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BROWN WHITE & OSBORN LLP 

THOMAS M. BROWN (Bar No. 117449) 

KENNETH P. WHITE (Bar No. 173993) 

CALEB E. MASON (Bar No. 246653) 

MATTHEW G. WHITTEN (Bar No. 307410) 

333 South Hope Street, 40th Floor 

Los Angeles, California 90071-1406 

Telephone: 213. 613.0500 

Facsimile: 213.613.0550 

Attorneys for Defendants 

P-COVE ENTERPRISES INC. dba

BUYERS CONSULTATION SERVICE, 

ENVIRONMENTAL LIQUIDATION, INC., 

JONATHAN MANHAN, and 

FRANCIS MICHAEL BAKER 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

FITBIT, INC., 

Plaintiff,

v. 

LAGUNA 2, LLC; 

P-COVE ENTERPRISES INC. dba

BUYERS CONSULTATION SERVICE, 

a California Corporation; 

ENVIRONMENTAL LIQUIDATION, 

INC., a California Corporation; 

JONATHAN MANHAN, an individual; 

FRANCIS MICHAEL BAKER aka 

MIKE BAKER, an individual. 

et al., 

Defendants.

Case No.: 3:17-cv-00079-EMC-KAW 

Judge: Hon. Edward M. Chen 

DEFENDANTS’ OPPOSITION TO 

PLAINTIFF FITBIT, INC.'S MOTION 

FOR PARTIAL SUMMARY 

JUDGMENT 

[CONCURRENTLY FILED: (1) 

DECLARATIONS OF MATTHEW 

WHITTEN, SARAH CADE, and ASHISH

SOOD; and 

(2) Request for Judicial Notice]

Date: June 28, 2018 

Time: 1:30 p.m.

Court: Courtroom 5, 17th Fl. 

Defendants P-Cove Enterprises Inc. dba Buyers Consultation Service (“BCS”); 

Environmental Liquidation, Inc.; Jonathan Manhan and Francis Michael Baker 

(collectively, “Defendants” or “BCS Defendants”) hereby file their Opposition to 

Case 3:17-cv-00079-EMC Document 254 Filed 06/07/18 Page 1 of 31
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Plaintiff Fitbit, Inc.’s Motion for Partial Summary Judgment. This Opposition is 

based on the attached Memorandum of Points and Authorities; the Declarations of 

Matthew Whitten, Sarah Cade, and Ashish Sood filed concurrently; and the Request 

for Judicial Notice filed concurrently; all argument and evidence presented by counsel 

at the hearing on the Motion; and any other facts or evidence of which the Court may 

take judicial notice; the files and records of this case; and such further argument as the 

Court permits. 

DATED: June 7, 2018 Respectfully submitted, 

BROWN WHITE & OSBORN LLP

By

s/Caleb E. Mason

 THOMAS M. BROWN 

KENNETH P. WHITE 

CALEB E. MASON 

MATTHEW G. WHITTEN 

Attorneys for Defendants 

P-COVE ENTERPRISES INC. dba 

BUYERS CONSULTATION SERVICE, 

et al. 

Case 3:17-cv-00079-EMC Document 254 Filed 06/07/18 Page 2 of 31
TABLE OF CONTENTS 

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I. INTRODUCTION ............................................................................................. 1 

II. RELEVANT FACTS ......................................................................................... 2 

A. The Truly Material Facts ......................................................................... 2 

B. Fitbit's Inaccurate and Argumentative Facts ........................................... 4 

1. The Statement of Work ................................................................. 4 

2. The BCS Defendants’ Representations ........................................ 4 

3. L2’s Sale of the Refurbished and Repurposed Products .............. 6 

III. ARGUMENT..................................................................................................... 6 

A. Standard for Summary Judgment ............................................................ 6 

B. The BCS Defendants, Not Fitbit, Are Entitled to Partial Summary 

Judgment on the Contract Claim ............................................................. 7 

C. Fitbit’s Trademark and Unfair Competition Arguments Fail as a Matter 

of Fact and Law ..................................................................................... 12 

1. Fitbit Cannot Prove Trademark Infringement Because the 

Statement of Work Permitted BCS to Repurpose the Fitbit 

Products ....................................................................................... 12 

2. Fitbit’s Demand That the Court Presume Confusion 

 Is Meritless .............................................................12 

3. Fitbit's Cable and Packaging Claims Are Meritless ................... 15 

4. Fitbit Has Not Established Likelihood of Confusion, Let Alone 

Beyond Any Genuine Dispute of Fact ........................................ 16 

5. Fitbit’s Joint and Several Liability Argument Is Meritless ........ 17 

6. Fitbit's Unfair Competition Claims Fail with Its Infringement 

Claim ........................................................................................... 18 

D. Fitbit Fails to Meet Its Burden as to Any Claim, Because It Fails to 

Present Any Admissible Evidence of Damages...........................19 

Case 3:17-cv-00079-EMC Document 254 Filed 06/07/18 Page 3 of 31
TABLE OF CONTENTS 

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E. Defendants’ Evidentiary Objections to Fitbit's Motion for Partial 

Summary Judgment ............................................................................... 18 

1. Defendants’ Objections to the Millar Declaration ...................... 18 

2. Defendants’ Objections to the Bonham Declaration .................. 18 

3. Defendants’ Objections to the Alinder Declaration ................... 21 

IV. CONCLUSION ............................................................................................... 22 

Case 3:17-cv-00079-EMC Document 254 Filed 06/07/18 Page 4 of 31
TABLE OF AUTHORITIES 

