12

 176/19

camera [1] 11/21

Canada [2] 53/5

 126/4

cancel [1] 132/23

candidly [1] 44/4

candy [2] 120/9

 133/13

cannabis [3] 

 92/25 146/1

 168/11

CANNON [3] 1/3

 1/13 3/5

capable [1] 

 175/15

capacity [2] 66/2

 66/6

capitalizing [1] 

 133/16

capture [1] 

 107/18

captured [1] 6/14

CARRIE [2] 1/20

 3/19

carry [3] 170/20

 171/18 174/7

cartridge [11] 

 26/6 26/7 26/15

 26/16 26/17 27/7

 27/7 27/12 31/7

 31/9 36/7

cartridges [3] 

 26/1 26/12 31/12

cast [1] 161/17

catch [1] 56/15

categories [9] 

 9/23 10/24 22/8

 58/14 88/20 106/6

 115/2 117/25

 134/21

category [29] 

 20/4 27/4 27/12

 58/8 58/9 58/12

 58/18 58/19 59/1

 59/1 64/12 64/22

 86/25 87/1 93/6

 93/7 102/20 108/8

 114/23 115/1

 115/4 115/18

 116/24 134/8

 135/8 135/15

 135/20 144/5

 145/15

CBD [2] 92/22

 92/23

cease [1] 87/25

center [8] 1/24

 50/23 51/1 51/7

 51/10 53/14 80/9

 107/25

centers [1] 50/24

CEO [1] 3/12

cereal [1] 140/4

certificate [4] 

 73/23 73/24

 132/17 134/25

certify [1] 182/5

cetera [5] 52/14

 95/2 156/3 171/15

 174/11

chain [4] 56/16

 63/3 74/3 141/24

challenge [2] 

 21/16 159/17

challenged [1] 

 23/14

challenges [1] 

 20/25

challenging [1] 

 109/7

chance [1] 

 151/21

channels [2] 56/6

 87/14

characteristics

 [1] 29/13

characterization

 [1] 9/18

characterize [1] 

 97/21

characters [3] 

 134/24 135/2

 178/11

charge [1] 53/14

Charlotte [2] 55/2

 55/2

chart [2] 97/25

 107/3

charts [1] 99/13

cheaper [1] 72/20

Chemence [1] 

 10/17

chemically [1] 

 92/25

chemistry [1] 

 95/1

chief [1] 85/11

children [2] 

 120/10 120/11

China [7] 56/24

 86/2 86/15 87/17

 99/4 121/18 130/5

Chinese [4] 48/25

 98/22 99/24 130/8

choice [1] 36/15

choose [2] 26/4

 143/16

chose [3] 19/20

 25/19 138/16

Cig [2] 29/22

 30/14

cigar [5] 44/1

 44/2 44/3 44/5

 44/7

cigarette [65] 

 14/14 14/17 14/21

 17/7 23/11 24/13

 25/3 25/15 25/21

 25/22 25/22 25/23

 26/7 26/9 26/13

 27/8 27/24 28/15

 31/16 35/21 37/18

 39/3 55/11 55/15

 55/18 55/24 56/3

 56/7 56/22 58/9

 58/13 59/7 60/5

 60/20 61/2 61/15

 61/18 61/23 63/12

 65/7 65/21 65/23

 66/2 72/11 78/16

 78/16 78/23 86/10

 86/13 86/21 89/14

 90/12 90/19 90/22

 93/16 93/16 93/17

 94/1 94/6 94/7

 94/7 94/12 132/20

 132/20 156/25

cigarettes [62] 

 15/22 16/7 16/21

 20/5 22/4 22/20

 24/11 24/20 27/4

 27/16 28/22 29/16

 31/22 33/9 39/1

 39/1 52/24 53/3

 53/6 57/1 57/12

 57/20 58/1 58/19

 58/24 59/5 59/15

 59/19 62/11 63/22

 63/22 64/9 64/19

 66/3 66/20 70/13

 85/20 87/9 87/15

 87/18 88/4 88/11

 88/14 88/19 89/1

 89/5 89/22 90/1

 90/8 91/9 91/13

 91/23 92/1 92/13

 92/14 92/16 93/4

 94/4 95/25 109/8

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cigarettes... [2] 

 132/19 146/19

circle [8] 135/1

 161/15 165/20

 165/25 166/4

 167/15 172/8

 172/24

Circling [2] 27/21

 161/14

circuit [34] 

 144/17 148/3

 148/15 149/9

 152/9 152/12

 159/3 160/9 160/9

 162/6 162/23

 169/14 169/19

 170/1 170/5

 170/17 171/18

 173/4 173/4 173/5

 173/7 173/7 173/9

 173/11 173/15

 173/16 173/17

 173/17 174/20

 174/24 174/24

 175/5 175/8

 177/18

Circuits [1] 

 173/18

circulation [1] 

 69/20

circumstance [6] 

 40/8 151/10 157/9

 173/6 176/10

 176/11

circumstances [4]

 34/19 150/2

 152/13 155/19

citation [1] 

 173/25

citations [2] 

 10/11 52/9

cite [6] 148/10

 160/15 173/23

 177/9 177/13

 181/1

cited [7] 151/18

 152/12 161/25

 166/8 169/24

 170/18 173/10

cities [1] 63/2

citing [1] 148/14

civil [1] 11/1

claim [4] 173/5

 174/22 175/4

 175/6

claims [1] 179/11

clarification [1] 

 124/4

clarified [1] 175/3

clarify [3] 65/13

 110/25 141/2

clarifying [1] 

 110/25

class [4] 132/19

 135/22 137/17

 165/5

classified [2] 

 38/17 100/22

classify [5] 99/2

 100/21 101/7

 102/19 104/25

clear [4] 14/20

 46/8 52/12 54/3

clerk [4] 77/24

 181/9 181/9

 181/11

clerkship [1] 

 13/23

click [1] 115/4

client [48] 5/10

 6/6 6/15 6/18 8/11

 9/2 9/11 14/4

 78/16 113/21

 113/22 113/24

 114/6 114/14

 114/21 116/14

 131/11 133/4

 136/22 136/23

 137/15 138/9

 139/18 141/8

 141/9 141/19

 141/19 142/2

 143/10 143/14

 143/15 143/18

 143/19 147/8

 147/21 159/25

 161/6 161/7

 161/13 164/25

 165/3 169/15

 178/17 178/21

 179/10 179/12

 179/15 179/23

client's [21] 34/7

 47/5 113/14

 115/24 134/23

 135/11 136/5

 136/13 137/13

 141/6 142/20

 144/23 160/20

 162/18 163/2

 164/21 165/21

 168/8 178/25

 179/1 179/21

clients [14] 11/3

 13/25 14/6 14/14

 14/16 14/22 17/6

 151/21 155/9

 162/9 163/5

 166/12 169/10

 176/12

close [1] 150/18

closed [7] 25/22

 25/24 58/12 58/14

 58/18 59/1 64/2

cloud [2] 174/6

 174/13

club [1] 149/11

clue [1] 50/22

CM [2] 124/8

 181/14

CM/ECF [2] 124/8

 181/14

CO [1] 1/7

coextensive [2] 

 51/21 165/9

cofounder [1] 

 85/11

coin [1] 151/25

coined [1] 162/20

Colombia [1] 

 13/20

column [2] 70/17

 70/18

combustible [1] 

 92/16

comfortable [1] 

 8/15

comment [1] 4/17

commentary [1] 

 19/20

commerce [1] 

 132/21

commercial [6] 

 10/3 10/23 162/24

 162/25 163/10

 163/22

commercially [3] 

 18/15 25/15 28/4

commission [1] 

 163/15

commissioner [2]

 23/10 23/14

committee [2] 

 16/25 17/1

committees [1] 

 16/20

common [3] 

 17/17 46/4 90/4

commonly [2] 

 49/5 133/14

compact [1] 

 134/17

companies [19] 

 14/8 14/12 14/19

 14/21 14/25 17/13

 18/4 19/22 20/14

 40/5 47/2 74/2

 75/21 122/4 139/2

 139/23 142/20

 153/5 156/15

company [34] 3/6

 21/18 29/22 30/14

 32/21 48/9 55/20

 66/12 66/25 67/1

 67/8 69/22 74/7

 75/24 78/12 78/23

 78/25 80/4 81/1

 82/10 94/14

 101/19 105/1

 108/24 110/1

 110/6 113/7

 113/14 114/9

 121/17 128/21

 129/9 155/4

 156/11

company's [10] 

 17/18 47/13 67/10

 68/2 70/9 96/21

 97/14 105/24

 107/23 123/3

comparable [1] 

 118/24

compare [3] 

 24/18 94/3 119/11

compared [3] 

 65/23 113/7

 178/24

compares [1] 

 65/24

comparison [1] 

 24/4

compartmentalize

 [1] 144/12

competitive [3] 

 66/21 67/11 127/6

competitively [1] 

 7/19

competitor [1] 

 62/1

competitors [4] 

 21/19 61/22 66/22

 66/23

compilation [3] 

 68/6 96/20 128/1

complaint [1] 

 109/20

complex [2] 

 146/19 176/18

compliance [7] 

 30/8 30/9 30/17

 39/17 39/20 41/4

 53/16

compliant [1] 

 39/13

comply [2] 14/25

 21/19

component [7] 

 19/7 19/10 19/13

 28/18 28/24 29/5

 52/13

components [8] 

 19/3 19/9 19/19

 28/15 29/7 29/8

 38/18 64/1

compound [1] 

 78/18

computer [2] 

 41/12 131/21

concealer [7] 

 60/5 89/14 89/22

 100/10 122/23

 128/25 130/3

conceding [1] 

 159/19

concept [2] 22/3

 26/13

conceptual [3] 

 162/19 162/24

 163/21

concern [5] 11/5

 73/13 75/7 174/3

 179/21

concerns [7] 4/12

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concerns... [6] 

 66/14 66/18 72/15

 103/2 124/16

 171/22

conclude [1] 

 178/6

concluded [3] 

 20/10 30/1 30/2

concluding [1] 

 111/19

conclusion [2] 

 124/7 177/5

conclusions [3] 

 29/25 131/24

 180/8

conclusive [2] 

 162/4 163/23

concrete [2] 

 87/11 168/20

conditions [1] 

 165/9

conduct [4] 17/18

 147/25 148/1

 148/1

conducted [1] 

 113/7

conducts [2] 

 110/1 156/12

confer [1] 69/5

conference [2] 

 17/1 84/10

conferences [3] 

 16/14 16/17 53/13

confidential [4] 

 7/18 8/1 8/12

 66/25

confidentiality [3]

 4/13 4/19 7/2

confused [2] 

 80/24 141/6

confusion [33] 

 6/8 63/14 91/22

 91/25 92/4 92/7

 92/10 113/6 113/8

 132/9 133/21

 138/17 141/1

 141/3 141/11

 150/15 154/6

 157/17 158/3

 165/8 165/17

 166/24 167/6

 170/7 170/10

 170/11 170/11

 170/21 170/21

 172/7 172/15

 180/1 180/4

Congress [3] 

 20/3 20/5 176/6

connect [1] 

 117/10

connection [5] 

 41/12 107/16

 107/17 117/9

 133/9

connections [1] 

 169/4

connivence [1] 

 168/18

connotes [1] 

 134/17

conscious [1] 8/5

consent [1] 47/2

consequence [1] 

 170/16

conservative [1] 

 152/8

consideration [2] 

 6/9 132/1

consistent [3] 7/4

 51/4 62/20

constantly [1] 

 91/15

constituents [3] 

 99/14 103/19

 103/19

construction [1] 

 21/8

consumable [6] 

 25/24 26/1 26/14

 33/12 36/14 43/21

consume [4] 

 19/24 39/9 104/21

 104/23

consumed [1] 

 93/2

consumer [26] 

 26/4 26/15 26/16

 33/11 35/7 36/10

 36/14 62/13 65/16

 65/17 72/10 78/7

 82/22 83/1 92/12

 92/14 94/4 95/7

 102/5 113/6 155/2

 155/17 155/18

 157/2 170/11

 180/4

consumers [15] 

 36/11 36/12 38/11

 40/9 57/21 64/10

 80/20 91/25 92/2

 92/5 92/18 136/18

 155/22 156/1

 164/16

consummated [1]

 170/15

consumption [5] 

 19/3 19/12 29/11

 38/20 38/23

contain [11] 19/6

 19/10 19/23 20/11

 20/15 26/3 28/6

 31/3 31/9 38/15

 165/24

containing [3] 

 26/1 28/17 135/9

contains [3] 

 15/11 25/24 49/10

contemplated [1] 

 155/19

content [1] 6/21

contents [2] 10/7

 29/24

context [2] 10/12

 30/16

contexts [1] 22/5

continuation [1] 

 3/22

continuing [1] 

 101/15

contract [1] 130/5

control [5] 18/23

 28/1 39/17 40/25

 102/11

convenience [13] 

 61/14 65/10 87/22

 88/23 89/2 90/18

 90/20 94/9 95/6

 95/11 126/1

 127/11 135/20

convenient [1] 

 64/3

conventional [1] 

 181/16

conventionally [1]

 181/10

convince [2] 

 146/12 146/15

convinced [1] 

 174/9

copyright [1] 

 144/7

corner [1] 48/13

corporate [4] 7/8

 121/4 126/9 130/8

corrective [3] 

 30/9 30/14 30/17

correlates [1] 

 49/15

corresponds [2] 

 47/24 49/13

Cosmetic [12] 

 17/22 18/2 21/25

 38/1 40/23 46/2

 46/15 46/22

 174/12 176/4

 176/7 176/22

counter [1] 81/22

counterfeit [26] 

 71/9 72/16 75/5

 75/8 75/9 98/23

 98/25 99/19 102/8

 102/23 103/16

 103/25 109/2

 112/9 112/16

 112/21 112/22

 112/23 147/19

 147/20 155/16

 155/24 171/22

 179/2 179/4 179/7

counterfeit-type

 [1] 99/19

counterfeiter [1] 

 113/2

counterfeiters [2] 

 157/6 179/16

counterfeiting [3] 

 73/9 81/14 179/11

counterfeits [18] 

 71/3 71/5 72/13

 72/17 72/19 80/24

 81/3 81/5 81/24

 94/19 99/8 100/4

 102/17 111/18

 112/3 138/1

 179/13 179/23

countries [6] 53/4

 53/7 139/13

 139/16 139/17

 161/5

country [12] 

 60/22 85/17 92/11

 126/19 127/4

 127/11 139/5

 139/5 139/22

 140/4 152/17

 152/20

court [66] 1/2 2/1

 2/2 2/21 3/5 5/1

 8/6 8/7 10/11 12/1

 12/7 13/6 14/5

 17/25 21/2 21/5

 21/13 21/21 23/15

 27/22 45/25 46/4

 46/5 46/11 47/4

 52/12 56/5 56/12

 71/23 89/9 94/21

 96/5 101/4 108/23

 110/19 110/23

 112/6 131/13

 139/8 144/12

 148/12 148/22

 149/8 149/15

 152/18 153/24

 154/1 157/10

 158/4 158/19

 161/11 170/2

 171/4 173/21

 174/3 174/4 174/9

 176/12 177/9

 177/15 177/16

 177/17 177/18

 181/25 182/9

 182/10

court's [11] 9/24

 29/14 34/19 55/14

 69/23 79/18 95/13

 130/14 148/5

 148/11 156/17

courtroom [4] 

 3/13 4/14 7/25

 8/17

courts [4] 148/4

 152/8 159/2

 175/18

covered [4] 14/4

 17/11 120/20

 134/23

covers [2] 14/7

 134/24

Craft [1] 177/13

CRC [2] 2/1 182/9

CRD [1] 125/12

create [3] 8/7

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create... [2] 66/22

 173/17

created [6] 68/3

 96/21 147/20

 147/22 174/6

 174/13

creates [1] 137/4

credible [1] 

 147/15

cross [14] 2/11

 2/15 2/18 2/23

 5/10 41/10 42/1

 72/24 73/1 104/6

 104/8 123/5

 127/17 129/18

cross-examinatio

n [10] 2/11 2/15

 2/18 2/23 41/10

 42/1 72/24 73/1

 104/8 129/18

cross-examine [1]

 5/10

crowded [4] 

 128/14 128/16

 129/7 129/8

CROWLEY [1] 

 1/23

CRR [2] 2/1 182/9

Cuba [2] 44/2

 44/3

cumulative [1] 

 129/25

curious [1] 

 124/21

customer [8] 

 63/13 63/16 76/1

 91/21 101/17

 101/20 151/24

 154/13

customers [14] 

 62/10 87/6 91/12

 101/13 119/19

 127/8 128/7 128/7

 128/9 128/10

 154/24 168/2

 168/8 168/16

customs [3] 

