Case 2:17-cv-00467-JDL Document 49 Filed 07/31/20 Page 1 of 15 PageID #: 828 

UNITED STATES DISTRICT COURT 

DISTRICT OF MAINE 

FEDERAL TRADE ) 

COMMISSION, et al., ) 

) 

Plaintiffs, ) 

) 

v. ) 2:17-cv-00467-JDL 

) 

HEALTH RESEARCH ) 

LABORATORIES, LLC, et al., ) 

) 

Defendants. ) 

ORDER 

The Federal Trade Commission and the State of Maine (collectively, 

“Plaintiffs”) bring this civil contempt proceeding against Health Research 

Laboratories, LLC, Kramer Duhon, and Whole Body Supplements, LLC (collectively, 

“Contempt Defendants”), for alleged violations of Section II.H of the Stipulated Final 

Judgment and Order previously entered in this action (“the Judgment”). In addition 

to moving for an Order to Show Cause (ECF No. 21), the Plaintiffs move to modify 

the Judgment (ECF No. 22). Health Research Laboratories and Duhon cross-move to 

modify the Judgment (ECF No. 30), and the Contempt Defendants move to stay the 

contempt proceedings until the cross-motions to modify the Judgment are resolved 

(ECF No. 31). Pursuant to my orders dated April 1 and April 8, 2020, I now address 

the threshold question of whether Section II.H of the Judgment is ambiguous on its 

face as a matter of law. For the reasons explained below, I conclude that Section II.H 

is facially ambiguous. 

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I. BACKGROUND 

In a complaint dated November 30, 2017, the Plaintiffs alleged that Duhon and 

his company, Health Research Laboratories, made deceptive health- and diseaserelated claims about several products, including the dietary supplements 

BioTherapex and NeuroPlus. On January 16, 2018, with the consent of the parties, 

I approved and entered the Judgment. The Court retained jurisdiction for purposes 

of construing, modifying, and enforcing the Judgment. 

The Judgment resolved all matters in dispute in the underlying action, 

including the complaint’s allegations that Duhon and Health Research Laboratories 

violated state and federal law “in connection with the labeling, advertising, 

marketing, distribution, and sale of products purported to cause weight loss, treat 

arthritis, relieve joint and back pain, and prevent or mitigate cognitive decline.” ECF 

No. 15 at 2. The Judgment prohibits Health Research Laboratories, Duhon, and 

“officers, agents, employees, and all other persons in active concert or participation 

with any of them, who receive actual notice” of the Judgment, from making several 

categories of representations. E.g., id. at 6. For example, Section I, entitled “Banned 

Weight-Loss Claims,” prohibits seven specific representations about certain products’ 

ability to cause weight loss in consumers. Id. 

Section II is entitled “Prohibited Representations: Other Weight-Loss Claims, 

Joint-Related Disease Claims, and Alzheimer’s Disease, Memory, and Cognitive 

Performance Claims.” Id. at 7. Section II concerns representations not already 

prohibited by Section I which state that any Covered Product: (A) causes weight loss; 

(B) causes fat loss; (C) treats or cures rheumatism, arthritis, or osteoarthritis; (D) 

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relieves joint pain, back pain, or muscle pain; (E) protects the brain against 

Alzheimer’s disease or dementia; (F) reverses memory loss; (G) improves memory, 

concentration, or cognitive performance; or (H) “[c]ures, mitigates, or treats any 

disease.” Id. at 8. The Judgment defines “Covered Products” as “any Dietary 

Supplement, Food, or Drug, including BioTherapex and NeuroPlus.” Id. at 4. In 

addition to providing definitions of “Dietary Supplement,” “Food,” and “Drug,” the 

Judgment specifies that “including” means “including but not limited to.” Id. at 4−5.

Representations covered by Section II are prohibited unless they are “nonmisleading” and substantiated by human clinical testing that is “randomized, doubleblind, . . . placebo-controlled,” and conducted by qualified researchers. Id. at 8−9.