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Cases

A.C. v. City of Santa Clara, No. 13-CV-03276-HSG, 2015 WL 5350412 (N.D. Cal. Sept. 14, 2015) ........ 16, 21 

Adobe Systems Inc. v. Blue Source Group, Inc. 125 F.Supp.3d 945 (N.D. Cal. 2015) ..................................................................... 17 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................. 6, 7 

Arizona v. Tohono O'odham Nation, 

 944 F. Supp. 2d 748 (D. Ariz. 2013)....................................................10

Cahill v. Golden Gate Bridge, Highway & Transportation Dist., No. 15-CV-01374-JCS, 2016 WL 1070655 (N.D. Cal. Mar. 18, 2016) ......... 16, 21 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................................. 6 

Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175 (9th Cir. 1988) ................................................................................ 12 

Dore v. Arnold Worldwide, Inc., 39 Cal.4th 384 (2006) .............................................................................................. 9 

El Greco Leather Prods. Co, Inc. v. Shoe World, Inc., 806 F.2d 392 (2d Cir. 1986) ............................................................................. 13, 14 

Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) ............................................................................................... 16 

Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936 (9th Cir. 2011) .................................................................................. 17 

NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506 (9th Cir. 1987) ................................................................................ 14 

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 (9th Cir. 2000) .................................................................................. 7 

Northfolk Water Co. v. Medland, 187 F. 163 (9th Cir. 1911) ........................................................................................ 8 

Parsons v. Bristol Development Co., 62 Cal.2d 861 (1965) ................................................................................... 9, 10, 11 

Rearden LLC v. Rearden Commerce, Inc. 683 F.3d 1190 (9th Cir. 2012) ................................................................................ 12 

Shell Oil Co. v. Winterthur Swiss Ins. Co., 

Case 3:17-cv-00079-EMC Document 254 Filed 06/07/18 Page 5 of 31
TABLE OF AUTHORITIES 

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12 Cal.App.4th 715 (1993) ............................................................................ 8, 9, 14 

Thomas v. Newton Int'l Enters., 42 F.3d 1266 (9th Cir. 1994) .................................................................................. 17 

Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327 (9th Cir. 1983) .................................................................................. 7 

United States v. Farmer, 370 F.3d 435 (4th Cir. 2004) ............................................................................ 13, 14 

Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1 (1995) ............................................................................................. 7, 8 

Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply Inc., 106 F.3d 894 (9th Cir. 1997) .................................................................................. 14 

Wolf v. Superior Court, 114 Cal.App.4th 1343 (2004) ...................................................................... 9, 10, 11 

Statutes

15 U.S.C. § 1114(a)(1) ............................................................................................... 12 

Cal. Civ. Code, § 1638 ................................................................................................. 7 

Cal. Civ. Code, § 1641 ................................................................................................. 8 

Rules

Fed. R. Civ. P. 45(a) .................................................................................................... 7 

Fed. R. Civ. P. 56(c)(2) ................................................................................................ 6 

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MEMORANDUM OF POINTS AND AUTHORITIES 

I. 

INTRODUCTION

 Plaintiff Fitbit, Inc.’s (“Fitbit”) Motion for Partial Summary Judgment (“Fitbit’s 

Motion”) has two goals and fails at both. On the surface, as its first goal, Fitbit’s 

Motion seeks partial summary judgment on its First Claim for Relief for Federal 

Trademark Infringement and Counterfeiting, Third Claim for Relief for Federal Unfair 

Competition, Fourth Claim for Relief for Breach of Contract, and Eighth Claim for 

Relief for California Unfair Competition against Defendants P-Cove Enterprises Inc. 

dba Buyers Consultation Service (“BCS”), Environmental Liquidation, Inc. (“ELI”), 

Jonathan Manhan (“Manhan”) and Mike Baker (“Baker”) (collectively, Defendants or 

“BCS Defendants”). Fitbit’s Motion fails at this goal. Its arguments are factually and 

legally meritless for the following reasons: 

 The Court should reject Fitbit’s contractual theory because the Statement of 

Work – the governing contract in this case – expressly permitted BCS to 

repurpose Fitbit products at the product level, which is exactly what BCS did. 

Fitbit’s claim that BCS was not allowed to refurbish and resell its products 

depends on a conclusory argument that ignores the express provisions of the 

Statement of Work. 

 The Court should reject Fitbit’s trademark infringement claim because it rests 

on faulty legal and factual premises. Fitbit claims that the refurbished 

products were “counterfeit” and that the Court should presume customer 

confusion, but none of Fitbit’s cases support that questionable proposition. 

Fitbit’s allegation that the BCS Defendants should be liable if former 

codefendant L2 sold the refurbished products with counterfeit cables and 

packaging fails because the undisputed facts show that L2 did so without the 

BCS Defendants’ knowledge. Fitbit’s remaining arguments about likelihood 

of customer confusion rely wholly on an inadmissible expert report, which 

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even if it were admissible, is soundly contradicted by the admissible 

declaration of Defendants’ expert, Professor Ashish Sood. 

 The Court should reject Fitbit’s federal and California unfair business 

practices claims because these claims are expressly premised on Fitbit’s 

trademark infringement claim and fall with it. 