 100/24 101/1

 110/17

cut [1] 164/10

cv [2] 1/3 3/5

D

D.C [2] 1/22 21/2

D1 [2] 31/14

 31/18

D16 [3] 34/21

 34/25 35/4

D17 [1] 35/13

D19 [3] 11/23

 12/5 112/24

D2 [1] 26/19

D21 [9] 7/7 67/22

 68/11 68/22 69/10

 69/17 151/16

 154/10 172/20

D22 [5] 7/7 96/20

 151/16 154/10

 172/21

D5 [1] 45/18

D6 [5] 32/3 32/20

 35/2 37/4 37/23

Daffy [1] 173/10

daily [1] 65/22

damages [2] 

 148/18 148/21

Dan's [1] 173/10

dangers [1] 46/19

data [6] 66/22

 96/20 105/13

 111/5 111/8 151/3

database [2] 

 47/10 47/11

day's [1] 151/12

de [1] 153/18

deadline [5] 

 23/10 23/13 23/16

 32/1 180/20

dealt [1] 167/4

December 16th

 [1] 180/21

deceptive [1] 

 145/21

decided [5] 22/18

 27/2 27/3 148/9

 177/23

decision [8] 

 23/15 31/24 34/20

 143/1 151/19

 162/8 170/4

 170/12

decisions [1] 

 173/9

declaration [1] 

 6/7

declare [1] 177/1

decline [1] 

 122/23

declined [2] 

 172/4 173/21

decreased [1] 

 71/1

decree [1] 47/2

dedicated [1] 

 16/13

deem [1] 20/6

deeming [11] 

 19/18 19/25 21/1

 22/12 22/18 22/24

 26/25 28/23 29/8

 39/11 52/6

default [2] 27/19

 27/20

defendant [13] 

 5/8 34/12 34/20

 54/20 60/4 120/22

 137/12 140/19

 143/9 143/10

 145/5 169/10

 179/9

defendant's [4] 

 29/18 115/10

 124/4 149/10

defendants [38] 

 1/11 1/19 3/18

 4/15 7/8 8/15

 11/12 12/11

 109/15 131/23

 132/15 133/4

 133/9 136/15

 137/9 137/15

 138/11 139/4

 143/20 147/21

 147/22 148/20

 148/25 149/1

 149/5 149/11

 150/23 152/21

 161/3 171/7

 171/11 171/16

 171/23 172/9

 176/12 178/24

 179/3 179/12

Defendants' [44] 

 4/12 6/7 6/22 6/24

 11/14 15/2 15/5

 15/15 30/11 31/14

 32/3 32/9 33/13

 33/25 35/24 36/16

 36/22 36/23 42/25

 43/3 43/24 44/17

 47/6 47/24 48/11

 67/15 69/14 69/25

 70/4 96/4 96/25

 97/2 97/4 97/8

 104/2 132/7 133/3

 133/8 133/14

 133/19 137/19

 142/9 144/23

 166/25

defense [34] 5/12

 12/3 12/5 12/20

 15/7 15/18 15/19

 32/14 33/18 34/12

 34/14 34/23 35/17

 36/1 36/3 37/1

 37/13 37/14 54/5

 54/7 54/11 67/24

 70/2 82/3 84/19

 84/22 95/20 96/9

 97/6 104/4 144/2

 144/5 144/13

 145/7

defensive [1] 

 177/1

deferred [5] 22/3

 22/19 25/4 25/7

 25/14

deficiency [1] 

 71/8

defined [7] 18/9

 19/8 20/4 20/7

 27/3 27/12 29/8

definition [14] 

 9/21 18/10 18/22

 18/25 20/20 28/19

 29/6 29/9 35/11

 37/21 38/3 39/10

 40/11 52/16

definitions [1] 

 52/15

definitively [4] 

 89/3 102/2 121/20

 174/11

delivery [6] 24/22

 42/17 43/12 43/15

 80/13 80/22

Delta [2] 92/21

 92/23

demand [56] 

 59/18 72/10 85/8

 85/9 85/10 85/12

 85/14 85/16 85/22

 85/25 86/21 87/2

 87/6 87/8 88/10

 89/4 91/15 96/22

 97/22 97/24 98/6

 98/9 99/21 99/23

 99/24 100/1 101/4

 101/15 101/23

 102/5 102/10

 102/24 105/1

 105/2 107/22

 111/10 111/10

 111/14 112/7

 114/5 114/23

 115/2 117/23

 118/19 119/7

 119/20 119/25

 120/5 123/13

 123/15 135/13

 137/22 155/2

 155/17 155/18

 157/2

demanding [1] 

 155/22

demonstrate [1] 

 35/1

demonstrated [5] 

 142/8 142/8 142/9

 142/11 149/24

demonstratively

 [1] 111/7

denied [2] 160/20

 161/19

denote [1] 134/21

denying [1] 160/2

Department [7] 

 17/19 46/20 46/20

 46/23 47/1 47/3

 176/8

depend [4] 40/13

 40/17 101/20

 145/10

dependent [1] 

 25/8

depending [4] 

 65/22 93/2 144/24

 153/25

depends [7] 

 56/18 56/19 65/25

 66/5 66/6 74/8

 145/10

depict [1] 35/6

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depicted [9] 33/7

 34/17 36/9 37/3

 45/10 47/18 48/2

 48/3 48/20

depicting [1] 

 36/25

depleted [2] 

 26/14 26/16

deposition [3] 

 42/4 42/6 42/20

Deputy [1] 3/4

deregistered [1] 

 130/8

derivatives [1] 

 19/11

derived [5] 19/1

 38/16 92/24 92/25

 96/17

description [1] 

 14/5

descriptions [1] 

 137/18

descriptive [1] 

 134/6

descriptor [1] 

 82/7

design [1] 33/3

desist [1] 87/25

despite [4] 49/19

 50/3 108/23

 120/10

detail [1] 180/25

detergent [1] 

 140/4

determination [6] 

 20/22 21/13

 100/23 112/6

 145/22 166/19

determinative [3] 

 160/16 169/20

 169/21

determined [1] 

 20/19

detrimental [3] 

 101/7 103/5 153/4

developed [1] 

 152/17

developing [1] 

 169/16

device [11] 31/8

 31/9 33/12 71/12

 94/12 108/9 115/3

 115/5 115/9

 116/25 141/17

devices [16] 

 31/10 31/11 31/22

 43/20 43/22 56/22

 71/9 78/16 79/9

 93/15 115/3 115/5

 116/1 117/14

 119/9 119/14

devoted [1] 

 136/11

diane [4] 2/1 2/4

 182/8 182/9

difference [5] 

 25/21 26/6 63/21

 135/16 165/22

differences [1] 

 24/7

differentiate [1] 

 164/16

difficult [3] 30/25

 153/14 156/18

diligence [1] 

 98/14

direct [16] 2/10

 2/14 2/17 2/22

 13/4 32/22 54/18

 56/11 85/5 105/23

 109/25 111/9

 113/5 123/5

 127/20 172/12

direction [1] 

 155/6

director [1] 53/14

disagree [2] 

 157/3 176/24

disagreement [2] 

 135/6 135/7

disclosed [2] 

 7/19 67/12

disconnect [2] 

 172/17 172/22

discount [3] 

 153/20 154/9

 157/10

discovery [2] 

 109/10 174/10

discrete [1] 52/2

discretion [8] 

 22/11 25/5 25/14

 145/11 148/3

 148/5 148/13

 152/18

discussion [3] 

 69/7 114/3 138/19

discussions [1] 

 8/18

dismissed [1] 

 175/7

display [1] 178/18

displayed [1] 

 126/24

disposable [39] 

 26/8 26/11 26/13

 27/15 27/18 58/9

 58/14 58/18 59/1

 63/21 64/8 64/12

 64/12 64/22 64/24

 65/1 65/4 65/8

 65/10 65/12 65/15

 65/20 66/1 72/11

 80/12 80/22 82/18

 93/4 93/6 93/25

 95/19 95/23 95/25

 107/6 108/9 122/8

 135/10 136/2

 168/6

disposables [6] 

 61/4 64/19 94/3

 94/9 95/5 95/10

dispose [1] 65/11

disposes [1] 

 26/15

disposition [1] 

 20/18

dispositive [4] 

 137/6 160/12

 160/15 166/11

dispute [15] 

 52/10 132/13

 133/8 133/20

 135/3 136/14

 153/14 153/24

 159/22 159/23

 159/25 160/4

 162/19 165/3

 168/1

disputing [2] 50/8

 145/14

disrespectfully

 [1] 176/23

dissect [1] 166/9

dissimilar [1] 

 165/19

dissimilarity [3] 

 166/7 168/1

 168/16

distinction [1] 

 175/25

distribute [8] 

 61/9 85/17 87/23

 100/18 128/11

 132/16 136/16

 153/6

distributed [4] 

 51/13 83/2 114/9

 133/5

distributers [2] 

 87/9 150/24

distributes [1] 

 108/24

distributing [2] 

 57/12 88/10

distribution [12] 

 1/8 1/9 55/21 56/6

 56/17 63/3 74/4

 74/4 75/24 86/5

 87/14 156/1

distributor [13] 

 55/5 56/10 56/19

 56/19 73/21 74/5

 74/6 74/10 74/17

 80/7 87/19 87/20

 101/23

distributors [27] 

 56/9 56/9 61/21

 74/5 74/6 74/11

 74/12 74/19 75/14

 75/14 91/5 126/9

 127/2 127/3 127/3

 127/4 127/9 128/8

 128/9 128/11

 128/17 135/21

 141/6 146/22

 146/23 151/8

 154/23

distributors' [2] 

 62/2 91/10

district [22] 1/2

 1/2 1/13 2/2 10/11

 10/14 10/15 10/17

 10/19 10/20 13/19

 21/2 21/5 131/13

 148/5 170/2

 173/21 173/22

 175/17 177/10

 177/14 182/10

diverted [1] 112/8

DIVISION [1] 1/3

docket [3] 5/16

 6/23 11/1

doctrine [2] 158/7

 174/25

document [2] 

 29/20 68/13

DOJ [1] 47/15

dollar [1] 107/1

dollars [7] 28/3

 105/5 106/3 151/4

 171/9 171/10

 171/12

domain [1] 48/25

double [1] 119/15

doubled [1] 59/20

doubt [2] 102/2

 149/25

doubtful [1] 

 143/24

Dr [1] 1/24

drastically [1] 

 119/4

draw [2] 10/10

 141/13

drill [1] 14/13

drop [1] 172/13

dropped [1] 

 175/2

drug [20] 14/9

 16/11 16/12 16/14

 16/23 16/23 17/22

 18/1 18/1 21/24

 38/1 40/23 46/2

 46/15 46/22 53/13

 174/12 176/4

 176/7 176/22

duration [1] 

 149/3

dwindled [1] 

 142/23

dynamic [1] 

 153/7

E

E-Cig [2] 29/22

 30/14

e-cigarette [11] 

 14/21 26/13 58/9

 61/2 65/7 78/16

 78/16 78/23 94/1

 94/12 156/25

e-cigarettes [7] 

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e-cigarettes... [7] 

 22/20 24/20 39/1

 87/18 95/25 109/8

 146/19

e-juice [3] 49/3

 49/5 49/9

E-L-F [1] 178/11

e-liquid [11] 

 28/16 35/8 49/6

 49/9 65/11 65/18

 66/1 99/14 103/20

 117/13 117/20

e-liquids [4] 

 56/21 61/3 64/1

 93/19

earliest [1] 

 172/10

early [2] 27/2

 163/17

earmarked [1] 5/5

earned [1] 105/2

ease [1] 94/2

easier [2] 95/7

 181/22

easy [3] 64/2 64/4

 94/6

Ebling [2] 5/19

 5/24

ECF [2] 124/8

 181/14

echo [1] 150/17

ECTO [2] 1/8 85/8

edge [1] 146/10

educational [1] 

 13/12

effect [4] 21/23

 81/16 122/21

 122/22

effective [2] 

 22/12 22/24

effectively [9] 

 7/17 19/22 23/23

 24/4 33/12 35/11

 135/15 143/20

 173/17

efficient [1] 93/24

efforts [1] 132/23

eight [1] 150/23

elaborate [2] 

 22/21 73/20

electron [1] 90/19

electronic [97] 

 14/14 14/17 15/22

 16/7 16/21 17/7

 22/4 23/10 24/11

 24/13 25/3 25/15

 25/20 25/22 25/23

 26/7 26/8 27/4

 27/8 27/16 27/24

 28/15 28/21 31/16

 31/22 33/9 35/20

 37/18 39/1 39/3

 42/17 43/11 43/15

 52/24 53/3 53/6

 55/11 55/15 55/18

 55/24 56/2 56/6

 56/22 57/1 57/12

 57/20 58/1 58/13

 58/19 58/24 59/5

 59/6 59/14 59/18

 60/5 60/20 61/14

 61/18 61/23 62/11

 63/12 63/21 63/22

 64/8 64/19 66/20

 70/13 72/11 80/12

 85/19 86/9 86/13

 86/20 87/9 87/14

 88/3 88/11 88/14

 88/19 89/1 89/5

 89/14 89/21 89/25

 90/8 90/12 90/22

 91/9 91/13 91/22

 92/1 92/12 92/14

 93/4 94/4 132/19

 132/20

electronics [2] 

 61/4 93/22

Eleventh [15] 

 144/17 148/3

 159/3 160/9

 162/23 169/14

 169/19 170/1

 170/5 170/17

 171/18 173/5

 173/6 173/16

 174/24

ELF [76] 1/8 7/10

 38/7 38/13 39/13

 40/22 43/1 57/2

 60/5 62/7 62/11

 63/15 63/16 71/14

 71/14 71/17 71/19

 79/10 79/13 88/4

 89/14 90/9 91/2

 91/8 91/13 91/17

 91/22 92/1 92/9

 98/19 100/10

 111/25 113/8

 113/10 114/14

 115/24 122/23

 124/17 124/17

 125/25 128/6

 128/18 129/22

 130/3 130/11

 132/14 132/18

 133/4 133/9

 133/14 133/15

 134/7 134/15

 134/15 134/16

 134/16 134/23

 134/24 135/1

 135/2 141/7

 141/17 157/23

 164/5 164/6 165/4

 165/20 166/1

 166/10 166/13

 167/17 167/23

 174/16 178/11

 178/13 178/18

ELFBAR [140] 

 44/17 57/12 57/20

 58/1 58/6 58/16

 58/20 58/24 59/8

 59/9 59/14 59/18

 60/9 60/11 60/15

 63/14 63/17 63/18

 64/8 67/23 68/14

 68/15 68/17 68/18

 70/5 70/13 70/19

 71/1 71/24 72/11

 73/9 73/10 74/9

 74/11 74/12 75/4

 78/17 78/24 79/1

 80/9 80/13 80/16

 80/20 80/23 81/1

 82/19 82/22 83/2

 88/1 88/11 88/14

 88/18 89/5 89/21

 90/7 91/23 92/1

 92/10 93/4 96/8

 96/15 97/22 98/7

 98/13 98/20 99/15

 99/16 99/17 99/21

 100/3 101/5

 101/14 101/15

 101/24 102/20

 104/24 104/25

 105/23 106/13

 107/7 107/25

 108/5 108/7

 108/11 108/16

 108/20 108/25

 109/1 110/14

 111/2 111/13

 112/7 112/15

 112/22 113/8

 115/13 118/14

 118/17 118/19

 118/21 118/24

 119/5 119/16

 119/19 119/21

 119/25 120/5

 120/9 121/23

 122/24 123/3

 123/13 127/1

 127/9 133/10

 133/11 134/23

 135/3 135/10

 135/16 136/5

 136/12 136/22

 137/23 137/25

 141/8 141/15

 141/20 142/24

 147/1 147/18

 157/24 166/10

 166/13 167/16

 167/18 170/15

 172/16 172/20

 179/7

ELFBARs [3] 

 79/4 109/2 179/4

ELFs [1] 164/20

elicit [3] 5/17 9/3

 9/19

Elmo [2] 77/25

 79/15

embarrassed [3] 

 125/2 126/15

 172/2

emergency [1] 

 177/18

employee [1] 

 96/6

employees [26] 

 50/21 50/22 51/3

 51/5 55/6 59/17

 59/21 59/25 60/9

 67/1 71/25 72/2

 72/3 72/5 72/6

 79/3 79/7 85/22

 101/8 101/10

 101/11 118/14

 118/18 118/19

 153/10 171/14

empowered [1] 

 165/15

empty [3] 35/6

 36/12 135/18

end-run [1] 

 175/20

endeavor [1] 