Section III, entitled “Prohibited Representations: Other Health-Related 

Claims,” covers representations “about the health benefits, safety, performance, or 

efficacy of any Covered Product” beyond those representations already prohibited by 

Sections I and II of the Judgment. Id. at 9. Representations covered by Section III

are prohibited unless they are “non-misleading” and are substantiated by competent 

and reliable scientific evidence, which is defined as: 

[T]ests, analyses, research, or studies (1) that have been conducted and

evaluated in an objective manner by experts in the relevant disease,

condition, or function to which the representation relates; (2) that are 

generally accepted by such experts to yield accurate and reliable results;

and (3) that are randomized, double-blind, and placebo-controlled

human clinical testing of the Covered Product, or of an Essentially

Equivalent Product, when such experts would generally require such

human clinical testing to substantiate that the representation is true. 

Id. at 9−10.

Additionally, Section IV prohibits certain misrepresentations about scientific 

evidence made in connection with any Covered Product, and Section VII prohibits 

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certain misrepresentations about endorsements of Covered Products. Finally, 

Section VIII prohibits seven specific misrepresentations made “in connection with the 

advertising, marketing, promotion, offering for sale, sale, or distribution of any good 

or service.” Id. at 14. 

The Plaintiffs contend that the Contempt Defendants violated Section II.H of 

the Judgment by making unsubstantiated claims that four products—Neupathic, 

Black Garlic Botanicals, BG18, and The Ultimate Heart Formula—cure, treat, or 

mitigate the following diseases: diabetes, diabetic neuropathy, cardiovascular 

disease, atherosclerosis, and hypertension. The Contempt Defendants respond that 

Section II.H was not intended to cover representations relating to diabetes, diabetic 

neuropathy, cardiovascular disease, atherosclerosis, and hypertension. In keeping 

with my procedural order dated April 8, 2020, I now address whether the scope of 

Section II.H is facially ambiguous. 

II. LEGAL STANDARD 

When determining the scope of a consent decree such as the Judgment, courts 

apply “[o]rdinary contract principles.” Navarro-Ayala v. Hernández-Colón, 951 F.2d

1325, 1339 (1st Cir. 1991). Disputed terms are read “in the context of the decree as 

a whole.” Quinn v. City of Boston, 325 F.3d 18, 30 (1st Cir. 2003) (citing Newport 

Plaza Assocs. v. Durfee Attleboro Bank, 985 F.2d 640, 646 (1st Cir. 1993)). Courts 

consider the language contained within the “four corners” of the decree along with 

the circumstances surrounding its formation, any technical meaning the words used 

may have had to the parties, and any other documents expressly incorporated in the 

decree. United States v. Charter Int’l Oil Co., 83 F.3d 510, 516−17 (1st Cir. 1996)

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(citing United States v. Armour & Co., 402 U.S. 673, 681−82 (1971) and United States 

v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975)). If the text of a decree is 

ambiguous, extrinsic evidence of the parties’ intent may be considered to resolve the 

ambiguity. See id. at 519 (citing Brennan v. Carvel Corp., 929 F.2d 801, 808 (1st Cir.

1991)); Navarro-Ayala, 951 F.2d at 1343 n.21. A consent decree is ambiguous if it is

“susceptible to reasonable alternative interpretations.” Converse Inc. v. Reebok Int’l 

Ltd., 328 F. Supp. 2d 166, 176 (D. Mass. 2004) (citing Sportfolio Publ’ns, Inc. v. AT & 

T Corp., 320 F.3d 75, 79 (1st Cir. 2003)).