In sum, Fitbit’s Motion is all bluster and no substance, and does not survive 

scrutiny. The Court should deny it. 

 More importantly, Fitbit’s Motion has a second surreptitious goal: to undermine 

the BCS Defendants’ Motion for Summary Judgment, also filed on May 24, 2018, by 

creating the appearance that the case is choked with disputed issues of fact. That effort 

also fails. While Fitbit’s Motion is full of meritless arguments about immaterial facts, 

the BCS Defendants’ motion is premised on a limited set of undisputed necessary and 

material facts. Accordingly, the issue for the Court to decide when reviewing both 

sides motions, is whether the undisputed facts entitle either side to summary judgment 

as to any of the claims for relief in this case. As to each claim, either the undisputed 

facts demonstrate that Defendants, and not Fitbit, are entitled to judgment as a matter of 

law; or else there is a material dispute of facts. Accordingly, for the reasons discussed 

below, Defendants respectfully request that the Court deny Fitbit’s Motion. 

II. 

RELEVANT FACTS

In their Motion for Summary Judgment, ECF No. 241, the BCS Defendants 

provided a concise statement of facts, limited to non-argumentative and undisputed 

facts material and necessary to the motion. Fitbit, by contrast, has offered an extended 

screed replete with gratuitous allegations about the entire case. Fitbit has two aims, 

neither of which will succeed. First, Fitbit hopes to distract the Court from the limited 

and specific set of facts necessary to reject its Motion. Second, Fitbit hopes to sabotage 

the BCS Defendants’ Motion for Summary Judgment by creating the appearance that 

the case is fraught with disputed issues of fact. But the Court will not fall for that hoary 

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litigator’s ploy. 

A. The Truly Material Facts

The material facts that defeat this Motion are few. Fitbit and BCS entered into a 

contract – a Statement of Work – under which Fitbit would send surplus or returned 

merchandise to BCS for recycling. Fitbit’s Motion at 16:4-6. The Statement of Work 

twice provided that in addition to recycling the merchandise, BCS could “repurpose” it 

at the product or component level. Declaration of Zachary J. Alinder in Support of 

Fitbit’s Motion for Partial Summary Judgment [“Alinder Decl.”], Ex. I at FIT005988, ¶ 

6 [hereinafter “Statement of Work”]. The Statement of Work also provided that Fitbit 

could request a certificate of recycling or destruction. Statement of Work, ¶ 3. Fitbit 

demanded that BCS provide a certification that it complied with the R2 Standard, a set 

of best practices standards for the electronics recycling industry. Defendants’ Motion 

for Summary Judgment, Docket No. 241 (“Defendants’ Motion”) at 4:27-5:1. The R2 

Standard require recyclers to refurbish and reuse electronics when possible as a first 

option. Defendants’ Motion at 5:3-8. 

BCS had a longstanding relationship with former codefendant Cali Resources, 

Inc. (“Cali”), another recycler. Defendants’ Motion at 6:16-17. Under that agreement, 

BCS would send Cali materials and merchandise and Cali would process them and 

refurbish and resell such materials as could be refurbished. Defendants’ Motion at 

6:16-21, 23-27. BCS and Cali would split the profit from any resulting sales. 

Defendants’ Motion at 6:21-23. BCS sent the merchandise it received from Fitbit to 

Cali. Defendants’ Motion at 6:16-18. Cali processed the Fitbit merchandise and 

materials, recycled what could not be used, and refurbished the products that could be 

reused. Defendants’ Motion at 6:23-26. Cali then sold the refurbished Fitbit products 

to former codefendant Laguna 2, LLC (“L2”), which in turn sold them as refurbished 

Fitbit products on Groupon. Defendants’ Motion at 6:27-7:1. Cali did not tell BCS that 

it was selling the Fitbit products to L2, and the BCS Defendants and L2 did not know of 

each other’s existence until Fitbit filed this case. Defendants’ Motion at 7:5-6, 8-10. 

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On several occasions, Fitbit requested that particular shipments be destroyed. 

Defendants’ Motion at 6:11-13. BCS arranged for those shipments to be destroyed and 

certified that they had been destroyed. Defendants’ Motion at 6:13-15. 

B. Fitbit’s Inaccurate and Argumentative Facts 

Fitbit’s factual recital is convoluted and inaccurate. It mischaracterizes and 

misrepresents many documents and simply asserting its own argumentative 

interpretation of events. Most of them are irrelevant to this Motion, and neither the 

BCS Defendants nor the Court need address them. In fact, many of the documents upon 

which Fitbit relies show undisputed facts that directly contradict Fitbit’s interpretations 

on numerous subjects. 

1. The Statement of Work 

Fitbit concedes that the Statement of Work between Fitbit and BCS is the 

relevant contract. Fitbit Motion at 16: 4-6. Significantly, throughout its statement of 

facts, Fitbit repeatedly and argumentatively misrepresents the content of the Statement 

of Work. For instance, Fitbit alleges that BCS was contracted under “strict 

instructions” to recycle and/or destroy Fitbit-branded products which were sent to them 

by Fitbit. Fitbit Motion at 1:12-14. This is an argument, not a fact. The Statement of 

Work between Fitbit and BCS expressly permits products to be “repurposed at the 

product or component level.” Statement of Work, ¶ 6. Similarly, Fitbit alleges that 

Defendants agreed to certify that the products received from Fitbit would be recycled 

“down to plastic, metal, wire cardboard or other commodity level components” and 

would provide certificates of destruction certifying that process. Fitbit Motion at 5:25-

6:3. Once again, Fitbit misrepresents the Statement of Work and ignores its express 

provisions, which provide that its products will be “either recycled down to the 

commodity level or repurposed at the product or component level” and that Fitbit had 

the right to request Certificates of Recycling and Destruction. Statement of Work at ¶ 6 

(emphasis added). 