 181/1

ENDS, [1] 42/7

ENDS, E-N-D-S

 [1] 42/7

energy [1] 101/18

enforce [7] 21/24

 22/6 46/15 51/24

 52/4 173/2 176/7

enforceable [1] 

 173/1

enforcement [44] 

 17/1 17/8 17/12

 17/15 17/19 20/9

 20/18 20/19 20/23

 21/12 21/16 22/3

 22/11 22/19 25/5

 25/8 25/14 25/18

 26/24 27/4 27/10

 27/19 27/20 29/15

 37/24 38/2 38/3

 39/14 45/15 45/16

 45/21 45/23 46/1

 46/24 47/7 47/8

 47/12 51/22 52/1

 53/10 53/16 53/19

 145/11 157/3

enforcing [1] 

 52/5

engage [1] 50/23

engaged [1] 

 145/6

engagements [2] 

 15/10 15/12

engaging [1] 

 175/18

English [4] 50/6

 52/24 53/4 53/7

enhance [1] 

 137/3

enjoin [2] 71/23

 101/4

enjoined [2] 

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enjoined... [2] 

 101/15 152/22

enjoining [4] 

 109/1 152/8

 179/14 179/14

enjoyed [1] 

 181/24

enter [3] 70/25

 98/19 139/24

entertain [1] 9/22

entirety [2] 167/3

 167/22

entities [1] 

 156/11

entitled [5] 8/14

 25/5 25/14 132/24

 182/7

entry [2] 6/23

 174/17

EPA [1] 174/1

equitable [1] 

 148/1

equivalence [8] 

 23/22 24/3 24/3

 24/12 24/12 25/1

 25/2 25/11

equivocally [1] 

 102/3

ERIC [2] 1/19

 3/17

ERP [1] 97/14

error [2] 152/14

 169/22

especially [7] 

 46/19 95/7 103/6

 138/24 155/15

 171/2 171/25

ESQ [9] 1/15 1/15

 1/16 1/19 1/19

 1/20 1/20 1/21

 1/23

essentially [5] 

 117/17 152/13

 156/23 168/9

 171/6

establish [4] 9/20

 10/7 34/12 34/25

established [1] 

 123/9

establishment [1] 

 17/15

estimate [10] 

 27/23 58/15 59/13

 62/1 64/13 90/21

 90/24 105/18

 106/2 137/23

estimated [1] 

 83/18

estimating [1] 

 106/24

estimation [7] 

 9/24 37/25 38/23

 58/6 58/20 59/6

 87/5

et [6] 3/7 52/14

 95/2 156/3 171/15

 174/11

et al [1] 3/7

et cetera [1] 

 174/11

Europe [1] 140/2

evade [1] 99/10

evenly [1] 106/8

event [1] 171/5

everybody [1] 

 127/5

everybody's [2] 

 4/3 125/5

everyday [1] 

 95/11

everywhere [1] 

 139/14

evidence [54] 4/2

 11/24 12/5 15/7

 15/19 26/20 29/23

 31/15 32/4 33/14

 33/18 34/23 35/17

 36/3 37/1 37/14

 44/24 66/19 67/24

 70/2 76/21 77/9

 77/20 96/9 97/6

 104/3 104/4

 115/21 117/2

 118/7 118/12

 121/10 127/24

 129/23 130/22

 133/1 141/1 141/5

 141/11 145/2

 148/17 148/20

 150/19 151/5

 152/13 159/9

 161/12 163/7

 163/12 163/23

 168/4 169/6 169/7

 174/13

evidenced [2] 

 30/24 41/6

evident [1] 4/1

evidentiary [1] 

 148/22

evidently [2] 

 36/11 38/11

evolution [2] 

 93/11 93/15

evolved [1] 90/3

exaggerated [1] 

 153/2

examination [26] 

 2/10 2/11 2/12

 2/14 2/15 2/17

 2/18 2/19 2/21

 2/22 2/23 13/4

 41/10 42/1 52/21

 54/18 72/24 73/1

 85/5 104/8 122/15

 125/23 127/20

 129/18 162/13

 172/12

examine [2] 5/10

 166/12

examiner [1] 

 137/11

examining [2] 

 160/11 170/4

examples [9] 

 15/24 16/9 17/11

 52/2 111/21 133/3

 133/10 168/19

 168/20

exceed [1] 106/25

Excellent [1] 3/21

exception [2] 

 24/12 139/10

exceptionally [1] 

 154/6

exceptions [2] 

 27/15 144/21

exchange [1] 

 170/16

exclusive [2] 

 51/15 151/20

exculpatory [1] 

 53/19

excuse [2] 134/4

 160/23

excused [4] 54/4

 83/13 123/22

 130/20

Executive [1] 

 1/24

exemption [1] 

 24/3

exercise [1] 

 142/16

exhaustive [1] 

 103/19

Exhibit 11 [3] 

 15/6 15/11 141/10

Exhibit 16 [2] 

 33/16 48/2

Exhibit 17 [1] 

 36/17

Exhibit 18 [2] 

 36/24 37/10

Exhibit 19 [1] 

 44/18

Exhibit 2 [1] 

 26/23

Exhibit 21 [3] 

 68/2 70/8 70/12

Exhibit 22 [9] 

 45/10 47/7 96/25

 106/10 106/25

 112/5 119/10

 123/15 137/20

Exhibit 25 [1] 

 82/1

Exhibit 26 [1] 

 115/24

Exhibit 3 [1] 

 137/13

Exhibit 4 [1] 

 178/13

Exhibit 7 [1] 6/25

exist [2] 24/21

 92/5

existence [2] 

 137/12 138/10

exists [1] 152/10

expanding [1] 

 142/4

expectation [3] 

 31/21 39/8 72/9

expediency [1] 

 11/14

expedited [1] 

 109/20

expeditious [1] 

 150/24

expenditures [2] 

 163/6 163/8

expenses [2] 

 97/11 97/12

expensive [2] 

 30/20 30/24

experience [45] 

 14/13 17/6 17/12

 18/8 18/20 24/10

 27/23 27/25 28/14

 28/25 29/15 30/6

 39/2 46/3 52/23

 53/18 55/11 55/24

 56/7 56/23 64/14

 64/17 72/8 75/9

 77/6 86/9 86/11

 86/12 87/13 89/25

 90/7 91/1 91/20

 92/5 92/6 100/2

 100/12 100/15

 100/17 102/3

 110/21 110/24

 111/20 123/2

 123/8

expert [5] 17/2

 144/20 144/25

 156/23 175/23

explanations [1] 

 53/9

explicitly [1] 

 100/15

expressed [1] 

 143/25

extant [2] 132/22

 140/11

extend [1] 22/10

extended [2] 

 23/10 23/17

extensive [2] 

 24/10 51/18

extent [7] 24/20

 88/8 105/11

 107/18 114/11

 134/14 177/2

external [1] 67/3

extra [2] 59/25

 66/23

extraordinary [1] 

 159/4

extrapolate [1] 

 151/9

extrapolating [1] 

 40/3

extraterritorial [1]

 139/9

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extremely [3] 

 129/8 129/8

 173/19

eyes [1] 7/6

F

F-R-I-J-A [1] 

 125/17

F.2d [1] 173/13

F.Supp [1] 146/14

face [1] 132/24

faced [1] 111/22

facets [1] 121/19

facilities [1] 99/7

fact [33] 7/16

 9/20 19/23 20/19

 30/24 39/9 40/14

 40/16 50/3 50/5

 69/22 72/14 78/12

 88/24 102/25

 105/9 108/23

 110/19 119/19

 120/10 130/7

 131/24 141/2

 141/4 143/14

 154/25 159/18

 162/5 169/9

 172/16 174/10

 179/5 180/8

factor [15] 5/23

 95/11 133/8

 133/21 156/7

 157/9 158/18

 159/18 160/16

 160/17 162/17

 163/10 167/23

 168/24 171/2

factors [21] 40/13

 131/16 132/6

 132/9 132/10

 137/8 142/7

 142/10 150/15

 154/5 158/3 159/9

 161/16 162/15

 166/18 166/23

 167/5 167/9 170/7

 170/21 171/17

facts [1] 162/1

factual [3] 124/16

 166/19 177/4

failure [1] 164/24

fall [7] 74/7 74/9

 108/8 114/22

 116/24 135/7

 135/22

falling [1] 172/18

falls [3] 134/7

 135/14 162/19

fanciful [4] 134/3

 134/7 134/11

 134/20

fashion [1] 92/10

faster [1] 98/3

fathom [1] 175/17

fault [1] 179/21

favor [6] 9/14

 142/14 152/8

 162/6 171/16

 179/22

favors [1] 142/15

FDA [119] 14/18

 14/20 15/22 16/7

 16/13 16/21 17/4

 17/8 17/13 17/17

 18/2 18/3 18/5

 18/14 18/18 18/20

 19/8 19/18 20/2

 20/6 20/7 20/9

 20/19 21/3 21/8

 22/4 22/5 22/10

 22/18 23/1 23/5

 23/9 23/24 26/8

 26/21 26/24 27/2

 27/3 27/10 27/17

 28/1 28/2 28/10

 28/14 28/20 28/25

 29/7 29/15 29/21

 29/25 30/2 30/3

 30/4 30/5 30/7

 30/24 31/6 31/10

 31/16 31/19 31/23

 31/23 32/2 32/6

 37/24 38/3 39/10

 39/13 40/1 40/4

 40/11 42/16 43/7

 44/4 44/6 45/10

 45/12 45/20 45/23

 45/24 46/2 46/5

 46/9 46/10 46/16

 46/18 46/23 47/7

 47/8 47/11 47/12

 47/12 48/17 50/10

 50/21 50/22 50/23

 51/5 51/18 51/25

 52/1 52/4 53/9

 53/12 53/15 53/18

 100/13 100/19

 100/25 102/19

 103/23 110/16

 144/20 145/11

 155/18 156/16

 157/1 175/15

 176/8

FDA's [12] 20/22

 21/5 21/13 41/6

 45/11 47/10 50/12

 51/15 145/11

 145/13 145/22

 157/3

feature [1] 133/18

February 15th [3] 

 18/12 18/16 41/3

federal [18] 21/13

 21/21 23/15 23/15

 146/1 159/19

 173/4 173/4 173/7

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 175/8 175/17

 176/22

Fifth [1] 148/15

figure [1] 144/3

figures [1] 171/10

file [7] 21/21 25/2

 25/9 124/8 179/11

 180/8 180/25

filings [1] 181/14

fill [8] 35/7 99/25

 101/24 103/1

 147/12 154/18

 154/20 155/8

filled [13] 36/13

 36/13 65/17 72/12

 111/14 111/18

 112/7 112/17

 117/12 117/14

 135/19 147/1

 147/13

fills [2] 99/24

 111/10

final [3] 32/2

 83/16 163/21

finally [2] 172/24

 179/25

financial [5] 7/7

 66/12 68/3 68/7

 96/21

financially [1] 

 155/9

financials [2] 

 95/19 149/24

finder [1] 105/9

findings [2] 

 131/24 180/8

finished [1] 94/8

finite [1] 157/4

firsthand [1] 

 100/12

fit [3] 56/16 74/3

 143/25

fits [1] 144/5

fittest [1] 143/8

fixed [1] 69/12

FL [2] 2/3 182/11

flavor [6] 43/25

 44/1 44/19 44/21

 44/22 44/23

flavored [5] 27/16

 43/24 45/2 45/2

 145/1

flavors [7] 24/23

 27/8 27/13 43/19

 120/9 143/17

 178/14

flesh [3] 137/24

 138/20 169/3

flip [1] 151/25

flood [1] 81/24

floor [2] 86/18

 156/22

FLORIDA [19] 1/2

 1/6 1/17 1/24

 10/15 55/2 57/7

 57/8 58/2 58/4

 58/15 58/21 59/7

 63/1 170/18

 170/19 173/21

 173/22 181/24

flsd.uscourts.gov

 [1] 2/4

fluctuate [1] 

 147/4

Flum [4] 108/6

 108/10 108/25

 119/6

fly [1] 99/8

focus [2] 14/9

 19/5

focused [1] 131/4

Focusing [1] 

 152/9

follow-up [2] 

 124/25 125/21

font [1] 167/13

food [21] 14/9

 16/11 16/12 16/14

 16/22 16/23 17/22

 18/1 18/1 21/24

 38/1 40/22 46/2

 46/15 46/21 53/13

 173/24 174/12

 176/4 176/7

 176/22

fooled [1] 75/15

footnote [2] 

 27/17 175/2

forced [2] 79/2

 146/17

foreclose [1] 

 174/17

foregoing [1] 

 182/5

foreign [2] 160/19

 161/1

forgive [1] 73/5

form [4] 38/12

 87/18 100/22

 135/12

formal [1] 14/19

formulated [1] 

 40/3

FORT [4] 1/3 1/6

 2/3 182/11

Forty [1] 87/4

Forty-nine [1] 

 87/4

forums [1] 16/9

foundation [5] 

 5/17 7/15 77/14

 81/6 120/12

foundational [1] 

 66/13

founded [2] 55/9

 85/25

founding [1] 

 55/12

fours [2] 162/1

 162/5

fourth [2] 35/5

 37/17

framework [1] 

 144/1

franchise [1] 

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franchise... [1] 

 148/24

frankly [5] 152/3

 152/8 152/21

 154/2 154/3

free [1] 137/4

frequently [6] 

 16/14 16/17 60/19

 60/24 61/14 90/12

Friday [1] 168/17

friend [1] 170/14

FRIJA [16] 2/20

 3/13 11/10 11/15

 11/21 124/23

 125/2 125/11

 125/14 125/17

 129/20 130/17

 136/8 168/17

 170/13 172/12

Frija's [4] 122/17

 163/1 165/20

 172/1

front [6] 15/1

 29/19 105/17

 107/25 166/6

 169/9

fruit [2] 120/9

 145/1

fulfilled [1] 112/2

function [3] 

 100/21 117/13

 117/16

functions [1] 93/1

fundamentally [1]

 154/15

funds [1] 140/15

G

G-L-A-U-S-E-R [1]

 85/1

G-O-O-D-S [1] 

 54/21

gain [1] 14/18

gained [1] 100/7

gap [1] 95/10

gasoline [1] 

 140/3

gate [1] 163/19

Geek [5] 108/18

 108/24 119/6

 133/12 140/21

general [11] 9/23

 10/23 14/5 27/23

 62/18 66/14 93/3

 110/1 110/24

 111/4 176/3

generate [1] 11/4

generating [1] 

 119/20

generic [1] 134/6

generically [1] 

 49/11

gentleman [2] 

 147/16 168/25

George [1] 13/15

Georgia [2] 10/17

 10/20

gets [4] 135/18

 145/14 155/13

 173/2

gives [1] 94/25

glance [1] 47/25

GLAUSER [22] 

 2/16 83/15 84/19

 84/22 84/25 85/7

 89/9 96/4 97/9

 104/10 122/17

 123/20 151/23

 154/25 155/3

 155/24 156/2

 156/21 167/17

 168/7 168/22

 178/25

Gold [2] 148/9

 149/8

goods [28] 1/8

 54/21 54/21 54/22

 54/24 55/1 55/6

 55/9 55/12 55/22

 56/3 56/16 57/11

 59/9 60/3 60/19

 64/18 70/15 71/23

 78/7 78/8 135/5

 135/7 135/8

 135/15 135/24

 143/5 168/1

Goods' [5] 55/3

 58/23 59/13 68/4

 70/5

goodwill [9] 6/17

 151/24 154/13

 160/24 161/1

 161/6 169/18

 171/13 171/14

Google [1] 179/6

Gotcha [1] 

 162/14

gotten [3] 15/2

 153/11 163/12

Gottlieb's [1] 

 23/15

Government [1] 

 99/10

grand [4] 96/13

 96/14 106/11

 142/21

grandfathered [3] 

 18/18 24/5 24/19

grant [2] 6/22

 177/16

granted [2] 31/2

 163/16

granting [1] 

 179/22

grapple [1] 

 156/18

gravitated [1] 

 94/11

Gray [1] 173/10

great [9] 11/17

 52/9 78/12 79/16

 126/13 143/13

 164/11 178/5

 181/17

greatest [2] 

 143/11 143/12

gross [11] 67/23

 70/9 70/12 70/15

 96/7 97/10 97/11

 97/18 106/5 106/9

 147/5

ground [3] 63/5

 86/18 156/22

grounds [2] 