Similarly, under Maine law, contracts are interpreted “in accordance with the 

intention of the parties, which is to be ascertained from an examination of the whole 

instrument.” Dow v. Billing, 224 A.3d 244, 249 (Me. 2020) (quoting Am. Prot. Ins. Co. 

v. Acadia Ins. Co., 814 A.2d 989, 993 (Me. 2003)). “All parts and clauses must be 

considered together [so] that it may be seen if and how one clause is explained, 

modified, limited or controlled by the others.” Id. (quoting Am. Prot. Ins., 814 A.2d 

at 993). Ultimately, contracts are construed “to give effect to the plain meaning of

the words used in the contract and avoid rendering any part meaningless.” Id. (citing 

Scott v. Fall Line Condo. Ass’n, 206 A.3d 307, 311 (Me. 2019)). If a contract “contains

an ambiguity that cannot be resolved from the four corners of the document, the 

interpretation of the ambiguous language becomes a question for the fact-finder to 

resolve by taking extrinsic evidence.” Id. (citing In re Estate of Barrows, 913 A.2d

608, 613 (Me. 2006)). Contractual language is ambiguous if it is “reasonably 

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susceptible of different interpretations.” Williams v. Williams, 161 A.3d 710, 713 

(Me. 2017) (quoting Am. Prot. Ins., 814 A.2d at 993).1 

The determination of facial ambiguity is “particularly important” in a civil 

contempt proceeding. Converse Inc., 328 F. Supp. 2d at 176. “Civil contempt may be 

imposed to compel compliance with a court order or to compensate a party harmed by 

non-compliance.” United States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005) (citing

McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). “To prove civil 

contempt, a movant must show that (1) the alleged contemnor had notice of the order, 

(2) ‘the order was clear and unambiguous,’ (3) the alleged contemnor ‘had the ability 

to comply with the order,’ and (4) the alleged contemnor violated the order.” Hawkins 

v. Dep’t of Health & Human Servs., 665 F.3d 25, 31 (1st Cir. 2012) (quoting Saccoccia, 

433 F.3d at 27). When evaluating whether a court order is “clear and unambiguous,” 

the question is “not whether the order is clearly worded as a general matter.” 

Saccoccia, 433 F.3d at 28. Instead, the “clear and unambiguous” prong “requires that 

the words of the court’s order have clearly and unambiguously forbidden the precise 

1 The parties cite Maine law to identify the applicable principles of contract interpretation. Several 

circuits and some district courts in the First Circuit have applied state contract law when interpreting

consent decrees such as the Judgment. See, e.g., Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 

940 F.3d 222, 229 (6th Cir. 2019), cert. denied, No. 19-1079, 2020 WL 2515510 (U.S. May 18, 2020); 

Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1252 (11th Cir. 2008); Collins v. Thompson, 8 F.3d 657, 

659 (9th Cir. 1993); NAACP v. Donovan, Civil Action No. 78-850-DPW, 2009 WL 792301, at *11 (D.

Mass. Mar. 17, 2009). The First Circuit has not explicitly opined on whether the relevant contract

principles derive from state law or federal law, but it has consistently applied federal-law precedents

when determining the scope of consent decrees. See, e.g., Quinn, 325 F.3d at 30; Charter Int’l, 83 F.3d 

at 516−19; Lamphere v. Brown Univ., 875 F.2d 916, 920−21 (1st Cir. 1989); see also Equova Water, 940

F.3d at 236−45 (Bush, J., concurring) (persuasively advocating for the federal-law approach). Even 

under the federal-law approach, however, state law can provide useful guidance. See Equova Water, 

940 F.3d at 243 (Bush, J., concurring). Additionally, the contract principles set forth in the precedents

of both the First Circuit and the Maine Law Court are substantially equivalent. For these reasons, I 

consider both state and federal precedents in determining whether the Judgment is facially 

ambiguous. 

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conduct on which the contempt allegation is based.” Id. (emphasis omitted) (citing 

Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)). Indeed, the language of

the order must leave “no reasonable doubt” that the allegedly contumacious conduct 

is prohibited. Id. (quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir. 1991)).