2. The BCS Defendants’ Representations 

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Fitbit alleges that Defendants, at the beginning of the relationship underlying this 

action, assured Fitbit that all Fitbit products sent to Defendants would be broken down 

and recycled or destroyed. Fitbit’s Motion 4:13-15. But this is merely another 

misrepresentation of the Statement of Work and its effect. It’s undisputed that the BCS 

Defendants sent Fitbit a draft of the Statement of Work to govern their relationship and 

that Fitbit reviewed and edited it and returned it to BCS with Fitbit’s revisions, which 

BCS accepted. Defendants’ Motion at 5:14-20. It’s also undisputed that the Statement 

of Work lets BCS repurpose Fitbit merchandise at the product level. Statement of Work 

at ¶ 6. Fitbit alleges that it made various statements to BCS before that, but it does not 

deny (and admits expressly) that the Statement of Work is the operative contract. 

Fitbit’s Motion at 16:4-6; Defendants’ Motion at 6:2-3. 

Fitbit alleges that Defendants represented to Verizon Wireless that “BCS had 

been given strict instructions to destroy all Fitbits for recycling.” Fitbit Motion at 10:1-

4. This is categorically false. The email in question has nothing to do with the 

Statement of Work. In fact, in the email in question, BCS was discussing, at Fitbit’s 

request, a proposed transaction that Fitbit had suggested BCS enter into with Verizon, 

in which BCS would recycle a shipment of Fitbit products from Verizon’s stock. 

Deposition of Jonathan Manhan as 30(b)(6) witness for BCS, Exhibit A to the 

Declaration of Matthew Whitten (“Whitten Decl.”) at 113:17-114:5. Fitbit had 

requested destruction of that particular potential shipment, and BCS accurately 

informed Verizon of that request. In fact, BCS did not receive that shipment, because 

Verizon chose to sell the products on the open market, where it would get a better return 

for them. Id. 

Similarly, Fitbit misrepresents a letter that BCS provided to Cali; Fitbit falsely 

implies that the letter refers to Fitbit-branded products BCS obtained as part of the 

transactions at issue in this case. Fitbit’s Motion at 12:28-13:5. This misrepresentation 

is blatantly inaccurate and misleading. The letter expressly discusses multiple products 

from multiple sources, not just Fitbit-branded products. Alinder Decl., Ex. KK. Fitbit 

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deliberately misquotes the letter, omitting the discussion of Wal-Mart, Target, and Best 

Buy, and others. Id. The letter references products received from all of these 

companies, not Fitbit alone. Fitbit’s deliberate misrepresentation of the letter is not 

good practice. 

Fitbit further alleges that the BCS Defendants failed to inform Fitbit that it was 

reselling Fitbit’s products. Fitbit’s Motion at 10:20-23. But Fitbit conceals that the 

BCS Defendants did not know if any particular Fitbit products were being resold. 

Defendants’ Motion at 7:10-11. BCS passed the products along to Cali, its downstream 

vendor, which processed and recycled or refurbished and resold them without telling 

BCS what it was doing with any load. Declaration of Carlos Kelvin, Docket No. 241-

20 (“Kelvin Decl.”), ¶ 4. 

3. L2’s Sale of the Refurbished and Repurposed Products 

Fitbit alleges that the BCS Defendants passed off scrap Fitbit-branded products 

as “like new [sic] refurbished products.” Fitbit’s Motion at 2:2-3. Notably, Fitbit offers 

absolutely no evidence that the BCS Defendants themselves sold or marketed Fitbit 

products at all. They did not – they passed the Fitbit products on to Cali, another R2-

certified recycler. Manhan Decl., ¶ 5. Cali evaluated the products, recycled some, and 

refurbished some and resold them to L2. Defendants’ Motion at 6:19-21, 27-28. L2 

sold them on Groupon. Defendants’ Motion at 6:28-7:1. The BCS Defendants didn’t 

sell any. 

Fitbit also falsely alleges that Defendants “completely controlled whether they 

were recycled or resold.” Fitbit’s Motion 7:28-8:1. This, again, is mere argument, not 

fact. The undisputed evidence demonstrates unequivocally that the BCS Defendants 

exercised no control over whether a particular load was refurbished or recycled at the 

commodity level. Kelvin Decl., ¶ 4. Instead, BCS shipped the merchandise and 

materials on to Cali, which refurbished, repurposed, or recycled it. Defendants’ Motion 

at 6:16-21, 23-26. Similarly, contrary to Fitbit’s oft-repeated and conclusory 

conspiracy allegations, Cali did not tell BCS that it was selling the Fitbit products to L2, 

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and the BCS Defendants and L2 did not know of each other’s existence until Fitbit filed 

this case. Defendant’s Motion at 7:5-11. 

III. 