 77/17 162/12

grow [3] 62/24

 139/24 155/25

growing [3] 60/16

 88/16 152/20

growth [1] 153/11

guidance [3] 22/6

 26/22 28/1

H

HAITHAM [4] 2/13

 54/7 54/11 54/14

halfway [1] 32/23

Hamilton [1] 13/9

handle [3] 59/18

 90/18 181/6

handled [2] 14/6

 139/3

hardware [3] 61/3

 64/6 106/6

Hardy [1] 115/5

harm [12] 105/10

 109/3 110/14

 150/14 152/1

 155/9 156/3 171/4

 171/6 171/16

 171/23 171/25

harmful [10] 7/19

 67/10 72/20 99/13

 99/13 103/18

 103/18 103/21

 156/13 156/15

harms [4] 154/11

 157/14 171/2

 171/23

HAYNES [18] 2/9

 12/12 12/20 12/23

 13/6 13/7 13/8

 15/21 26/19 31/14

 32/23 34/25 36/5

 40/21 42/3 52/23

 53/24 54/2

hazards [1] 72/18

HDMI [1] 107/17

health [10] 24/9

 46/19 72/18 73/16

 103/2 103/5

 155/23 156/8

 157/8 171/21

hearing [23] 1/12

 3/23 4/1 4/4 4/5

 4/21 5/5 8/9 8/18

 10/1 76/16 89/17

 113/16 124/7

 124/8 148/22

 150/19 156/14

 177/6 178/6

 178/16 180/8

 181/23

hearsay [1] 

 120/12

heart [1] 158/17

heavily [2] 71/10

 79/6

heavy [2] 103/12

 179/19

helpful [3] 8/17

 54/3 146/24

here -- is [1] 29/9

here where [1] 

 162/2

hereby [1] 182/5

Hetherington [2] 

 1/23 3/20

HEYER [23] 1/19

 2/10 2/14 2/17

 2/19 2/23 3/17

 10/6 11/18 12/10

 44/12 84/18

 123/23 127/16

 129/16 150/10

 158/25 159/11

 170/24 177/7

 180/10 180/17

 181/18

higher [5] 98/3

 99/14 149/1 155/5

 162/12

highest [1] 119/9

highly [5] 7/18

 24/24 92/6 155/16

 165/19

Highway [2] 2/2

 182/10

Hine [2] 1/21 3/18

hire [2] 59/17

 139/2

hiring [1] 60/9

historical [2] 

 111/5 111/8

historically [4] 

 26/8 64/18 93/9

 141/8

history [4] 85/24

 102/3 109/5

 112/12

hit [8] 146/10

 158/20 159/11

 162/17 169/13

 170/9 171/1

 171/14

hits [1] 151/17

hold [4] 81/9

 107/12 110/16

 162/10

holding [4] 43/23

 45/4 115/23

 116/25

home [1] 84/1

honest [1] 103/22

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honestly [1] 95/6

HoneyStick [3] 

 113/23 113/25

 114/6

Honor [130] 3/14

 3/17 4/10 4/22 5/8

 5/14 5/23 6/13

 6/25 7/3 7/15 7/23

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 132/2 132/4 136/7

 146/9 148/8 150/9

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 171/1 172/18

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 177/25 178/10

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 181/8 181/19

 182/2

Honor's [11] 4/14

 6/9 7/5 10/10

 11/11 124/24

 131/13 132/1

 148/2 150/11

 150/18

HONORABLE [1] 

 1/13

hookup [1] 178/9

hope [3] 42/10

 84/17 181/24

hot [1] 147/22

hottest [1] 155/2

hour [4] 83/19

 83/24 83/25 84/2

house [3] 94/17

 103/4 173/12

housekeeping [1] 

 12/6

huge [2] 101/17

 102/22

huh [1] 78/9

human [4] 19/3

 95/2 121/7 153/13

humbled [2] 

 126/14 161/7

hundred [1] 

 106/3

hundreds [1] 

 127/3

Hyde [5] 100/6

 107/5 107/6 108/3

 111/21

I

I-N-D-E-X [1] 2/7

ice [1] 44/22

identical [6] 

 100/21 110/18

 143/5 167/5

 167/12 168/2

identification [4] 

 44/11 44/16 76/13

 116/17

illegal [2] 145/25

 146/1

illegality [4] 

 159/15 173/19

 174/3 177/19

images [1] 

 165/24

immediate [4] 

 27/4 27/10 100/1

 111/24

immediately [2] 

 22/17 27/14

immoral [1] 

 145/21

impact [2] 71/25

 101/6

implement [1] 

 30/9

implicated [1] 

 132/15

implications [1] 

 156/9

implicitly [1] 9/5

import [6] 81/13

 94/15 100/18

 121/23 122/2

 132/16

importation [2] 

 46/6 74/18

imported [1] 

 99/19

impose [1] 

 149/15

imposed [1] 

 151/20

imposition [1] 

 149/14

improper [1] 

 166/9

improperly [1] 

 151/20

inappropriate [1] 

 155/7

INC [6] 1/9 1/10

 10/13 173/12

 173/24 177/13

inclined [2] 9/15

 176/25

increase [2] 71/3

 72/18

increased [4] 

 64/20 64/21 95/4

 154/21

increasing [2] 

 53/10 151/16

indeed [1] 49/19

independent [1] 

 25/18

independently [1]

 98/16

indeterminate [1] 

 177/5

indication [1] 

 83/22

individual [2] 

 86/24 87/1

indulgence [3] 

 95/13 130/14

 150/11

industries [2] 

 10/19 13/25

industry [43] 14/6

 14/14 14/17 16/5

 16/18 17/7 24/11

 26/22 39/2 55/12

 55/15 55/18 55/25

 56/7 60/20 63/7

 63/13 67/11 73/21

 86/10 86/13 86/18

 87/13 90/3 90/6

 90/9 90/13 91/20

 93/8 93/14 100/8

 109/5 109/7

 113/17 117/9

 123/8 129/2 129/6

 129/7 136/24

 147/12 155/17

 156/21

inference [6] 

 137/4 137/5 137/7

 138/15 138/15

 161/18

inferred [1] 141/4

inferring [1] 

 40/10

information [29] 

 7/7 7/18 8/2 8/2

 8/11 8/13 9/9 9/10

 9/11 9/15 9/23

 10/3 10/8 10/23

 11/3 66/12 66/15

 66/25 67/5 67/7

 67/12 69/19 69/23

 69/24 73/25

 124/17 131/19

 136/6 147/2

infringe [1] 137/2

infringed [1] 

 142/15

infringement [2] 

 140/22 170/2

infringer [1] 

 148/1

ingredients [1] 

 38/16

inhaled [1] 

 103/13

inhaling [3] 

 103/10 156/2

 179/19

inherently [1] 

 40/14

initial [1] 20/3

initially [1] 36/14

injunction [30] 

 1/12 3/24 45/25

 46/5 101/25

 105/10 109/21

 122/19 132/5

 141/4 144/4 144/9

 148/12 148/16

 151/17 152/1

 155/13 159/1

 159/4 163/18

 171/5 171/7

 171/24 174/5

 174/17 177/16

 177/19 177/23

 179/22 180/2

injury [1] 142/19

inquired [2] 62/10

 91/12

inquiry [2] 110/2

 175/18

insight [1] 94/25

inspection [1] 

 100/20

inspections [1] 

 17/15

instance [2] 

 170/9 170/19

instances [1] 

 167/20

instead [2] 83/3

 119/22

Institute [5] 16/12

 16/14 16/23 16/24

 53/13

Instruments [1] 

 10/13

insure [1] 19/22

intellectual [1] 

 131/14

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intend [5] 7/3

 7/12 7/14 109/17

 137/2

intended [13] 

 19/2 19/11 19/21

 21/7 21/10 29/11

 38/19 38/22 39/3

 39/4 39/6 40/13

 161/11

intending [2] 

 160/25 161/6

intent [20] 5/23

 6/2 6/7 6/16 49/11

 137/1 137/1 137/3

 137/4 137/8

 138/14 138/20

 140/6 160/17

 160/19 160/22

 160/23 161/12

 162/15 169/13

interacted [1] 

 40/4

interacting [1] 

 100/12

interest [16] 

 132/12 136/20

 142/13 142/14

 142/17 143/22

 150/14 155/12

 156/7 156/17

 157/13 171/21

 179/17 180/1

 180/3 180/3

international [3] 

 135/22 138/19

 138/25

internationally [1]

 85/18

interviewed [1] 

 120/4

introduce [2] 

 13/6 124/2

introduced [6] 

 41/1 41/3 41/5

 71/9 71/17 131/1

inures [1] 143/21

invalid [1] 177/1

invariably [1] 

 10/3

investment [2] 

 149/1 149/6

involvement [1] 

 47/15

IP [2] 139/11

 139/13

irrelevant [3] 

 105/9 105/13

 138/24

irreparable [4] 

 105/10 152/1

 154/12 156/3

issuance [1] 

 148/21

issue [45] 4/22

 8/7 8/21 8/22 9/18

 11/5 17/17 20/24

 24/17 30/1 34/21

 47/2 69/15 95/19

 102/10 105/12

 124/21 127/17

 128/24 132/13

 133/6 137/1 137/2

 139/9 148/13

 150/13 150/22

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 155/10 159/12

 171/5 171/13

 172/7 173/2 173/7

 173/15 173/17

 173/19 174/3

 174/20 176/24

 179/2 179/2 181/7

issued [13] 14/24

 23/16 27/10 29/7

 29/22 30/25 32/6

 137/9 140/12

 145/18 145/18

 161/4 171/7

issues [22] 4/16

 5/2 7/2 14/7 16/13

 30/4 52/14 53/17

 70/19 73/9 88/9

 98/5 100/3 132/11

 140/7 146/18

 146/18 150/12

 155/20 171/24

 177/8 178/8

issuing [1] 

 148/11

items [3] 11/13

 128/1 181/7

J

January 12th [1] 

 70/6

January 1st [1] 

 13/11

January 2022 [1] 

 57/18

job [2] 61/13

 126/14

jobs [1] 153/11

JOEL [2] 1/15

 3/10

joined [2] 14/1

 14/2

JON [4] 2/16

 83/15 84/19 84/22

Jonathan [1] 

 84/25

judge [5] 1/13

 23/15 131/14

 148/9 149/8

judges [1] 146/17

judgment [1] 

 154/3

judicial [7] 4/22

 5/15 6/22 32/12

 32/13 32/15 124/5

juice [3] 49/3 49/5

 49/9

July 19th [1] 

 137/15

jumped [1] 

 143/15

junction [1] 

 174/21

jurisdiction [5] 

 14/19 14/21 20/7

 21/3 50/12

jurisdictions [1] 

 13/17

Justice [7] 17/20

 46/20 46/21 46/24

 47/1 47/3 176/8

Juul [4] 89/1

 100/6 111/21

 146/13

K

K-O-K-O [1] 33/4

KEVIN [4] 2/20

 3/13 125/14

 125/17

key [2] 167/23

 169/2

kinds [1] 103/21

KINGDOM [2] 

 1/10 53/5

kit [6] 33/4 33/5

 114/14 115/15

 117/17 117/18

kits [5] 115/4

 115/4 115/12

 116/1 117/14

knocked [1] 

 139/20

knockoff [2] 71/3

 71/5

knockoffs [2] 

 71/13 100/3

knockout [3] 

 139/17 139/19

 139/20

knowing [1] 

 102/7

knows [1] 141/18

Koko [2] 33/4

 37/3

Kratom [1] 

 177/13

KRUPA [1] 1/19

L

lab [2] 94/17

 177/13

labeling [2] 69/18

 174/1

lack [5] 71/8

 77/14 81/6 112/17

 120/12

lacked [1] 37/25

laid [5] 77/17

 153/10 153/12

 160/5 171/15

language [4] 

 19/15 19/21 52/24

 160/23

Lanham [3] 

 139/10 141/3

 145/19

large [5] 22/16

 51/14 79/3 129/8

 152/5

largely [1] 129/6

larger [1] 150/25

largest [1] 87/9

lasts [1] 65/21

late [1] 27/1

lately [1] 129/1

latter [2] 24/4

 33/2

law [44] 13/15

 13/16 13/18 13/21

 14/2 15/6 16/11

 16/12 16/14 16/23

 16/24 18/9 20/7

 21/23 22/7 30/17

 53/13 131/6

 131/24 137/3

 143/6 143/7

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 151/18 152/7

 152/17 160/5

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 169/22 170/17

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 176/6 176/24

 179/25 180/8

Law360 [1] 16/4

lawful [6] 144/24

 145/10 145/20

 154/4 158/11

 176/17

lawfully [1] 40/25

laws [1] 52/5

lawsuit [9] 21/21

 56/25 57/4 60/4

 74/14 88/6 89/13

 113/11 140/14

lay [1] 7/15

LAYLA [2] 1/15

 3/11

layoff [8] 72/6

 72/7 79/2 79/7

 101/10 118/14

 118/18 118/19

lead [2] 109/1

 112/16

leads [1] 43/8

learned [1] 47/17

leave that [1] 

 158/14

leeway [1] 34/9

left-hand [3] 

 48/13 80/5 108/14

leftover [1] 

 179/15

legal [2] 13/24

 34/20

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legally [4] 101/11

 174/14 175/25

 176/20

legitimate [5] 

 99/6 99/16 99/17

 112/17 112/18

lengthy [2] 30/20

 30/23

lens [1] 155/7

letter [20] 20/17

 20/22 29/21 29/24

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 32/6 32/21 35/2

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 47/18 47/20 48/9

 48/17 49/12 53/22

 87/25

letters [15] 17/16

 20/14 40/4 45/17

 45/20 45/24 46/3

 46/25 47/9 47/11

 49/20 50/4 50/11

 53/19 166/4

levels [1] 103/21

Lexis [4] 10/14

 10/19 173/25

 177/14

LI [2] 1/20 3/19

licensing [1] 

 14/10

life [3] 23/8

 140/17 150/7

lifespan [1] 

 123/10

light [2] 6/20 94/8

lighters [1] 

 132/20

lightly [1] 159/5

lights [1] 86/6

likelihood [22] 

 131/7 132/11

 141/3 142/11

 153/21 153/23

 154/5 154/6

 157/17 157/18

 157/20 158/3

 158/3 158/18

 159/2 159/7 165/7

 165/17 166/24

 170/7 173/15

 174/8

liken [1] 26/10

limbo [1] 145/16

limitations [1] 

 169/2

limited [10] 3/12

 5/19 6/8 9/21

 68/14 127/17

 140/17 161/11

 166/3 169/11

limits [1] 180/23

link [1] 79/19

liquid [17] 25/25

 26/4 28/16 35/8

 36/14 49/6 49/6

 49/9 65/11 65/18

 66/1 66/6 99/14

 103/20 117/7

 117/13 117/20

liquids [5] 56/21

 61/3 64/1 93/19

 93/19

list [9] 15/9 15/11

 15/11 31/16 31/18

 41/7 45/11 103/19

 124/9

listen [2] 138/23

 139/23

literally [2] 22/17

 31/10

litigated [1] 

 156/25

litigating [1] 

 157/5

litigation [6] 17/3

 20/25 23/13 88/9

 100/9 113/17

LLC [8] 1/8 1/8

 1/8 1/9 1/9 29/22

 54/21 85/8

LLP [2] 1/23 13/9

local [2] 3/20

 180/22

localities [1] 

 51/25

location [1] 99/10

locations [2] 

 62/15 62/19

lol [2] 141/17

 170/14

losing [1] 172/15

losses [1] 121/10

lower [4] 48/24

 97/8 106/7 160/11

LP [2] 1/4 3/6

LTD [3] 1/8 3/6

 173/12

Luffbar [4] 

 108/16 108/18

 108/24 119/6

lunch [4] 83/24

 84/7 84/14 84/17

lungs [2] 103/11

 156/4

M

magazine [1] 

 169/6

magazines [8] 

 16/5 76/19 76/24

 76/24 135/25

 136/17 169/9

 181/7

mailed [1] 77/3

mainly [1] 92/20

mainstream [2] 

 93/7 100/7

maintain [3] 4/14

 16/1 101/19

maintained [2] 

 68/3 96/22

maintenance [2] 

 63/24 64/3

majority [1] 128/6

manage [1] 

 181/23

manager [1] 

 54/23

Mancini [1] 

 177/13

mandatory [3] 

 43/7 148/14

 163/15

manner [3] 

 105/14 117/16

 165/19

manufacture [1] 

 99/7

manufactured [4] 

 56/23 130/4

 130/12 133/5

manufacturer [10]

 56/8 74/20 81/13

 99/5 99/6 113/2

 130/4 130/7 151/6

 154/19

manufacturers [3]

 98/22 103/1

 129/5

manufactures [1] 

 86/3

manufacturing [1]