Because there is significant overlap between the question of whether Section 

II.H of the Judgment is facially ambiguous under ordinary principles of contract 

interpretation and the question of whether Section II.H, on its face, clearly and 

unambiguously prohibits the Contempt Defendants’ allegedly contumacious conduct, 

this Order addresses both questions.2 

III. DISCUSSION 

The Plaintiffs contend that the Contempt Defendants violated Section II.H by 

making unsubstantiated claims that four Covered Products—Neupathic, Black 

Garlic Botanicals, BG18, and The Ultimate Heart Formula—cure, treat, or mitigate 

the following diseases: diabetes, diabetic neuropathy, cardiovascular disease, 

atherosclerosis, and hypertension. Section II.H of the Judgment prohibits 

representations that any Covered Product “cures, mitigates, or treats any disease” 

unless the representations are non-misleading and substantiated by human clinical 

testing that is randomized, double-blind, placebo-controlled, and conducted by 

qualified researchers, as outlined above. ECF No. 15 at 8. 

2 This Order does not finally determine whether Section II.H “clearly and unambiguously” prohibited 

the “precise conduct” on which the Plaintiffs’ contempt allegations are based. Saccoccia, 433 F.3d at 

28. At the conference of counsel held on April 8, 2020, the Plaintiffs suggested that, in their view,

extrinsic evidence is admissible in the civil contempt proceeding for the purpose of determining

whether Section II.H is clear and unambiguous. If the Plaintiffs intend to press this argument, they

shall inform the Court at the next conference of counsel, to be scheduled by the Clerk of Court, and 

the Court will set a briefing schedule on the admissibility of extrinsic evidence for this purpose. 

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The Plaintiffs assert that the phrase “any disease” in Section II.H, on its face, 

clearly and unambiguously encompasses all diseases, including diabetes, diabetic 

neuropathy, cardiovascular disease, atherosclerosis, and hypertension. The 

Plaintiffs’ argument comports with the plain meaning of the phrase “any disease.” 

This is powerful evidence supporting the Plaintiffs’ interpretation, but it is not 

dispositive on its own: I must read Section II.H “in the context of the [Judgment] as 

a whole,” not in isolation. Quinn, 325 F.3d at 30 (citing Newport Plaza Assocs., 985 

F.2d at 646). 

The Contempt Defendants assert that Section II.H, on its face, does not clearly 

and unambiguously prohibit representations relating to diabetes, diabetic 

neuropathy, cardiovascular disease, atherosclerosis, and hypertension. Rather, the 

Contempt Defendants contend that the phrase “any disease” in Section II.H 

encompasses only diseases involving or relating to weight loss, joint disease, 

Alzheimer’s disease, memory, and cognitive decline. They argue that the Plaintiffs’ 

broad interpretation of the phrase “any disease” is unsupported by the purpose, 

structure, and text of the Judgment as a whole. I evaluate each of the Contempt 

Defendants’ arguments in turn. 

A. Purpose 

The Judgment’s stated purpose was “to resolve all matters in dispute in this 

action between them, including the allegations in the Complaint.” ECF No. 15 at 2. 

The Judgment thus sought to resolve the complaint’s allegations that Duhon and 

Health Research Laboratories violated state and federal law in connection with the 

“labeling, advertising, marketing, distribution, and sale of products purported to 

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cause weight loss, treat arthritis, relieve joint and back pain, and prevent or mitigate 

cognitive decline.” Id. As such, the Contempt Defendants assert that the Judgment 

was only intended to prohibit representations relating to weight loss, arthritis, joint 

and back pain, and cognitive decline. 

Contrary to the Contempt Defendants’ argument, the Judgment as a whole 

reflects an intent to enjoin conduct beyond the conduct alleged in the complaint. For 

example, although the complaint’s allegations related primarily to the products 

BioTherapex and NeuroPlus, Section I of the Judgment prohibits certain 

representations relating to “any Dietary Supplement, over-the-counter Drug, patch, 

cream, wrap, or other product worn on the body or rubbed into the skin.” Id. at 6. 