ARGUMENT 

A. Standard for Summary Judgment 

Summary judgment is proper where the pleadings and materials demonstrate that 

“there is no genuine issue as to any material fact and . . . the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986). An issue is genuine if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). A material fact is one “that might affect the outcome of the 

suit under the governing law.” Id. 

The moving party has the initial burden to show that no genuine issue of material 

fact exists. Fed. R. Civ. P. 45(a); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 

1099, 1102-03 (9th Cir. 2000). In ruling on a motion for summary judgment, the 

evidence, and any inferences based on underlying facts, must be viewed in the light 

most favorable to the opposing party. Twentieth Century-Fox Film Corp. v. MCA, Inc., 

715 F.2d 1327, 1328-29 (9th Cir. 1983). If a genuine dispute of material fact exists the 

court must deny a motion for summary judgment. Anderson, 477 U.S. at 248. 

B. The BCS Defendants—Not Fitbit—Are Entitled to Partial Summary 

Judgment on Fitbit’s Contract Claim 

In their Motion for Summary Judgment, the BCS Defendants demonstrate that 

they are entitled to Partial Summary Judgment on Fitbit’s Fourth Claim for Relief for 

Breach of Contract because the contract at issue, the Statement of Work, permits 

Defendants to do exactly what they did. Defendants’ Motion at 11-15. In Fitbit’s 

Motion, Fitbit claims that it is entitled to judgment on the same claim. Fitbit’s 

argument is patently wrong under the express provisions of the contract and the relevant 

law of contractual interpretation. 

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It’s undisputed that the Statement of Work is the relevant contract that Fitbit 

accuses Defendants of breaching. Fitbit Motion at 16:4-6. It’s also undisputed that the 

Statement of Work contains language allowing Defendants to “repurpose” Fitbit’s 

products. Fitbit’s Motion 16. The question is one of interpretation: Fitbit asserts that 

“repurpose” cannot allow Defendants to repurpose the Fitbit products by passing them 

along for refurbishment and resale. They’re wrong as a matter of law and fact for the 

following reasons. 

It is well-settled that when there’s a dispute about interpretation of a contract, 

courts “look first to the language of the contract in order to ascertain its plain meaning 

or the meaning a layperson would ordinarily attach to it.” Waller v. Truck Ins. Exch., 

Inc., 11 Cal. 4th 1, 18 (1995); Cal. Civ. Code, § 1638. Tellingly, Fitbit’s analysis of the 

language of the Statement of Purpose is extremely perfunctory; they do not quote the 

relevant provisions in full nor place it in its context. Fitbit Motion at 16. That’s 

because the plain language defeats their claim. 

The preamble to the Statement of Work provides that BCS’s “services will 

include the recycling and repurposing of the items received from Fitbit.” Statement of 

Work at FIT005987, preamble. The preamble delineates what activities BCS can 

undertake. See Northfolk Water Co. v. Medland, 187 F. 163, 170 (9th Cir. 1911) (“[t]he 

contract in its preamble expressly recites the purpose and object of it”). Moreover, 

Section 6 of the Statement of Work unmistakably describes BCS’s obligations in 

straightforward language: 

BCS hereby certifies that all product contained in loads will be either 

recycled down to the commodity level or repurposed at the product or 

component level (meaning that product would be recycled down to plastic, 

metal, wire, cardboard, or other commodity level component). 

Statement of Work at FIT 005988 ¶ 6 (emphasis added). 

The first question for the Court is what is the plain meaning of those words on 

their face. Waller, 11 Cal.4th at 17. In answering that question, the Court must give 

“effect to every part, if reasonably practicable, each clause helping to interpret the 

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other.” Cal. Civ. Code, § 1641. In so doing, “the way we define words should not 

produce redundancy, but instead should give each word significance.” Shell Oil Co. v. 

Winterthur Swiss Ins. Co., 12 Cal.App.4th 715, 753 (1993). 

Here, the plain language of the Statement of Work twice states that BCS can 

repurpose Fitbit products. Moreover, it offers repurposing as an alternative to 

recycling, and draws a distinction between repurposing at the product level and at the 

component level. Statement of Work at FIT005988, ¶ 6. It defines repurposing at a 

component level as recycling “down to plastic, metal, wire, cardboard, or other 

commodity level component.” Id. Fitbit’s Motion fails to quote this language for the 

Court and devotes but a single conclusory sentence to its meaning. Fitbit Motion at 16. 

In discovery, Fitbit’s Rule 30(b)(6) witness asserted that repurposing on the 

product level meant reducing a product down to component parts and recycling those 

parts. Defendants’ Motion at 13: 7-9. But that simply ignores the plain language and 

meaning of the Statement of Work and fails to give effect to each of its words. The 

Statement of Work treats recycling and repurposing as different things and treats 

repurposing of products as separate from repurposing of components, which it defines 

as recycling them down to a commodity level. Statement of Work at FIT05988, ¶ 6. 

Fitbit’s twisted interpretation renders “repurpose on a product level” to be surplusage, 

which the rules of interpretation forbid. Shell Oil, 12 Cal.App.4th at 753. Even Fitbit 

admits that can’t be right – the same Rule 30(b)(6) witness admitted that “product” and 

“component” have distinct meanings in the Statement of Work. Defendants’ Motion at 

13:19-24. In fact, Fitbit’s interpretation renders the twice-used word “repurpose” itself 

surplusage, since under Fitbit’s interpretation it would mean “recycled.” 