 99/9

margin [13] 66/24

 67/4 67/12 70/9

 70/15 96/7 97/10

 119/8 119/9

 119/11 119/11

 119/14 155/5

margins [7] 7/10

 9/9 10/25 66/15

 66/20 69/20 153/4

MARION [2] 1/16

 3/11

market [52] 20/14

 22/23 22/25 23/3

 23/4 24/20 25/4

 25/6 25/9 27/14

 39/20 58/4 59/10

 61/25 62/24 63/2

 66/21 71/9 71/10

 71/15 71/20 73/10

 75/8 75/25 79/2

 79/8 79/9 79/11

 80/16 81/24 93/20

 99/15 100/7

 101/21 102/18

 112/15 118/15

 118/18 118/20

 122/25 138/3

 138/11 139/14

 140/1 140/13

 143/2 145/13

 153/7 154/17

 156/5 172/16

 178/22

marketed [13] 

 18/15 19/22 25/16

 38/7 38/13 39/13

 40/25 51/12 53/1

 53/4 53/6 100/15

 174/14

marketers [1] 

 129/6

marketing [23] 

 14/11 23/1 23/20

 23/24 25/10 27/5

 27/11 28/4 30/25

 31/17 37/25 39/25

 40/22 41/6 41/7

 43/16 50/11 50/16

 86/3 126/14

 137/16 140/15

 143/16

marketplace [21] 

 21/18 70/25 90/1

 98/19 102/22

 103/7 128/12

 128/14 128/15

 142/9 163/2 163/3

 163/23 163/25

 164/5 164/6

 164/24 165/9

 165/16 178/23

 180/4

marketplace's [1] 

 162/25

markets [2] 

 139/24 139/25

markings [1] 

 112/25

Mary [3] 122/1

 122/7 147/17

Mason [1] 13/16

masses [1] 95/12

massive [4] 

 154/22 154/22

 155/9 172/22

master [15] 56/9

 56/10 56/18 74/5

 74/6 74/10 74/11

 74/12 74/17 74/19

 75/14 87/19 87/22

 127/1 127/4

match [1] 48/5

matches [1] 

 48/11

material [3] 9/13

 72/19 72/20

materials [2] 

 29/10 164/19

math [3] 84/6

 106/11 106/12

matter [10] 9/23

 10/2 11/19 12/6

 14/4 47/4 95/6

 155/6 166/16

 182/7

matters [7] 4/8

 4/19 5/13 14/6

 17/3 131/13 181/4

Matthew [1] 

 84/25

McDowell [2] 

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M

McDowell... [2] 

 1/23 3/20

mean and [1] 

 71/6

measures [1] 

 46/1

Medline [1] 10/19

member [4] 16/11

 16/12 16/19

 104/15

members [2] 8/9

 16/22

memorizing [1] 

 52/9

men's [1] 125/3

menthol [2] 27/9

 27/13

Merchants [1] 

 16/16

Merely [1] 69/18

merging [1] 

 175/14

merits [5] 148/17

 149/14 152/24

 153/25 157/18

message [1] 

 141/13

messages [1] 

 141/7

metals [4] 99/12

 103/12 156/3

 179/20

methods [5] 

 135/15 135/23

 136/4 136/14

 168/24

metric [1] 87/11

MICHELLE [2] 

 1/20 3/19

Middle [2] 10/14

 173/20

miller [4] 2/1 2/4

 182/8 182/9

milliliters [1] 66/5

million [18] 28/3

 105/19 105/21

 106/2 106/3

 106/14 106/18

 106/19 107/1

 147/4 149/4 151/4

 151/10 152/3

 152/23 171/9

 171/10 171/12

millions [1] 150/5

Mills [1] 173/12

mindful [1] 12/8

minimal [2] 163/5

 171/25

minimis [1] 

 153/18

mint [1] 145/1

minus [1] 115/19

mirror [1] 87/16

misappropriate

 [1] 160/24

misbranded [2] 

 73/25 74/24

mischaracterizing

 [1] 154/16

misleading [1] 

 98/1

mispronounce [1]

 73/5

misses [1] 162/22

mission [1] 

 104/18

mistaken [1] 

 166/3

misunderstood

 [1] 106/4

mix [2] 61/6 154/8

model [1] 99/24

modest [2] 

 178/23 178/24

modified [1] 

 27/18

moment [3] 78/19

 79/17 83/9

monitor [2] 45/18

 61/21

monopolizing [1] 

 133/17

month [7] 65/21

 107/1 112/9

 129/21 129/21

 172/3 172/3

monthly [2] 97/18

 147/3

months [10] 86/3

 97/18 112/9 112/9

 137/22 138/4

 138/10 151/2

 151/2 151/3

morass [2] 

 146/16 176/20

mortar [1] 90/21

mostly [2] 43/18

 135/9

motion [9] 3/24

 6/22 107/19 131/8

 132/4 154/4 175/6

 180/25 181/25

motions [2] 4/20

 155/14

MOTTA [2] 1/23

 3/20

mouth [1] 94/8

mouthpiece [1] 

 117/21

mouthpieces [1] 

 117/23

movie [1] 134/15

Mr [56] 2/10 2/11

 2/14 2/15 2/17

 2/18 2/19 2/22

 2/23 4/9 5/24 11/9

 13/6 13/8 15/21

 26/19 31/14 32/23

 34/25 36/5 40/21

 42/3 44/12 52/23

 53/24 54/2 69/8

 69/15 89/9 109/24

 116/12 124/11

 124/22 125/2

 125/9 125/18

 127/15 130/21

 131/8 152/16

 153/21 154/15

 155/3 157/16

 159/8 160/18

 162/3 162/17

 162/22 163/1

 165/3 172/1

 173/20 178/3

 180/9 180/13

Mr. [69] 5/19 5/20

 6/4 6/13 7/4 7/12

 8/4 10/6 11/10

 11/15 11/18 11/21

 12/10 12/11 54/20

 56/12 59/5 65/15

 66/11 67/22 70/4

 73/3 76/16 83/11

 83/21 84/18 85/7

 96/4 97/9 102/12

 104/10 115/5

 122/17 122/17

 123/20 123/23

 124/23 125/11

 127/16 129/16

 129/20 130/17

 136/8 150/10

 150/17 151/23

 154/25 155/24

 156/2 156/21

 157/3 158/25

 159/11 164/9

 165/20 167/17

 167/21 168/7

 168/17 168/22

 170/13 170/24

 172/12 176/19

 177/7 178/25

 180/10 180/17

 181/18

Mr. Bryan [1] 

 12/11

Mr. Ebling [1] 

 5/19

Mr. Frija [11] 

 11/10 11/15 11/21

 124/23 125/11

 129/20 130/17

 136/8 168/17

 170/13 172/12

Mr. Frija's [2] 

 122/17 165/20

Mr. Glauser [15] 

 85/7 96/4 97/9

 104/10 122/17

 123/20 151/23

 154/25 155/24

 156/2 156/21

 167/17 168/7

 168/22 178/25

Mr. Hardy [1] 

 115/5

Mr. Heyer [15] 

 10/6 11/18 12/10

 84/18 123/23

 127/16 129/16

 150/10 158/25

 159/11 170/24

 177/7 180/10

 180/17 181/18

Mr. Rothman [9] 

 5/20 6/4 6/13 7/4

 7/12 8/4 157/3

 164/9 176/19

Mr. Rothman's [2]

 150/17 167/21

Mr. Shriteh [11] 

 54/20 56/12 59/5

 65/15 66/11 67/22

 70/4 73/3 76/16

 83/11 102/12

Mr. Shriteh's [1] 

 83/21

MRD [2] 10/18

 10/18

Ms [3] 154/7

 158/2 172/8

Ms. [5] 139/3

 150/14 157/15

 158/15 178/21

Ms. Shufflebarger

 [5] 139/3 150/14

 157/15 158/15

 178/21

multiple [3] 55/20

 78/25 121/19

mundane [1] 

 17/14

myuwell.com [1] 

 48/25

N

nailed [1] 174/10

Nation [1] 170/5

national [2] 139/1

 140/7

nationwide [2] 

 87/6 88/19

nature [11] 8/2

 9/21 10/3 55/3

 66/21 76/6 85/16

 90/3 105/13 106/3

 106/21

near [1] 153/18

necessary [6] 4/6

 9/4 116/13 137/6

 141/2 143/16

negligible [1] 

 112/2

negotiation [1] 

 56/20

neighbor [1] 

 127/7

neither [1] 39/24

newer [1] 75/24

NGUYEN [2] 1/15

 3/11

nice [4] 3/15

 84/16 84/17

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N

nice... [1] 181/22

Nicopure [3] 21/1

 21/2 21/15

nicotine [42] 

 13/25 14/8 16/25

 19/2 19/6 20/11

 20/15 21/4 21/9

 21/10 24/22 25/25

 26/3 28/6 28/16

 29/3 31/3 31/9

 38/11 38/16 39/5

 39/9 40/10 42/17

 43/7 43/7 43/8

 43/11 43/15 49/6

 49/10 80/13 80/22

 92/15 92/18

 100/15 104/22

 104/23 117/13

 135/9 168/9

 168/13

nightclub [1] 

 149/2

nine [1] 87/4

Nineteen [1] 

 59/25

Ninth [2] 173/8

 173/18

nitrosamines [1] 

 103/21

non [1] 92/21

non-addicted [1] 

 92/21

noncompliance

 [1] 53/11

noncompliant [1] 

 53/20

none [3] 24/14

 27/5 116/11

nonrechargeable

 [1] 65/5

nontobacco [1] 

 45/12

norm [1] 52/3

Northern [2] 

 10/16 10/19

notably [1] 39/18

notice [11] 4/22

 5/15 6/23 32/12

 32/13 32/16 70/25

 99/18 124/5

 138/12 138/13

noticed [1] 98/18

notified [1] 138/7

notifies [1] 181/9

notwithstanding

 [2] 148/13 159/18

November 18 [1] 

 48/14

nowhere [1] 

 156/16

number [36] 3/5

 18/4 20/13 22/16

 23/14 31/4 50/22

 51/2 51/14 58/3

 59/9 59/23 61/10

 61/19 69/9 72/2

 72/3 72/4 78/12

 79/3 88/21 92/11

 95/21 96/17

 102/22 106/23

 107/20 119/13

 129/5 150/12

 152/19 153/6

 153/6 154/9 169/1

 171/4

number one [1] 

 102/22

numbered [1] 

 82/5

numbers [24] 

 7/20 7/22 7/25

 8/17 8/20 67/21

 70/17 77/11 96/18

 97/17 98/1 98/2

 103/6 105/17

 124/9 147/23

 147/24 150/4

 151/11 152/4

 152/5 154/9 171/7

 171/8

numerous [1] 

 53/7

NW [2] 1/22 1/24

O

object [2] 6/8

 34/3

objection [42] 

 7/13 11/25 12/4

 15/16 15/17 15/18

 34/1 34/2 34/5

 34/22 35/25 36/2

 37/11 37/12 37/13

 45/6 49/22 69/13

 77/13 77/18 78/18

 78/21 81/6 81/10

 81/11 97/1 97/5

 105/7 105/15

 109/10 109/19

 109/23 116/14

 118/1 118/8 118/9

 118/11 120/12

 120/13 121/2

 121/12 123/4

obligation [2] 

 158/10 176/14

oblong [1] 166/4

observation [2] 

 57/19 88/13

observe [1] 

 180/22

obtain [5] 18/5

 23/24 28/10 30/20

 39/23

obtained [2] 

 39/25 41/6

obtaining [1] 

 70/19

October 2021 [4] 

 88/12 96/11 97/19

 123/17

October 2022 [2] 

 96/11 97/19

October 31 [1] 

 70/6

offenders [1] 

 179/11

offense [1] 144/8

offensive [2] 

 142/22 176/2

offer [5] 33/11

 36/10 94/9 132/1

 148/20

offering [6] 6/10

 6/14 6/19 147/9

 147/10 160/18

office [10] 53/16

 137/9 137/21

 138/13 146/2

 160/20 162/4

 165/8 165/10

 165/14

officer [2] 12/2

 85/11

Official [2] 2/1

 182/9

officially [1] 86/7

oh [3] 69/4 80/1

 127/19

older [2] 63/23

 172/19

omnidistro.com

 [1] 82/10

online [5] 61/21

 62/7 91/18 126/1

 126/6

open [34] 4/14

 4/23 5/1 11/5

 24/23 25/20 25/21

 26/3 28/5 28/8

 29/16 30/3 31/2

 31/22 33/9 35/4

 35/12 36/6 36/10

 37/17 37/19 37/22

 63/22 63/23 64/7

 64/19 65/16 86/5

 93/18 94/3 99/9

 100/14 106/6

 159/18

opening [1] 64/4

openness [1] 

 9/14

operate [3] 56/20

 72/4 149/11

operating [2] 

 55/20 143/10

Operations [1] 

 54/23

opinion [7] 38/2

 38/17 39/12 39/15

 40/3 40/21 94/5

opinions [2] 

 38/12 155/14

opportunity [5] 

 5/17 33/3 38/12

 131/1 159/17

opposed [4] 36/7

 51/17 165/8 166/1

opposing [2] 7/23

 34/9

opposite [1] 

 143/22

options [2] 24/1

 36/10

Oracle [1] 175/3

oral [1] 177/22

orally [2] 9/3

 177/16

order [11] 7/5 8/7

 23/16 25/4 25/13

 39/19 106/14

 128/11 167/17

 174/23 177/17

orders [1] 30/25

ordinary [1] 69/23

organization [1] 

 104/20

organization's [1]

 181/13

organizations [1] 

 23/14

original [2] 113/1

 130/4

otherwise the [1] 

 118/4

ought [1] 146/15

outcome [1] 

 112/19

outlets [8] 61/17

 62/6 62/8 90/22

 91/3 135/14 158/1

 168/16

outset [1] 149/12

outweigh [1] 

 167/9

over 50 [1] 

 171/12

overall [10] 58/23

 59/13 89/5 89/8

 101/9 105/5

 105/24 106/1

 106/17 177/3

overcome [1] 

 9/13

overcoming [1] 

 11/7

overhead [1] 

 97/11

overrule [2] 77/18

 105/15

Overruled [2] 

 45/8 123/6

overstated [1] 

 159/10

overstating [2] 

 141/12 141/14

overtaken [1] 

 111/2

overview [1] 

 132/2

overwhelming [1] 

 171/24

owned [1] 132/18

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O

owners [5] 54/24

 85/12 142/16

 145/14 157/6

ownership [2] 

 159/11 159/13

P

P-R-O-C-E-E-D-IN-G-S [1] 2/25

P.A [1] 1/16

p.m [4] 84/15

 125/6 125/7 182/3

pack [2] 66/3 94/7

packaging [2] 

 71/12 112/25

page [21] 2/8

 32/20 32/23 35/5

 35/9 37/20 49/3

 49/4 80/4 80/9

 82/1 82/3 82/12

 118/25 136/1

 136/1 136/1 136/2

 141/25 161/25

 180/23

pages [4] 1/8

 35/6 37/17 178/16

paltry [1] 126/15

pandemic [1] 

 23/18

paper [2] 134/1

 165/14

papers [3] 169/25

 177/11 181/1

parameters [1] 

 18/20

paraphrasing [3] 

 19/1 21/4 29/9

parse [1] 148/7

part [19] 9/5 19/5

 19/14 29/5 31/7

 52/13 71/20 98/19

 112/11 117/19

 133/15 133/16

 136/6 145/13

 154/8 161/13

 174/2 175/10

 176/14

partial [2] 34/22

 152/2

participate [1] 

 16/15

particularized [1] 

 11/4

parties [8] 9/22

 72/19 83/24

 156/19 164/4

 180/7 181/11

 181/15

parties' [2] 6/21

 168/16

partner [3] 13/9

 13/10 13/11

partners [1] 86/5

Partnership [1] 

 3/12

party [7] 94/17

 148/16 148/18

 152/9 163/11

 163/12 163/22

passe [1] 140/21

passionate [1] 

 104/12

paste [3] 71/9

 71/11 71/12

PATEL [1] 1/19

patent [4] 88/9

 173/5 175/4 175/6

pathway [7] 

 23/25 24/13 25/1

 25/10 25/19 28/11

 31/19

pathways [5] 

 23/19 23/23 24/2

 24/15 24/16

PDF [2] 107/17

 107/19

peaked [1] 88/16

Pebble [1] 108/25

pedigree [2] 

 109/5 109/6

pen [1] 116/8

pending [4] 31/5

 31/23 31/23 71/24

people [23] 16/15

 49/10 50/6 53/16

 91/14 92/20 93/1

 99/8 103/9 110/14

 112/16 119/25

 136/8 143/15

 147/23 156/2

 164/11 168/9

 168/10 168/11

 168/21 168/23

 179/19

people's [1] 

 164/24

Pepper [1] 13/9

peppered [1] 10/5

percentage [2] 