Similarly, Sections II, III, IV and VII enjoin certain representations relating to “any 

Covered Product,” which is defined as “any Dietary Supplement, Food, or Drug,” 

including but not limited to BioTherapex and NeuroPlus. Id. at 4, 7, 9, 10, 13; see 

also id. at 5 (defining “including” as “including but not limited to”). Further, Section 

VIII prohibits certain misrepresentations relating to “any good or service,” which 

plainly encompasses a broader scope of representations than those alleged in the 

complaint. Id. at 14. 

Additionally, although the Judgment characterized the complaint’s allegations 

as related to representations about certain products’ ability to “cause weight loss, 

treat arthritis and relieve joint and back pain, and prevent or mitigate cognitive 

decline,” id. at 2, the Judgment as a whole encompasses representations about other 

health benefits and conditions as well. For example, Section III prohibits “any 

representation about the health benefits, safety, performance, or efficacy of any 

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Covered Product,” unless the representation is non-misleading and substantiated by 

competent and reliable scientific evidence. Id. at 9. Further, Section IV.B enjoins

misrepresentations that “the performance or benefits of any Covered Product are 

scientifically or clinically proven or otherwise established,” id. at 10, and Section IV.C 

prohibits misrepresentations about the “existence, contents, validity, results, 

conclusions, or interpretations of any test, study, or other research,” id. at 11. 

Sections VII and VIII similarly enjoin certain misrepresentations regardless of 

whether the representations relate to weight loss, arthritis, joint and back pain, or 

cognitive decline. 

Because the text of the Judgment plainly enjoins a broader scope of conduct 

than the conduct alleged in the complaint, the Plaintiffs’ interpretation of Section 

II.H to encompass diseases beyond those discussed in the complaint is consistent with 

the purpose of the Judgment. 

B. Structure 

The Contempt Defendants further assert that the Plaintiffs’ broad 

interpretation of the phrase “any disease” in Section II.H is inconsistent with the 

structure of the Judgment because it would render Section III’s prohibition on “Other 

Health-Related Claims” redundant and therefore meaningless. However, Section III 

prohibits a broader swath of representations than Section II.H: Section III prohibits 

misleading or unsubstantiated representations about “the health benefits, safety, 

performance, or efficacy of any Covered Product,” id. at 9, whereas Section II.H

prohibits only misleading or unsubstantiated representations that any Covered 

Product “[c]ures, mitigates, or treats any disease,” id. at 8. As such, Section III 

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retains legal force and effect even if the phrase “any disease” is interpreted to include 

all diseases, as the Plaintiffs suggest. Further, Section III specifies that it pertains 

only to the representations not already covered under Sections I and II. Accordingly, 

Sections II and III are not duplicative even if Section II.H is interpreted broadly.3 

The Contempt Defendants object that at least portions of Section III would be 

rendered nonsensical by an expansive interpretation of Section II.H because Section 

III contains the word “disease,” which would not be appropriate if Section II.H covers 

representations relating to any and all diseases. However, Section II.H covers only 

representations that a Covered Product “[c]ures, mitigates, or treats” a disease. Id. 

at 8. It is plausible that at least some disease-related representations—such as 

representations that a Covered Product prevents a certain disease—would not fall 

within the ambit of Section II.H. Further, it is likely that any disease-related 

representations not covered by Section II.H would fall within the scope of Section III. 

Thus, there is no inconsistency between Section III of the Judgment and a broad 

interpretation of the phrase “any disease” in Section II.H. 

3 The Plaintiffs assert that the canon against surplusage—the principle that courts should avoid

interpretations that render terms in a contract redundant—is only relevant when resolving ambiguity,

not when determining whether a disputed term is ambiguous. The Plaintiffs rely on Ardente v. 