Fitbit turns expressly (and in defiance of longstanding rules of contract law) to 

parol evidence, claiming that an email exchange that occurred three days before BCS 

sent Fitbit the Statement of Work, and five months before Fitbit returned the Statement 

to BCS with its edits, somehow overrides the language of the Statement of Work. 

Fitbit’s Motion at 4:24-5:3 (citing Exhibit T to Declaration of Zachary Alinder). 

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Fitbit’s attempt is misguided: “Federal law applies the traditional parol evidence rule: a 

court first considers the plain language of the contract, and if the language is not 

ambiguous on its face, parol evidence is never considered.” Arizona v. Tohono O'odham 

Nation, 944 F. Supp. 2d 748, 759 (D. Ariz. 2013) (citing Nehmer v. DVA, 494 F.3d 846 

(9th Cir. 2007). The email exchange Fitbit cites is not part of the Statement of Work 

and does not inform its meaning. 

In fact, the plain language of the Statement of Work therefore resolves the issue 

in the BCS Defendants’ favor. When the plain meaning is unambiguous, the analysis is 

over. Dore v. Arnold Worldwide, Inc., 39 Cal.4th 384, 393 (2006). But the Court 

should still resolve the issue in the BCS Defendants’ favor even if it concludes that the 

term “repurpose” is ambiguous. Resolution of the meaning of an ambiguous term is a 

question of law for the Court. Wolf v. Superior Court, 114 Cal.App.4th 1343, 1351 

(2004); Parsons v. Bristol Development Co., 62 Cal.2d 861, 865-66 (1965). Here, 

undisputed evidence shows that “repurpose” necessarily must include refurbishing and 

resale for the following reasons. 

First, it is undisputed that Fitbit required BCS to certify its compliance with the 

R2 Standard, the leading best practices standard for the electronics recycling industry. 

Defendants’ Motion at 4:25-5:1. It’s equally undisputed that the R2 Standard 

specifically requires refurbishment and resale of electronics when possible: the standard 

provides that a recycler “shall take all practical steps to direct tested equipment and 

components to reuse and resale, and to direct equipment capable of repair to qualified 

refurbishers, unless a customer directs otherwise.” Defendants’ Motion at 5:3-8. Fitbit 

cannot assert that “repurpose” means something that contradicts the very standards it 

demanded BCS follow. Second, it’s undisputed that Fitbit made specific demands that 

particular shipments of products be destroyed, and that BCS did so on those occasions. 

Defendants’ Motion at 6:11-15. Those specific demands demonstrate that the contract 

permits BCS to have product refurbished for sale– if it was all to be destroyed, there 

would be no need to make specific requests for destruction of particular loads. 

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Therefore, even if the Court finds that the term “repurpose” is ambiguous (it is not), the 

undisputed facts support the BCS Defendants’ interpretation, not Fitbit’s. 

There is only one circumstance where interpretation of the Statement of Work 

would be a question of fact for the jury – if the Court finds that resolution of the 

question turns on the credibility of extrinsic evidence. Parsons, 62 Cal.2d at 865-66; 

Wolf, 162 Cal.App.4th at 1134. If – and only if – the Court decides that the language of 

the Statement of Work is ambiguous, and that the undisputed facts above do not resolve 

it, and that the Court must look to the expert opinions to make the determination, then 

the Court must still deny Fitbit’s Motion. First, Fitbit relies on the unsworn expert 

report of Michael Easterbrook. Fitbit’s Motion at 16. As explained below, see Section 

III.D, unsworn expert reports are inadmissible and may not be considered on summary 

judgment. 

The BCS Defendants, by contrast, offer the sworn declaration of Sarah Cade, an 

experienced electronics recycling consultant who was actually a member of the 

committee that drafted the R2 Standard at issue in this case—the very standard which 

Fitbit required BCS to comply with. Cade Decl. at ¶ 1. Ms. Cade explains that, based 

on her training and experience, “repurpose” is a common and well-understood word in 

the electronics recycling industry, and means refurbishing and repairing for resale. Id.

at ¶ 5. She explains, based on her long industry experience, that “the phrase ‘repurpose 

at the product level’ means ‘reuse/refurbish/repair/resell the entire product without 

dismantling it.’” Id. She opines that the language of the Statement of Work permitted 

BCS to refurbish and resell Fitbit products. Id. at ¶ 7. Finally, she explains that in the 

industry, when a party wants all products destroyed and not refurbished, it says so 

explicitly in the contract. Id. at ¶ 4. Her expert declaration directly contradicts the 

report of Fitbit’s expert Michael Easterbrook, which would create a dispute of 

credibility between the two if the Easterbrook report were admissible. Resolving that 

dispute is a question of fact, precluding summary judgment. Parsons, 62 Cal.2d at 865-

66; Wolf, 162 Cal.App.4th at 1134. But the Court need not reach that credibility 

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determination: Ms. Cade’s opinion is unrebutted because the Easterbrook report is 

inadmissible; and, as is set forth above, the meaning of “repurpose” is not ambiguous in 

any event. 

Fitbit also asserts that, even if Defendants were able to refurbish and resell Fitbit 

products, they would be in breach of the Statement of Purpose because they did not 

remit 70% of their profits to Fitbit. Fitbit’s Motion at 16. Fitbit is wrong. The express 

provisions of the Statement of Purpose only require Defendants to remit “net proceeds”

–that is, profit—from sale of Fitbit materials. Statement of Work at FIT005988, ¶ 5. 