 89/4 106/16

perception [1] 

 92/3

performance [1] 

 29/13

perhaps [15] 40/3

 95/21 101/22

 111/12 115/12

 140/16 141/12

 143/13 152/25

 162/20 163/25

 177/20 179/24

 180/14 180/15

period [18] 9/2

 9/4 23/5 68/19

 68/20 70/10 70/14

 70/22 70/24 98/5

 112/1 112/2

 118/20 123/9

 128/2 130/1

 140/20 180/4

periodically [1] 

 26/17

periodicals [2] 

 77/6 77/10

permissible [1] 

 21/7

permission [1] 

 11/11

permit [2] 5/9

 34/20

permits [1] 11/16

person [2] 3/15

 181/22

personal [2] 11/2

 86/11

perspective [3] 

 94/2 94/15 153/15

persuade [1] 

 105/9

persuaded [1] 

 170/3

persuasive [3] 

 169/15 169/20

 176/25

pertain [1] 14/8

pertains [1] 22/7

Phantom [1] 

 146/12

phonetic [2] 3/11

 173/24

photograph [1] 

 181/13

pick [4] 13/1

 127/8 138/2 181/8

picked [2] 127/9

 143/14

pictures [2] 

 114/20 116/20

piece [3] 4/19

 143/24 165/14

pieces [1] 70/17

PIERCE [4] 1/3

 1/6 2/3 182/11

pipes [1] 61/6

place [2] 168/23

 178/22

plain [2] 135/2

 178/11

plaintiff [28] 1/6

 3/9 3/12 3/25 5/3

 21/2 38/6 57/5

 88/7 97/1 124/15

 125/14 132/16

 133/7 145/5

 148/23 149/7

 157/19 159/7

 161/17 161/22

 163/12 163/25

 167/1 171/5

 171/19 171/25

 174/7

plaintiff's [32] 

 3/24 34/21 44/10

 44/16 44/24 45/4

 76/13 76/21 77/19

 77/20 82/4 95/21

 95/22 102/13

 114/17 114/22

 115/21 116/4

 117/2 118/12

 127/23 129/20

 129/25 132/7

 132/8 144/8

 149/13 153/23

 160/2 164/23

 168/10 169/17

plaintiffs [5] 1/15

 163/7 163/18

 169/7 176/9

plan [2] 4/5 5/5

plans [2] 83/25

 84/3

plant [2] 92/25

 173/24

play [4] 145/13

 159/15 164/21

 170/4

player [2] 143/2

 143/4

players [1] 

 142/21

plus [3] 43/21

 74/14 127/10

PMTA [11] 23/21

 23/24 25/13 25/16

 27/21 27/24 27/25

 28/11 31/19 94/22

 98/17

PMTAs [3] 31/23

 31/25 98/13

pod [10] 27/8

 33/4 33/5 35/7

 35/9 35/11 36/11

 36/12 64/5 64/5

podium [2] 12/25

 13/2

pods [2] 37/21

 145/1

point [44] 8/18

 10/1 10/6 14/20

 21/6 27/1 55/23

 86/8 89/20 102/20

 103/3 107/11

 116/15 124/22

 125/25 133/20

 136/6 138/24

 145/10 146/7

 149/20 152/4

 152/6 152/11

 153/24 159/11

 159/15 161/24

 163/9 164/3 164/6

 167/23 168/4

 168/19 169/12

 171/17 172/6

 172/23 172/25

 174/25 175/13

 177/15 177/19

 178/18

points [4] 32/24

 164/9 165/2

 177/20

police [1] 164/24

policies [1] 39/14

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policy [9] 22/20

 22/21 25/8 25/18

 26/24 27/19 27/20

 39/20 41/4

politics [1] 127/6

pop [1] 99/9

pop-ups [1] 99/9

popular [17] 

 57/20 58/6 58/15

 58/20 58/22 59/7

 64/10 64/22 88/14

 90/5 93/12 93/12

 126/23 128/25

 134/15 155/16

 155/21

popularity [6] 

 14/18 57/25 88/16

 88/18 93/3 95/5

Port [2] 55/2 55/2

portfolio [2] 6/18

 139/5

pose [1] 46/19

position [12] 

 60/19 73/22 90/11

 91/6 91/14 110/13

 146/5 149/11

 149/22 174/22

 179/8 180/17

possess [1] 

 159/18

post [3] 58/6

 147/8 180/8

posture [4] 131/5

 144/4 156/19

 177/1

potential [9] 

 73/16 82/21

 102/21 105/10

 113/6 140/14

 149/19 152/14

 172/7

potentially [20] 

 17/8 19/8 53/23

 99/13 101/10

 103/12 103/18

 103/20 112/15

 115/19 117/8

 118/21 144/8

 146/23 150/13

 154/23 156/4

 171/15 172/19

 174/5

pound [1] 96/15

power [2] 93/22

 179/13

Powerline [1] 

 1/17

practice [5] 13/17

 13/19 13/23 68/4

 156/23

Practices [1] 

 176/5

practicing [1] 

 13/21

practitioner [1] 

 141/22

Pre [1] 94/21

precise [1] 6/2

precision [1] 

 124/10

predicate [1] 

 158/9

preemption [2] 

 51/18 51/21

preemptive [1] 

 158/18

preexisting [1] 

 18/19

prefer [2] 4/15

 83/24

preference [1] 

 12/24

prefilled [3] 36/7

 36/12 64/5

preliminarily [1] 

 101/4

preliminary [19] 

 1/12 3/24 4/7

 11/19 109/21

 122/18 132/5

 141/4 144/4

 148/12 151/25

 155/13 159/1

 159/3 163/17

 174/5 174/17

 174/21 180/2

premarket [14] 

 17/21 21/20 22/9

 22/15 23/20 23/25

 26/25 27/21 28/14

 39/18 94/20 94/22

 103/17 145/3

premised [1] 

 176/10

preparation [1] 

 4/3

prepared [2] 68/2

 96/20

present [8] 60/17

 89/16 122/17

 123/24 124/12

 130/22 131/14

 156/1

presentation [1] 

 132/3

presentations [3] 

 16/6 16/10 53/9

preserves [1] 8/1

press [3] 8/16

 47/17 169/3

presumption [3] 

 9/14 11/7 132/24

presumptive [1] 

 23/25

prevailing [1] 

 149/9

preventing [1] 

 180/3

primary [1] 

 133/15

primely [1] 87/21

primitive [1] 

 93/20

principal [4] 14/9

 39/7 118/4 145/18

principle [1] 

 51/21

printout [7] 33/16

 33/20 35/15 35/19

 36/24 37/6 48/13

printouts [1] 

 49/17

priority [8] 132/7

 132/8 132/13

 133/6 133/19

 142/8 159/12

 159/13

private [12] 11/3

 13/23 21/21 21/24

 46/11 46/14 51/24

 175/19 175/20

 175/25 176/2

 176/9

privilege [2] 14/4

 17/11

probability [3] 

 148/17 148/19

 149/13

probative [2] 

 135/25 169/11

probe [1] 110/1

problem [11] 66/9

 66/23 81/14

 102/23 138/11

 139/1 147/21

 157/4 179/14

 179/16 179/24

problematic [1] 

 98/9

procedural [3] 

 4/8 4/19 181/4

proceed [7] 7/4

 30/13 41/23 54/16

 85/2 105/16

 138/18

proceeded [1] 

 161/19

proceeding [4] 

 10/4 20/18 21/12

 21/16

proceedings [5] 

 41/19 84/14 125/6

 182/3 182/6

process [4] 30/20

 30/23 179/24

 180/13

produce [1] 

 107/17

product [194] 

product's [1] 

 29/12

products [259] 

professional [3] 

 16/19 86/11

 162/13

proffer [2] 118/3

 118/5

profit [36] 7/10

 9/9 10/25 66/15

 66/19 66/24 67/4

 67/11 67/23 69/20

 70/9 96/7 97/10

 97/12 97/18 101/9

 104/20 105/6

 106/5 106/7 106/9

 118/23 119/8

 119/9 119/10

 119/11 119/14

 119/15 147/2

 147/3 147/5

 150/25 153/4

 155/5 171/10

 171/11

profitable [4] 

 118/21 118/24

 119/5 119/21

profitably [1] 

 149/12

profits [13] 7/11

 9/9 10/25 67/4

 67/11 69/20 70/13

 149/2 151/4 151/6

 151/12 154/10

 154/23

progressed [1] 

 93/18

progresses [1] 

 10/2

prominent [1] 

 126/24

promote [1] 

 128/11

promulgated [2] 

 22/19 27/1

prong [2] 157/17

 167/10

pronouncements

 [1] 22/6

proof [1] 136/6

propensity [1] 

 155/16

properly [1] 159/5

property [1] 

 131/14

proposed [2] 

 14/23 131/24

proprietor's [1] 

 160/24

propriety [1] 7/18

prosecuting [1] 

 46/21

prospect [2] 

 112/20 113/8

protect [3] 129/12

 142/16 143/19

protectable [4] 

 134/6 139/16

 142/11 159/14

prove [4] 111/1

 158/4 159/7

 174/11

proveable [1] 

 111/7

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proven [1] 94/10

province [1] 

 46/16

proving [1] 24/6

PTO [2] 160/1

 162/8

public [33] 7/24

 8/10 9/12 9/14

 10/1 10/24 24/9

 41/6 47/14 47/18

 66/15 66/18 103/2

 103/5 132/12

 142/13 142/14

 142/17 143/22

 150/14 155/12

 155/23 156/7

 156/8 156/17

 157/8 157/13

 171/21 171/21

 179/17 180/1

 180/2 180/3

publically [1] 

 53/9

publications [7] 

 15/10 15/12 16/4

 76/8 136/19

 136/23 169/11

publicly [2] 7/19

 67/12

publish [1] 16/3

published [1] 

 15/25

publishing [2] 

 66/14 67/4

Puff [14] 82/2

 82/13 82/15 82/17

 82/21 82/21 82/24

 83/3 102/13

 102/16 102/18

 167/18 167/19

 167/19

pull [2] 94/7 96/6

pulled [1] 102/18

purchase [5] 75/4

 83/3 111/13 136/6

 136/8

purchasers [1] 

 109/2

purchases [1] 

 83/1

purchasing [5] 

 80/22 112/16

 112/21 113/20

 170/12

purposes [2] 29/2

 116/18

Pursuant [1] 77/9

pursue [4] 46/24

 47/4 179/16

 179/23

push [1] 102/10

Q

qualifies [1] 

 20/20

qualify [2] 20/11

 103/20

quality [4] 72/17

 73/13 98/24 99/1

quantify [2] 

 155/23 156/6

quantities [1] 

 155/22

question [34] 

 22/22 28/19 29/2

 29/4 29/14 40/12

 52/4 58/17 58/25

 60/8 62/16 65/13

 66/17 75/6 75/19

 81/4 81/10 82/25

 95/18 105/8

 105/14 106/4

 108/19 109/23

 110/11 113/4

 114/7 114/25

 120/2 122/9

 124/15 124/16

 144/3 176/21

questioning [2] 

 7/16 110/21

questions [20] 

 24/9 40/2 42/18

 51/20 52/18 53/25

 66/11 66/13 72/21

 73/7 83/7 122/11

 123/19 124/24

 125/20 127/14

 127/19 129/15

 130/16 161/15

quick [3] 4/3

 95/18 157/10

quickly [3] 144/15

 180/14 180/18

quiet [1] 156/17

QUINTERO [2] 

 1/16 3/11

quit [1] 86/1

quo [1] 171/6

quote [6] 19/9

 24/8 28/8 28/24

 111/9 180/2

quoting [1] 111/9

R

raise [5] 4/8 4/16

 12/19 24/8 125/13

raised [2] 73/13

 178/8

ramp [3] 62/14

 172/20 172/21

ramped [1] 

 172/11

ramping [2] 138/3

 142/23

random [1] 94/18

range [3] 14/7

 17/14 93/22

rank [2] 57/25

 88/18

Rapidly [1] 60/16

rare [1] 156/7

rate [1] 149/18

Raton [2] 1/17

 1/24

razor [2] 26/10

 65/3

razors [2] 26/11

 26/11

re [2] 146/12

 146/13

reached [1] 29/25

reaction [1] 

 126/11

realistic [2] 82/23

 83/1

realities [1] 

 152/10

reality [1] 140/23

realm [3] 134/5

 134/19 153/18

reasonableness

 [1] 153/19

rebrand [1] 

 139/25

rebut [2] 6/6

 133/1

rebuttal [3] 5/5

 5/9 11/15

rebutted [1] 

 132/25

recent [1] 15/9

recently [2] 18/17

 18/18

recess [6] 41/17

 41/19 84/5 84/14

 125/6 181/5

rechargeable [1] 

 65/4

recipient [2] 30/5

 30/7

recognition [7] 

 162/25 163/2

 163/3 163/11

 163/13 178/22

 178/23

recognize [6] 

 29/19 29/21 30/12

 31/15 76/18

 128/18

recognized [3] 

 144/3 144/17

 174/25

recollection [1] 

 142/2

recommending

 [1] 149/21

record [21] 4/24

 7/21 7/23 8/1

 12/22 34/10 34/20

 54/13 69/5 69/7

 84/24 86/23 114/3

 125/16 132/17

 142/4 156/23

 162/3 164/19

 176/17 178/15

records [3] 68/3

 68/7 96/21

recreational [1] 

 92/20

rectangle [1] 

 133/13

redirect [8] 2/12

 2/19 52/19 52/21

 83/8 83/10 122/13

 122/15

reduce [1] 4/25

reference [2] 

 35/10 37/20

referenced [5] 

 19/25 25/20 26/6

 160/2 172/8

references [3] 

 69/3 69/10 153/3

referencing [2] 

 67/21 167/14

refill [2] 63/25

 93/19

refillable [6] 35/9

 35/11 37/21 65/16

 65/17 135/11

refilled [2] 36/13

 65/16

reflect [4] 70/5

 70/8 98/1 106/7

reframe [1] 49/23

refugees [1] 

 101/11

refused [2] 146/2

 162/6

register [3] 

 137/10 139/19

 145/18

registerable [1] 

 137/12

registered [4] 

 132/14 132/19

 137/16 179/10

registration [16] 

 132/17 134/23

 134/25 137/13

 139/13 140/10

 140/11 159/19

 159/22 159/24

 160/2 160/20

 165/4 165/11

 170/3 176/16

registrations [2] 

 138/20 138/22

regular [1] 100/19

regularly [3] 16/3

 90/16 90/17

regulate [1] 30/7

regulated [2] 

 20/23 30/3

regulation [9] 

 15/22 16/21 17/3

 19/24 21/6 22/4

 22/14 28/23 52/13

regulations [18] 

 14/23 14/24 14/24

 19/8 19/17 19/18

 19/20 21/1 21/16

 22/12 22/19 22/24

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regulations... [6] 

 27/1 28/1 29/8

 39/11 39/13 52/7

regulatory [8] 

 14/7 16/13 18/2

 20/20 23/9 51/17

 98/17 101/2

relation [1] 113/5

relationship [4] 

 75/15 87/18 99/5

 101/13

relationships [4] 

 101/18 101/20

 151/24 154/13

relative [1] 171/3

relatively [2] 

 17/14 24/22

release [1] 100/23

released [1] 

 100/25

relevance [8] 

 34/5 34/8 34/13

 45/6 77/14 105/7

 138/14 140/6

relevancy [1] 

 77/17

reliance [2] 111/5

 159/8

relief [1] 176/12

rely [7] 73/22

 73/25 109/17

 110/20 128/10

 145/7 156/20

relying [8] 74/22

 109/16 110/7

 110/10 110/12

 111/1 111/4 112/3

remain [1] 84/21

remained [1] 

 27/19

remains [1] 71/24

remedies [1] 46/7

remedy [3] 

 151/20 152/2

 159/4

removed [3] 79/2

 118/18 118/20

removing [1] 

 110/14

rendered [1] 

 170/4

rep [1] 91/21

repetitive [1] 

 29/14

rephrase [3] 

 81/10 110/11

 118/16

replace [3] 26/16

 137/25 154/14

replaceable [1] 

 26/12

replaced [2] 

 111/24 140/21

report [3] 8/16

 25/3 96/6

reporter [6] 2/1

 12/7 56/13 89/9

 94/21 182/9

reports [1] 17/2

representative [2]

 120/25 121/4

representatives

 [2] 7/9 126/9

reputable [6] 74/2

 75/21 75/22 76/7

 102/25 156/11

request [9] 5/15

 25/9 25/11 32/15

 69/24 151/9

 151/10 177/22

 180/12

requested [1] 