Standard Fire Ins. Co., 744 F.3d 815, 819 (1st Cir. 2019). However, Ardente discusses redundancy

only in the specific context of insurance policies, and it acknowledges that in general, “redundancy

may itself be a form of ambiguity.” Id. Some authorities on contract interpretation similarly suggest

that the canon against surplusage is relevant to the initial determination of ambiguity. See 11 Samuel 

Williston & Richard A. Lord, Williston on Contracts § 32:5 (4th ed. 1990) (classifying the canon against

surplusage as a “primary rule” to be referenced when determining ambiguity); see also OfficeMax Inc. 

v. Sousa, 773 F. Supp. 2d 190, 216 (D. Me. 2011) (applying the canon against surplusage when

discussing contractual ambiguity); Dow, 224 A.3d at 251 (citing Estate of Barrows, 913 A.2d at 611)

(same). In any event, I am unpersuaded by the Contempt Defendants’ arguments relating to the canon 

against surplusage, as discussed above. 

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C. Text 

As mentioned above, the Plaintiffs’ interpretation of the phrase “any disease” 

in Section II.H as encompassing all diseases is consistent with the plain meaning of 

Section II.H. However, the Contempt Defendants contend that the Plaintiffs’ 

interpretation is inconsistent with the text of Section II as a whole, including the 

section heading.4 

Section II’s heading lists three specific categories of “Prohibited 

Representations”: (1) “Other Weight-Loss Claims,” i.e., weight-loss claims not already 

covered by Section I, (2) “Joint-Related Disease Claims,” and (3) “Alzheimer’s Disease, 

Memory, and Cognitive Performance Claims.” Id. at 7. Each category corresponds to 

certain representations prohibited by Sections II.A−G. For example, the “Other

Weight-Loss Claims” referred to in the heading correspond to Section II.A and II.B, 

which prohibit misleading or unsubstantiated representations that any Covered 

Product causes weight loss or fat loss. Id. Similarly, “Joint-Related Disease Claims” 

correspond to Sections II.C and II.D, which prohibit misleading or unsubstantiated 

representations that any Covered Product “[t]reats or cures rheumatism, arthritis, or 

osteoarthritis” or “[r]elieves joint pain, back pain, or muscle pain.” Id. at 8. Finally, 

“Alzheimer’s Disease, Memory, and Cognitive Performance Claims” correspond to 

Sections II.E, II.F, and II.G, which prohibit misleading or unsubstantiated 

4 The Plaintiffs contend that section headings are relevant only when resolving ambiguity, not when 

determining whether a contract term is ambiguous. However, the Plaintiffs rely on authorities

discussing statutory interpretation, not contract interpretation. Although there is some overlap 

between principles of statutory interpretation and principles of contract interpretation, I am 

persuaded by the Defendants’ argument that the section headings are part of the whole document that 

I must consider. See Williston & Lord, Williston on Contracts § 32:5; 5 Margaret N. Kniffin, Corbin 

on Contracts § 24.21(A)(15) (1993 ed.).

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representations that any Covered Product “protects the brain against Alzheimer’s 

disease or dementia,” “reverses memory loss,” or “improves memory, concentration, 

or cognitive performance.” Id. None of the three specific categories listed in the 

section heading corresponds directly to Section II.H, which prohibits misleading or 

unsubstantiated representations that any Covered Product “[c]ures, treats, or 

mitigates any disease.” 

As the Contempt Defendants contend, the Plaintiffs’ broad interpretation of 

Section II.H is not consistent with the entire text of Section II. Interpreting the 

phrase “any disease” in Section II.H as encompassing all diseases would render the 

section heading underinclusive: The section heading enumerates the categories of 

representations prohibited by Sections II.A−G but does not account for the broad 

category of representations that would be prohibited by an expansive reading of 

Section II.H. Relatedly, interpreting Section II.H expansively would render the 

section heading misleading because the heading tends to suggest that the scope of 

Section II is limited to representations regarding the enumerated health benefits and 

diseases and does not encompass representations regarding other diseases. 