But the uncontradicted evidence demonstrates that the profit has yet to be determined. 

BCS sent the products to Cali under a longstanding agreement under which Cali and 

BCS would split the profits on the sale of anything BCS sent to Cali. Defendants’ 

Motion at 6:21-23. BCS is therefore entitled to half of the profits of Cali’s sale of the 

materials; it can then calculate its own costs and determine its own profits, if any, on 

those materials. Manhan Decl., ¶ 6. But the profits of Cali’s sale have not been 

calculated, and BCS cannot calculate its profits without Cali’s statement of costs. 

Manhan Decl., ¶ 7. Those costs are substantial and will continue to grow, as they 

include attorney fees Cali has incurred as a defendant in this case. Kelvin Decl., ¶ 5. 

Though BCS has already received part of the gross proceeds of Cali’s sale of the 

materials, it owes and must pay Cali its share of Cali’s statement of costs and does not 

yet know what its net profits are. Manhan Decl., ¶ 7. Therefore, the undisputed 

evidence shows that there has been no breach of the payment provision because there 

are no profits yet to which the 70% formula could be applied. 

Therefore, the Court should deny Fitbit’s Motion for Partial Summary Judgment 

as to the Fourth Claim for Relief of Breach of Contract. 

C. Fitbit’s Trademark and Unfair Competition Arguments Fail as a 

Matter of Fact and Law 

In their own Motion, the BCS Defendants demonstrated that they are entitled to 

summary judgment on Fitbit’s trademark and unfair competition claims. Defendants’ 

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Motion at 8-11, 22-24. Fitbit’s Motion – which asserts that it is entitled to partial 

summary judgment on those same claims – is meritless for additional legal and factual 

reasons. 

1. Fitbit Cannot Prove Trademark Infringement Because the 

Statement of Work Permitted BCS To Repurpose the Fitbit 

Products 

As is set forth above, provisions in the Statement of Work explicitly permitted 

BCS to repurpose Fitbit’s products, as encouraged and required by the very R2 

Standard that Fitbit demanded BCS meet. Those provisions defeat Fitbit’s trademark 

infringement claim because they expressly gave BCS the right to repurpose the 

products. 

A claim of trademark infringement requires plaintiff to demonstrate that the 

defendant acted without the plaintiff’s consent. Century 21 Real Estate Corp. v. 

Sandlin, 846 F.2d 1175, 1178 (9th Cir. 1988); 15 U.S.C. § 1114(a)(1). BCS not only 

had Fitbit’s consent, but it was contracted to do what it did. Since Fitbit’s argument 

involving its Third Claim for Relief for Trademark Infringement and Eighth Claim for 

Relief for Unfair Competition are explicitly premised on its First Claim for Relief for 

Trademark Infringement, Fitbit’s Motion at 23, the Court should deny the motion as to 

all of those claims. 

2. Fitbit’s Demand That the Court Presume Confusion Is Meritless 

As Fitbit concedes (Fitbit Motion at 16-17), to prevail on its First Claim for 

Relief for Trademark Infringement it must prove that the BCS Defendants used its mark 

in a way “likely to cause consumer confusion.” Rearden LLC v. Rearden Commerce, 

Inc. 683 F.3d 1190, 1202 (9th Cir. 2012). Fitbit begins by boldly asking the court to 

presume this element because the BCS Defendants passed on Fitbit products to be 

refurbished and resold, rendering them “counterfeit.” But Fitbit’s authorities do not 

support that dubious proposition. 

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Fitbit cites four cases for the proposition that the refurbished Fitbit products are 

“counterfeit” because Fitbit didn’t authorize the refurbishment. Fitbit’s Motion 18:10-

21. None of Fitbit’s cases hold that. Fitbit’s first case is El Greco Leather Prods. Co, 

Inc. v. Shoe World, Inc., 806 F.2d 392 (2d Cir. 1986). In El Greco, a shoe company 

placed an order with a factory for a shipment of shoes, then cancelled the order and did 

not accept the completed shoes from the factory. The contract specifically provided 

that no orders were approved or accepted until a company official had signed a 

certificate—which never happened. El Greco Leather Prods. Co, Inc., 806 F.2d at 395. 

The factory then sold the shoes to a distributor, marketing and selling them as genuine 

new shoes under the shoe company’s brand, and was held liable for infringement. Id. 

El Greco does not support Fitbit’s position. First, in El Greco the offending 

manufacturer made false statements to the consuming public about the shoes, marketing 

and selling them as new products under the plaintiff’s brand. Id. at 394. In other words, 

the defendant marketed the shoes as something they were not. In this case, by contrast, 

the undisputed evidence is that L2 explicitly marketed its products as “refurbished.” 

Fitbit’s Motion at 7:15-16. Second, in El Greco, the shoes were never genuine El 

Greco products because under the terms of the parties’ contract, the plaintiff had never 

accepted them. In this case, by contrast, it is undisputed that Fitbit manufactured and 

accepted the products at issue, and sold them to retailers and distributors, before 

receiving them back as overstock or returns. Fitbit Motion at 4:3-8. 

El Greco might be good authority in a case in which a defendant refurbished 

products and then marketed them as “new,” but that is not this case. There is no 

allegation and no evidence that any of the BCS Defendants, Cali, or L2, ever identified 

any of the refurbished products as anything other than a refurbished product. 