 91/16

requests [1] 10/5

required [6] 4/2

 131/5 148/16

 149/7 150/1 156/5

requirement [8] 

 17/21 21/20 22/10

 22/16 22/17 39/18

 152/10 166/23

requirements [11]

 14/10 14/10 18/3

 18/4 18/5 22/8

 26/25 39/17 52/1

 103/17 174/1

research [3] 

 62/13 63/5 86/4

researching [1] 

 76/7

resell [1] 136/17

resellers [1] 

 126/2

reservoir [1] 

 117/20

resolve [2] 174/5

 179/24

resources [3] 

 145/12 157/3

 179/23

respectfully [3] 

 157/11 173/14

 174/18

respective [1] 

 168/3

response [2] 5/22

 137/10

responsibilities

 [2] 51/3 61/13

restraint [1] 8/7

restrict [1] 4/13

restrictions [1] 

 14/11

result [5] 27/12

 60/3 89/13 119/20

 147/25

resume [1] 84/17

resumed [3] 

 41/20 84/15 125/7

retail [11] 55/13

 55/20 61/17 62/6

 62/22 87/6 90/22

 128/7 136/18

 158/1 168/16

retailers [1] 87/5

return [1] 83/12

reusable [1] 

 136/1

reused [1] 135/19

Reuters [1] 120/4

revenue [21] 

 66/24 67/12 67/23

 68/15 68/21 72/1

 79/6 89/8 96/14

 105/2 105/3 105/5

 105/6 105/24

 106/1 106/7 106/8

 106/12 106/17

 106/21 147/1

revenues [6] 67/4

 69/20 70/5 89/5

 171/11 172/21

reverse [1] 

 150/21

reversible [1] 

 152/14

review [2] 21/13

 77/16

Reynolds' [1] 

 88/23

rid [2] 81/2 81/5

ride [1] 137/4

rights [12] 139/11

 139/11 142/16

 143/3 143/18

 149/7 158/5 158/5

 173/1 174/15

 176/15 179/9

rigorous [1] 63/5

rise [1] 9/16

rises [1] 9/12

risk [2] 155/23

 157/8

RJ [1] 88/22

RMR [2] 2/1 182/9

Road [1] 1/17

robust [2] 27/24

 27/25

roll [1] 20/5

room [1] 125/3

rooms [1] 84/10

ROTHMAN [38] 

 1/15 2/11 2/15

 2/18 2/22 3/10 4/9

 5/20 6/4 6/13 7/4

 7/12 8/4 11/9 69/8

 69/15 109/24

 116/12 124/11

 124/22 125/9

 125/18 127/15

 130/21 131/8

 152/16 153/21

 154/15 157/3

 157/16 160/18

 162/3 162/17

 164/9 173/20

 176/19 178/3

 180/13

Rothman's [6] 

 150/17 159/8

 162/22 165/3

 167/21 180/9

routinely [3] 

 53/17 62/20 92/2

rule [7] 19/25

 77/9 81/9 139/10

 139/12 148/14

 152/11

ruled [2] 162/6

 173/7

rules [2] 27/20

 180/22

ruling [4] 10/6

 69/24 155/13

 161/4

S

S-A-F-A [1] 54/21

S-H-R-I-T-E-H [1] 

 54/15

sadly [1] 72/7

SAFA [24] 1/8

 54/21 54/22 54/24

 55/1 55/3 55/6

 55/9 55/12 55/21

 56/3 56/16 57/11

 58/23 59/9 59/13

 60/3 60/19 62/24

 64/18 68/4 70/5

 70/15 71/23

safer [6] 92/16

 94/10 94/13

 104/21 104/22

 104/24

safety [8] 11/5

 46/20 72/18 73/16

 94/15 94/16 103/2

 171/22

sake [1] 181/13

sale [11] 48/18

 49/19 50/3 50/7

 51/12 70/13 91/9

 99/20 136/11

 145/1 178/18

sales [74] 7/9 9/9

 10/24 58/23 59/13

 59/14 59/16 60/14

 66/15 66/20 67/23

 68/14 68/16 68/17

 69/10 70/5 70/9

 71/23 91/14 91/21

 96/7 96/14 97/12

 97/22 98/1 101/5

 102/21 106/22

 106/25 109/1

 111/5 112/5

 118/22 122/23

 123/3 124/17

 126/15 128/1

 128/6 128/6 129/1

 129/21 135/15

 135/23 136/4

 136/13 137/20

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sales... [27] 138/3

 138/6 138/10

 142/23 150/25

 151/13 151/15

 152/21 153/11

 154/22 156/1

 163/4 163/5 171/4

 171/8 171/9 172/2

 172/3 172/3

 172/11 172/13

 172/15 172/18

 172/20 172/21

 178/24 178/24

sample [2] 15/9

 15/11

sampled [1] 

 57/15

Sanders [1] 13/9

satisfy [2] 72/10

 155/18

scale [3] 133/23

 133/23 162/20

scandalous [1] 

 145/21

schedule [1] 

 131/13

scheme [2] 

 126/18 142/21

School [1] 13/16

scope [2] 45/7

 123/5

screen [5] 47/25

 52/11 79/18

 107/22 108/14

se [2] 174/11

 176/21

seal [5] 7/14 7/24

 9/9 9/15 68/12

sealed [6] 7/22

 8/14 10/2 10/11

 10/25 69/18

sealing [6] 9/13

 9/24 10/4 69/14

 69/21 69/24

search [14] 4/23

 6/6 6/9 136/10

 136/12 139/15

 139/17 139/20

 139/20 140/8

 140/10 140/24

 160/19 179/6

searches [1] 

 140/7

seat [4] 12/21

 54/12 84/23

 125/15

second [11] 5/15

 6/22 32/20 32/23

 33/8 35/9 37/16

 39/7 130/14

 164/23 174/19

secret [6] 7/17

 8/2 9/17 9/20 67/8

 69/19

section [2] 17/22

 145/20

security [4] 12/2

 148/13 148/14

 148/15

seek [6] 24/1

 28/10 45/25 46/5

 46/5 177/21

seeking [6] 

 148/16 168/3

 168/8 168/10

 168/11 176/12

sees [2] 53/22

 141/22

selection [1] 

 24/22

self [1] 77/10

self-authenticatin

g [1] 77/10

seller [4] 107/4

 107/9 107/11

 112/17

selling [24] 9/5

 30/15 30/18 39/23

 50/16 56/8 60/11

 61/5 61/22 62/10

 72/15 91/13 92/11

 98/3 119/21

 123/13 123/16

 137/16 144/19

 151/2 152/22

 156/13 156/15

 172/9

sells, [1] 114/14

sells, these [1] 

 114/14

senior [3] 137/5

 137/13 158/5

sense [10] 9/7

 27/23 83/14 106/9

 110/1 111/1 111/4

 145/8 150/3 150/5

sensible [1] 

 138/21

sensitive [2] 11/2

 105/12

September 9 [2] 

 23/17 32/1

September 9th [2]

 25/12 25/17

serious [2] 

 155/23 157/8

seriously [1] 

 94/16

serve [1] 17/1

served [2] 16/24

 180/3

service [1] 76/2

session [2] 

 136/21 139/8

setting [4] 69/14

 132/12 152/9

 153/22

seven [4] 74/15

 90/14 127/1

 166/23

Seventh [1] 152/9

Shall [1] 180/22

shape [7] 89/21

 90/2 90/5 90/5

 133/12 133/18

 134/18

share [3] 69/22

 100/8 101/21

shared [1] 47/16

sharing [1] 51/17

SHENZHEN [19] 

 1/7 3/6 32/7 32/21

 48/8 74/18 74/22

 75/2 75/5 75/15

 81/1 81/21 87/17

 99/4 120/22

 120/23 121/9

 121/22 122/6

shield [1] 176/13

shiver [1] 146/17

shocked [1] 

 126/17

shop [6] 55/5

 61/1 61/2 76/20

 76/20 136/4

shops [17] 55/13

 55/20 60/24 60/24

 61/5 61/7 61/7

 62/23 62/25 87/22

 87/22 90/16 126/1

 126/1 126/19

 135/20 168/19

short [3] 5/9

 155/13 172/1

shorter [1] 83/21

shorthand [1] 

 18/23

shown [3] 44/12

 49/13 116/13

shrift [1] 155/13

SHRITEH [16] 

 2/13 54/8 54/11

 54/14 54/20 56/12

 59/5 65/15 66/11

 67/22 70/4 73/3

 73/4 76/16 83/11

 102/12

Shriteh's [1] 

 83/21

shuffle [1] 127/12

SHUFFLEBARGE

R [10] 1/20 3/19

 139/3 150/14

 154/7 157/15

 158/2 158/15

 172/8 178/21

sic [1] 115/5

side [5] 4/8 80/5

 108/14 151/25

 180/12

sides [2] 124/8

 130/24

signal [1] 17/17

signed [1] 130/4

significance [1] 

 26/21

signs [1] 96/15

similarity [13] 

 134/22 135/4

 135/5 135/24

 157/25 164/8

 165/1 166/7

 166/15 166/25

 167/25 168/15

 168/24

simple [3] 24/22

 50/5 144/17

single [6] 86/6

 91/16 111/23

 112/3 151/12

 170/19

site [1] 117/14

situation [6] 8/8

 103/9 111/6

 111/25 148/24

 149/17

situations [5] 

 46/18 46/19

 110/16 111/23

 111/23

Sixth [1] 162/6

size [6] 75/23

 89/21 90/2 90/4

 90/5 134/16

sizes [1] 171/3

skeptical [1] 

 24/24

skew [3] 86/23

 86/24 87/1

skews [1] 86/22

slew [1] 22/13

sliding [1] 133/23

slow [2] 165/12

 175/11

slowly [4] 12/9

 13/3 56/12 89/9

slug [1] 146/18

small [6] 12/6

 48/14 129/5

 134/17 142/21

 161/8

smaller [3] 93/23

 106/16 145/12

smokeless [2] 

 20/5 132/20

smoker [2] 94/6

 95/11

smokers [1] 

 94/10

smoking [1] 86/1

so-called [2] 18/6

 24/18

software [2] 29/9

 52/14

sold even [1] 

 88/22

sole [4] 5/21

 46/16 151/20

 176/7

solely [1] 6/14

sorts [2] 77/5

 77/16

sought [6] 19/18

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sought... [5] 

 22/25 39/24 46/20

 47/2 174/22

sounded [1] 

 110/17

sounds [1] 

 106/20

source [5] 19/2

 73/22 78/7 141/19

 141/20

South [2] 2/2

 182/10

SOUTHERN [3] 

 1/2 173/22 177/10

space [2] 17/13

 126/24

specific [19] 7/25

 40/7 40/15 40/16

 64/8 64/21 67/21

 70/16 94/18 105/4

 105/14 110/5

 110/5 110/9

 110/10 110/22

 111/1 111/21

 114/25

specificity [1] 

 181/2

specifics [4] 14/3

 17/10 110/19

 125/20

specified [1] 23/1

speculation [2] 

 49/22 112/11

speech [1] 8/8

spell [3] 54/13

 84/24 125/16

spent [1] 99/3

spin [1] 156/10

split [3] 150/16

 173/15 173/18

spoken [2] 16/6

 16/10

spot [1] 107/12

spring [4] 57/22

 57/23 88/15

 173/12

SRIPLAW [2] 

 1/16 3/10

St [1] 1/17

stage [1] 174/5

stages [1] 163/17

stand [4] 12/17

 42/14 124/24

 125/12

standard [4] 

 117/9 131/5

 134/24 159/12

standing [3] 

 67/11 84/21

 179/18

standpoint [1] 

 138/14

stands [2] 10/18

 42/16

staple [1] 93/7

starting [2] 3/8

 138/3

state [13] 3/8

 12/21 51/17 54/13

 58/1 58/15 58/21

 59/7 84/24 125/16

 170/18 176/3

 176/5

stated [6] 68/11

 69/21 106/23

 113/10 113/16

 170/1

statement [1] 

 111/16

statements [4] 

 5/23 6/6 120/15

 148/14

states [27] 1/2

 1/13 2/2 6/17 18/7

 18/12 18/15 28/7

 50/3 50/12 51/25

 53/1 74/15 86/14

 86/16 86/18 86/19

 87/2 87/4 87/10

 88/19 88/21

 124/18 126/3

 126/4 161/3

 182/10

stations [1] 140/3

statistics [1] 

 147/5

status [1] 171/6

statute [3] 21/8

 175/9 176/5

statutory [1] 

 103/17

stay [8] 22/25

 23/3 23/4 131/4

 177/17 177/18

 177/21 181/24

stayed [1] 86/2

steadily [1] 97/24

step [7] 53/19

 53/21 77/23

 130/18 133/21

 133/22 176/25

stepping [1] 

 175/15

steps [2] 53/10

 53/22

sticker [1] 11/22

stipulate [3] 5/1

 5/21 8/12

stipulated [1] 

 11/23

stipulation [4] 

 5/24 6/20 26/20

 32/11

stipulations [2] 

 4/11 4/23

store [1] 127/7

stores [18] 56/10

 56/11 61/6 61/14

 87/22 88/23 89/2

 90/18 90/20

 124/20 126/1

 126/11 126/22

 127/11 135/20

 168/18 168/21

 168/22

strain [1] 101/17

strategy [1] 85/11

strawberry [2] 

 44/22 45/2

streamline [1] 

 76/1

streamlined [1] 

 93/24

Street [1] 1/22

strength [12] 

 133/22 133/22

 162/18 162/19

 162/24 162/24

 162/25 163/10

 163/16 163/19

 163/22 163/22

STRESSENGER

 [2] 1/21 3/19

stripped [1] 143/3

strong [8] 9/13

 11/7 134/20

 134/21 142/10

 144/7 154/6 167/1

structures [1] 

 121/18

studies [3] 28/2

 94/24 113/6

style [2] 65/5

 93/24

stylized [3] 135/1

 178/12 178/13

subcategory [1] 

 64/10

subclass [1] 93/5

subfactors [1] 

 132/10

subjective [3] 

 134/7 134/9

 134/10

submissions [1] 

 11/13

submit [2] 161/9

 173/14

submitted [7] 4/5

 5/16 5/18 25/16

 32/1 136/5 136/21

subsection [1] 

 116/1

subsequent [2] 

 132/8 133/4

subsidiary [1] 

 137/2

substance [3] 

 19/7 28/17 115/19

substances [4] 

 92/17 92/24 135/9

 135/9

substantial [20] 

 23/21 24/2 24/3

 24/12 24/12 25/1

 25/2 25/11 131/6

 149/14 151/7

 152/15 153/5

 157/19 157/22

 158/17 159/2

 159/7 169/1 174/7

substantially [2] 

 150/25 153/25

substantive [1] 

 131/6

substitute [2] 

 82/21 83/3

substitutes [1] 

 147/14

subsumed [1] 

 132/11

success [16] 

 129/11 131/7

 132/11 142/12

 148/17 148/19

 149/13 149/18

 153/21 153/23

 154/5 157/18

 158/3 158/18

 159/2 174/8

successful [2] 

 123/11 129/9

successfully [1] 

 41/4

sudden [1] 

 151/17

suddenly [1] 

 22/13

sufficient [9] 

 69/21 70/19 98/6

 98/6 99/21 133/1

 139/12 170/20

 177/22

suggest [1] 

 131/22

suggested [1] 

 131/23

suggestion [2] 

 101/22 180/9

suggestions [1] 

 4/12

suggestive [6] 

 134/5 134/9

 134/10 134/18

 134/19 162/20

suggests [1] 

 167/1

suit [1] 46/11

Suite [2] 1/22

 1/24

suits [1] 13/1

sum [3] 70/17

 70/18 106/12

summarizing [1] 

 142/24

summary [3] 33/9

 68/6 154/3

summer [3] 70/24

 87/24 99/21

supplement [1] 

 127/15

supplier [6] 22/25

 23/4 25/19 26/2

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supplier... [2] 

 70/20 76/6

suppliers [3] 24/1

 87/17 98/15

supply [7] 71/1

 98/6 98/9 99/20

 99/20 102/10

 155/20

support [1] 149/9

supports [2] 

 153/3 159/9

Supreme [2] 

 139/8 161/10

survey [3] 110/5

 110/5 163/15

surveys [9] 92/2

 109/8 109/8

 109/15 109/16

 109/25 110/1

 110/15 113/5

survival [1] 143/8

sustain [5] 49/23

 78/21 81/10

 109/22 120/13

sustained [1] 

 109/12

SV3 [1] 1/9

swear [1] 125/12

switch [1] 102/9

switched [1] 69/8

sword [1] 176/13

sworn [6] 12/18

 12/20 54/11 84/21

 84/22 125/14

sympathize [1] 