The Contempt Defendants offer an alternative interpretation of Section II.H 

which avoids these inconsistencies. Under the Contempt Defendants’ interpretation, 

the phrase “any disease” in Section II.H would encompass only diseases involving or 

relating to the health benefits and diseases enumerated in Section II’s heading—i.e., 

diseases involving or relating to weight loss, joint disease, Alzheimer’s disease, 

memory, and cognitive decline. The text of Section II provides some support for this 

interpretation. The close correspondence between the categories in Section II’s 

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heading and the contents of Sections II.A−G suggests that the parties intended to 

delineate the scope of Section II somewhat specifically in the section heading. As 

such, the absence of a category corresponding to Section II.H in the section heading 

could be taken to mean that Section II.H was not intended to expand the scope of 

Section II. In other words, Section II.H reasonably could be interpreted as a catchall provision, covering disease-related representations within the scope of Section II’s 

heading that were not specifically contemplated in Sections II.A−G.5 

D. Conclusion as to Facial Ambiguity 

The Plaintiffs’ interpretation of Section II.H to encompass representations 

relating to all diseases—including diabetes, diabetic neuropathy, cardiovascular 

disease, atherosclerosis, and hypertension—is supported by the plain text and the 

broad purpose of the Judgment. However, the Contempt Defendants’ narrower 

interpretation of Section II.H—which does not encompass representations relating to 

diabetes, diabetic neuropathy, cardiovascular disease, atherosclerosis, and 

hypertension—is also reasonable in light of Section II’s heading. Because Section 

5 The Defendants raise two additional arguments based on the text of Section II, but both are 

unpersuasive. First, the Defendants assert that the Plaintiffs’ interpretation of Section II.H is

inconsistent with the text of Section II because it would render Section II.C redundant. However, the 

Defendants’ proposed interpretation would have the same effect. Thus, any potential redundancy in 

Section II.C is not relevant to my analysis. 

Second, the Defendants assert that the scope of Section II.H is limited by Sections II.A−G under 

the interpretive principle known as ejusdem generis, which provides that “the meaning of a general

term in a contract is limited by accompanying specific illustrations.” Kniffin, Corbin on Contracts § 

24.28. Although Section II.H contains the general phrase “any disease,” Sections II.A−G cannot be

fairly characterized as accompanying specific illustrations of that phrase. For example, Sections II.A, 

II. B, II.D, and II.G cover representations about a Covered Product’s ability to “cause[] . . . weight loss,” 

“cause[] . . . fat loss,” “relieve[] joint pain, back pain, or muscle pain,” and “improve[] memory, 

concentration, or cognitive performance,” respectively. ECF No. 15 at 7−8. Although these

representations could be disease-related in some contexts, they could also appear in contexts unrelated

to any disease. Thus, I conclude that the principle of ejusdem generis does not assist in the 

interpretation of Section II.H. Accordingly, I need not resolve the Plaintiffs’ additional arguments 

regarding ejusdem generis. 

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II.H is susceptible to reasonable alternative interpretations, I conclude that it is 

facially ambiguous. Accordingly, I also conclude that Section II.H does not, on its 

face, clearly and unambiguously cover representations relating to diabetes, diabetic 

neuropathy, cardiovascular disease, atherosclerosis, and hypertension, which form 

the basis for the Plaintiffs’ contempt allegations. 

IV. CONCLUSION 

For the foregoing reasons, I conclude that Section II.H of the Judgment is 

facially ambiguous and does not, on its face, clearly and unambiguously prohibit the 

Contempt Defendants’ allegedly contumacious conduct. In keeping with my Order 

dated April 8, 2020, it is ORDERED that the Clerk shall schedule a video status 

conference to establish the framework by which the pending motions will be 

addressed. 

SO ORDERED. 

Dated: July 31, 2020 

/s/ JON D. LEVY 

CHIEF U.S. DISTRICT JUDGE 

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