 139/23

system [39] 25/20

 25/22 25/22 25/24

 26/3 28/6 28/8

 29/16 31/2 31/22

 33/5 33/9 35/5

 35/12 36/6 36/10

 37/17 37/19 37/22

 43/12 43/15 58/12

 58/14 58/18 59/1

 63/22 63/23 63/23

 64/2 64/19 65/16

 80/13 80/22 93/19

 94/3 97/15 100/14

 106/6 137/24

systems [7] 24/23

 30/3 31/7 42/17

 64/7 86/5 93/21

T

table [3] 9/18

 12/25 97/8

tank [1] 63/25

tanks [1] 93/22

target [5] 21/14

 53/22 92/12 92/14

 92/18

tasked [1] 52/5

tax [1] 14/10

Tech [1] 13/15

technical [1] 

 63/24

Technically [1] 

 43/20

technologically

 [1] 93/24

technology [9] 

 1/7 3/6 32/7 32/22

 48/8 104/15

 104/18 104/19

 172/19

Teledyne [1] 

 10/13

temper [1] 153/24

temporal [2] 

 172/17 172/22

temporarily [1] 

 7/7

tentatively [1] 6/1

Tenth [2] 173/8

 173/18

term [15] 18/18

 20/12 38/7 38/13

 39/5 39/13 42/6

 42/7 42/14 49/5

 49/6 49/8 71/19

 112/18 162/21

terminology [1] 

 18/14

terms [11] 5/3

 61/22 98/16 98/17

 101/13 102/21

 121/3 154/12

 157/18 159/21

 163/4

terribly [1] 43/5

test [4] 103/18

 159/1 160/22

 160/23

testimony [46] 

 3/25 7/25 8/13

 9/19 34/7 43/18

 54/3 60/10 66/19

 73/11 83/21 89/17

 109/3 109/4

 109/18 111/9

 113/10 114/13

 122/17 122/21

 124/12 124/19

 126/8 126/12

 131/18 132/25

 136/7 137/25

 140/18 146/22

 146/24 147/14

 150/6 150/19

 151/15 152/19

 153/3 154/17

 155/15 163/1

 163/24 168/17

 168/25 170/13

 172/13 178/15

text [4] 141/7

 141/13 141/25

 165/21

thank [60] 3/16

 4/10 5/11 6/11

 10/21 12/16 41/8

 41/9 41/24 53/24

 54/1 54/2 54/3

 63/10 66/8 70/1

 72/23 73/6 76/3

 76/14 77/22 78/1

 83/5 83/6 83/10

 83/11 84/13 85/4

 95/4 96/2 104/5

 113/12 114/18

 116/10 122/10

 122/12 123/18

 123/20 123/21

 125/8 127/13

 130/17 130/19

 131/10 131/11

 131/15 134/10

 146/4 150/8

 158/24 164/14

 170/23 176/23

 178/2 178/7 180/5

 181/20 181/21

 181/25 182/2

thanks [2] 113/14

 150/17

THC [2] 92/21

 92/23

theme [1] 142/20

thereafter [1] 

 86/16

thetobaccologblo

g.com [1] 16/1

thickness [1] 

 133/13

thinking [4] 35/10

 51/1 141/7 146/10

Thompson [2] 

 1/21 3/18

thought [2] 4/25

 175/6

thousand [3] 51/6

 51/8 90/25

thousands [3] 

 51/2 126/22

 168/22

threaded [2] 

 117/11 117/12

threat [1] 73/16

threshold [2] 

 157/21 175/18

throw [2] 64/25

 65/5

thrown [1] 135/18

thus [1] 20/10

tied [1] 102/9

til [1] 84/5

time [72] 4/2 4/22

 4/25 5/4 9/2 9/4

 12/18 13/24 14/18

 14/22 23/2 23/5

 23/16 27/6 41/17

 51/25 51/25 55/16

 57/11 57/19 64/25

 65/3 65/19 70/10

 70/18 70/22 70/24

 71/1 72/21 73/6

 87/24 88/3 88/10

 88/12 88/13 89/7

 89/7 91/7 91/7

 93/21 94/18 94/24

 95/5 97/23 98/5

 99/3 101/18

 107/11 111/9

 111/24 112/1

 112/2 112/3 112/4

 112/6 112/8

 112/10 118/20

 124/18 131/12

 131/14 133/6

 137/25 138/1

 138/8 138/9 139/7

 139/8 164/6 172/5

 180/5 180/12

timeframe [2] 

 14/17 107/10

timeline [1] 62/18

times [6] 16/8

 23/8 100/5 101/8

 106/18 165/25

timing [1] 159/21

title [3] 54/22

 85/9 85/10

TMA [2] 16/15

 16/23

tobacco [80] 

 13/25 14/8 14/10

 14/12 16/16 16/24

 17/3 18/3 18/4

 18/6 18/8 18/9

 18/10 18/11 18/19

 18/21 18/22 18/23

 18/25 19/2 19/10

 19/10 19/11 19/13

 19/13 19/14 19/23

 19/24 20/3 20/5

 20/6 20/23 23/21

 23/23 23/25 27/9

 27/13 27/21 28/1

 28/9 28/19 29/1

 29/3 29/6 29/12

 29/12 30/1 30/3

 38/5 38/14 38/16

 38/18 38/18 38/21

 38/24 39/4 39/16

 39/17 40/10 40/12

 40/25 41/2 43/16

 43/19 43/21 44/5

 44/5 44/8 44/23

 46/3 50/23 51/1

 51/7 51/10 52/25

 53/14 94/20 94/22

 100/22 103/17

today's [1] 4/4

tolerate [1] 

 140/22

ton [2] 117/24

 152/17

tone [1] 142/24

topic [5] 15/21

 16/7 16/20 27/21

 127/16

topics [1] 104/12

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total [15] 50/21

 61/9 70/12 83/18

 85/23 96/14 105/1

 105/2 105/6

 106/11 106/12

 106/21 118/22

 140/1 140/3

totals [2] 96/13

 97/18

touch [1] 10/3

Toward [1] 57/22

towards [2] 94/11

 175/10

toxic [2] 99/12

 156/3

tracks [1] 39/10

trademark [43] 

 4/23 6/5 6/9 78/4

 78/25 113/24

 113/25 128/18

 132/14 137/3

 137/11 137/16

 138/13 139/5

 139/15 140/7

 140/22 140/24

 141/22 142/15

 143/3 143/6

 145/14 145/22

 146/2 146/20

 148/25 160/10

 160/20 161/18

 161/19 162/4

 162/11 165/8

 165/10 165/14

 170/2 173/1

 174/15 174/22

 176/15 179/9

 179/10

trademarks [9] 

 78/3 78/6 78/13

 78/15 78/23

 113/22 129/12

 139/1 139/3

traditional [2] 

 65/23 92/16

trajectory [7] 

 60/14 97/21

 151/14 151/15

 151/16 152/20

 154/22

transaction [1] 

 170/15

transcript [5] 

 1/12 7/24 142/3

 180/19 181/2

transcription [1] 

 182/6

transition [3] 

 92/15 94/10 95/10

transitioned [1] 

 93/23

transitioning [1] 

 95/8

trash [1] 64/25

travel [2] 83/25

 84/3

treat [1] 7/5

trending [1] 

 147/18

trial [2] 152/24

 162/11

trip [1] 86/2

Troutman [1] 

 13/9

truncated [1] 

 167/22

trust [2] 72/17

 119/24

TUCKER [2] 1/23

 3/20

turning [1] 30/11

TV [1] 134/15

Twenty [1] 106/1

Twenty-five [1] 

 106/1

twice [1] 17/5

two-year [1] 

 123/9

typical [3] 43/9

 43/9 94/3

typically [11] 9/8

 10/25 30/4 44/7

 47/14 47/18 49/9

 53/10 53/21 77/16

 181/8

U

U.S [25] 2/2 10/14

 10/19 22/23 39/22

 48/22 50/7 50/7

 50/12 50/16 51/13

 71/20 99/19

 121/23 122/24

 137/17 139/11

 139/11 139/19

 139/21 140/9

 140/12 157/7

 177/14 182/10

U.S.A [1] 1/9

Uh [1] 78/9

Uh-huh [1] 78/9

Ultacashmere [1] 

 173/12

ultimate [3] 20/17

 151/19 177/4

ultimately [3] 

 23/6 23/12 23/17

unauthorized [2] 

 38/5 45/4

uncertainty [1] 

 174/6

unclear [2] 9/16

 175/14

uncommon [1] 

 148/25

undercuts [1] 

 162/7

understanding

 [11] 7/13 33/10

 36/5 49/8 62/18

 63/21 71/16 81/1

 81/3 120/8 128/5

understating [1] 

 152/4

unequivocally [1] 

 88/20

Unfair [1] 176/5

Unfortunately [1] 

 82/5

unique [2] 157/9

 173/6

UNISHOW [1] 1/9

UNITED [25] 1/2

 1/13 2/2 6/17 18/6

 18/11 18/15 28/7

 50/3 50/12 53/1

 53/5 74/15 86/13

 86/16 86/18 86/19

 87/9 88/19 88/21

 124/18 126/3

 126/4 161/3

 182/10

University [3] 

 13/16 170/18

 170/19

unlawful [17] 

 22/18 34/12 34/14

 143/23 144/20

 144/24 145/4

 145/6 146/3

 146/11 150/13

 158/6 158/12

 158/20 170/24

 173/2 175/12

unless [3] 27/10

 140/15 144/6

unlike [2] 8/8

 78/24

unlikelihood [1] 

 150/15

unlikely [2] 92/6

 173/19

Unlimited [1] 

 71/14

unprotectable [1] 

 134/6

unquote [4] 19/9

 24/8 28/9 28/24

unrelated [1] 11/3

unreputable [1] 

 98/22

untrue [1] 102/4

upper [2] 48/13

 80/5

ups [3] 99/9

 162/2 162/5

upset [1] 127/8

URL [1] 48/24

us [19] 5/16 5/20

 11/22 30/8 66/23

 75/25 77/3 93/25

 109/9 111/20

 118/22 122/3

 139/18 160/25

 170/24 173/2

 177/17 181/9

 181/19

usage [1] 65/22

user [4] 63/25

 64/3 66/5 137/5

users [3] 76/2

 92/21 164/17

USPTO [4] 137/9

 137/11 145/18

 161/4

usual [1] 148/12

Uwell [15] 32/7

 32/21 33/3 33/4

 33/5 35/1 35/16

 35/20 35/20 36/6

 36/24 37/7 48/8

 49/2 115/5

Uwell's [2] 33/7

 33/16

V

vacuum [1] 109/1

vagaries [1] 

 175/8

valid [5] 139/13

 159/14 173/1

 174/15 176/15

validity [3] 132/25

 133/1 159/17

value [2] 163/1

 169/12

vape [49] 60/24

 61/1 61/2 61/7

 62/25 63/6 76/20

 82/18 85/8 85/10

 85/10 85/12 85/14

 85/17 85/19 85/22

 85/25 86/21 87/2

 87/6 87/8 87/21

 88/10 90/16 97/22

 101/5 101/15

 101/23 104/15

 104/18 104/19

 105/1 105/2 107/7

 114/5 114/24

 115/3 117/23

 118/19 122/8

 123/13 123/15

 126/1 126/19

 136/4 137/22

 137/24 168/19

 168/22

Vape's [5] 85/16

 89/4 96/22 107/22

 135/13

vaped [1] 49/7

vapes [1] 136/12

vaping [2] 79/9

 115/19

vapor [3] 1/10

 16/4 55/5

vaporize [1] 

 135/8

vaporizer [7] 19/6

 20/10 29/1 29/3

 29/4 86/1 117/7

vaporizers [9] 

 20/14 31/2 31/2

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vaporizers... [6] 

 38/10 61/5 92/17

 100/14 128/23

 132/20

variance [1] 

 43/16

variant [5] 43/21

 44/5 44/8 44/20

 44/21

variants [4] 43/19

 45/13 82/15 92/25

variations [1] 

 135/12

varies [1] 119/2

variety [7] 22/5

 40/17 46/1 51/3

 80/12 106/6 135/8

vast [2] 89/6

 145/11

version [6] 36/7

 36/7 107/17 135/1

 178/12 178/14

versions [3] 36/6

 36/9 155/16

versus [10] 3/6

 10/13 10/18 64/7

 65/16 135/18

 157/23 171/6

 171/10 173/24

via [2] 40/4 89/17

vicinity [1] 148/24

victims [1] 179/3

video [3] 11/20

 107/16 178/9

violated [2] 176/4

 176/5

violation [3] 

 40/22 174/12

 176/21

violators [1] 

 46/21

Virginia [2] 13/15

 13/19

virtue [1] 37/20

vis [6] 21/14

 21/14 52/1 52/1

 163/5 163/5

visit [8] 60/24

 61/14 61/17 62/25

 90/16 90/20 90/22

 91/5

visited [2] 35/14

 61/19

Voice [1] 16/5

void [9] 72/12

 101/24 103/1

 147/1 147/12

 147/13 154/18

 154/20 155/8

volume [1] 60/11

voluntarily [1] 

 69/22

VPR [24] 1/4 3/5

 3/12 3/12 38/25

 39/8 40/21 47/10

 57/1 57/5 57/7

 60/4 62/7 88/7

 89/13 89/20 92/9

 114/10 118/4

 128/21 132/18

 171/19 174/16

 176/11

VPR's [16] 38/6

 38/13 39/7 39/12

 62/11 63/15 88/1

 91/2 91/8 91/13

 91/17 91/22 92/1

 100/10 101/22

 128/5

vs [1] 1/6

VTA [1] 104/19

Vuse [1] 88/23

W

wall [1] 151/17

warning [34] 

 17/16 20/14 20/17

 20/22 29/21 29/24

 30/4 30/5 32/5

 32/6 32/21 35/2

 37/23 38/2 40/4

 43/7 45/17 45/20

 45/24 46/3 46/25

 47/9 47/11 47/18

 47/20 48/9 48/17

 49/12 49/20 50/3

 50/10 53/18 53/22

 140/13

warrant [2] 9/24

 69/21

warrants [2] 9/13

 11/7

Warren [1] 79/18

Washington [1] 

 1/22

wasting [1] 

 140/15

web [1] 49/4

website [28] 33/7

 33/16 33/21 35/14

 35/16 35/20 36/8

 36/25 37/7 37/16

 47/10 48/18 48/21

 50/6 107/15

 107/22 107/23

 111/15 113/18

 114/1 114/24

 115/3 115/25

 119/1 126/2

 147/18 167/21

 178/25

websites [9] 33/8

 50/15 52/23 62/2

 91/5 91/10 135/13

 135/20 136/11

weekly [2] 61/24

 62/2

WEIBOLI [17] 1/7

 3/6 74/18 74/22

 75/2 75/5 75/15

 81/2 81/21 120/22

 120/22 120/23

 121/9 121/23

 122/3 122/7 161/3

weigh [2] 167/5

 171/4

weighed [2] 

 93/16 159/5

weighing [3] 

 166/17 166/18

 171/17

weighs [2] 160/17

 171/16

weight [2] 162/10

 169/23

welcome [3] 10/8

 127/15 177/22

well-being [1] 

 156/4

Westlaw [3] 

 146/13 148/10

 148/10

whatsoever [4] 

 133/25 134/12

 163/8 174/15

whenever [2] 

 131/13 175/4

whereas [1] 64/2

wherever [1] 63/1

wholesale [6] 

 55/20 80/5 128/7

 128/9 128/10

 136/17

wide [3] 24/22

 106/5 153/15

wider [1] 93/22

wish [6] 10/6

 10/24 110/2 120/2

 120/2 181/6

wishes [2] 4/8

 131/23

withdrawn [1] 

 149/19

witnesses [9] 5/8

 7/16 11/14 123/24

 124/20 126/20

 129/3 155/1 168/3

world [3] 1/8 85/8

 178/13

worldwide [2] 

 6/18 169/16

worth [2] 137/22

 151/12

wrap [3] 64/4

 177/6 178/4

writings [1] 15/24

X

Xerox [2] 133/24

 134/2

Y

Y-E-A-R-N [1] 

 33/5

Yearn [3] 33/5

 35/20 36/6

Yep [1] 108/15

YLSN [1] 1/8

York [1] 85/15

yours [1] 61/22

Z

zero [2] 152/13

 154/4

Zoom [8] 4/6 5/19

 5/25 8/9 79/19

 89/17 136/21

 178/16

Thursday, December 1st, 2022 12/1/2022

Page 209

 VPR BRANDS, LP vs. SHENZHEN WEIBOLI TECH Case 9:22-cv-81576-AMC Document 60 Entered on FLSD Docket 12/14/2022 Page 209 of 209