Accordingly, El Greco does not support Fitbit in this case. 

United States v. Farmer, 370 F.3d 435 (4th Cir. 2004), is even less on point. The 

goods in Farmer were counterfeits by any definition, falsely marketed and sold to the 

public as new branded products. Farmer, 370 F.3d at 436. The defendant in Farmer

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bought factory-reject clothes with no brand labels, then sewed on counterfeit brand 

labels, and sold the clothes as new genuine branded goods. Id. No facts here resemble 

that scenario. 

Fitbit’s next case, Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104 (4th 

Cir. 1991), fares no better. Just as in Farmer, the defendant in Shell Oil marketed and 

sold crude oil as “Shell Rotella T” oil, when it was not. Shell Oil Co., 928 F.2d at 106. 

Once again, like Farmer and El Greco, Farmer is irrelevant because there’s no 

evidence that any defendant here did anything remotely analogous. To the contrary, it’s 

undisputed that L2 labeled all of the products it sold as “refurbished Fitbits,” and that 

they all were, in fact, refurbished Fitbits. Fitbit Motion at 10:28-11:2. There is no 

allegation in this case that L2 made any false statement to the public about what the 

products were that it sold. 

These three cases stand for the unremarkable proposition that a seller of goods 

can incur liability by telling the public that a product is something that it’s not, which is 

true, and irrelevant to this case. Even if the BCS Defendants were liable for L2’s 

marketing – and, as is set forth below, they are not – Fitbit offers no evidence that L2’s 

“refurbished” designation on its products is inaccurate. Fitbit merely argues that the 

products are illegitimate because it didn’t want them to be refurbished and resold. But 

Fitbit’s own authority contradicts that argument: “[a]s a general rule, trademark law 

does not apply to the sale of genuine goods bearing a true mark, even if the sale is 

without the mark owner's consent.” Shell Oil, 928 F.2d at 107. The Ninth Circuit 

agrees. NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506, 1509 (9th Cir. 1987) 

(“Trademark law generally does not reach the sale of genuine goods bearing a true mark 

even though such sale is without the mark owner's consent.”) 

Finally, Fitbit relies on Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. 

Supply Inc., 106 F.3d 894 (9th Cir. 1997). Fitbit offers neither a parenthetical nor an 

explanation for how Westinghouse is relevant. It isn’t. In fact, that court upheld a jury 

verdict for the defense in a trademark case. The generic language Fitbit cites from the 

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case is merely an unremarkable and inapplicable proposition about customer confusion. 

Thus, Fitbit’s authority does not support its claim that the refurbished products here are 

“counterfeit” or that the Court may presume customer confusion. Fitbit offers no case 

for the proposition that a refurbished product accurately labeled “refurbished” is 

counterfeit. 

3. Fitbit’s Cable and Packaging Claims Are Meritless 

In its next attempt to prove likelihood of confusion, Fitbit argues that L2 sold 

some Fitbit products with counterfeit or non-genuine packaging or charger cables on 

Groupon. But Fitbit offers no evidence sufficient to hold the BCS Defendants liable for 

L2’s actions. 

Fitbit repeats the conclusory allegation that “Defendants orchestrated a 

conspiracy to resell non-genuine scrap products as ‘like new’ refurbished ‘Fitbit’ 

products, some in counterfeit packaging and with counterfeit cables . . . .” Fitbit’s 

Motion 17:12-13. But unsupported statements and conclusions in a brief are not 

admissible evidence. The undisputed admissible evidence is that the BCS Defendants 

and L2 did not know of each other’s existence until Fitbit filed this case. 

It’s undisputed that BCS received Fitbit’s products under the Statement of Work, 

Fitbit Motion at 4:8-11, then passed the products along to Cali under their preexisting 

arrangement. Defendants’ Motion at 6:16-18. Cali then processed most of the products 

and materials for recycling, refurbished suitable ones, and sold those to L2. 

Defendants’ Motion at 6:23-28. L2 sold the refurbished products on Groupon. 

Defendants’ Motion at 6:28-7:1. The BCS Defendants have filed declarations from the 

principals of all three companies involved: BCS, Cali, and L2. All three affirmed that 

BCS and L2 had no relationship before this case, that BCS and L2 did not know of each 

other’s existence before this case, and that Cali did not tell BCS that it had sold the 

Fitbit products to L2 until after the fact. Declaration of Joel Blank, Docket No. 231-3 

(“Blank Decl.”) at ¶ 2; Kelvin Decl. at ¶ 4; Manhan Decl. at ¶ 8. The BCS Defendants 

and L2 not only didn’t conspire; they didn’t know one another existed. Fitbit offers no 

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evidence that the BCS Defendants had any role in choosing, designing, procuring, or 

using the cables or packaging of which Fitbit complains. 

Therefore, even if L2’s actions infringed Fitbit’s trademark, the BCS Defendants 

aren’t liable. Indirect trademark infringement requires proof that a defendant 

intentionally induced another party to infringe a trademark or continued to supply 

product to another party knowing the other party was infringing a trademark. Inwood 

Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853-54 (1982). There is no 

such evidence here. 

4. Fitbit Has Not Established Likelihood of Confusion, Let Alone 

Beyond Any Genuine Dispute of Fact 

Fitbit’s claim of consumer confusion is premised on its arguments that the 

refurbished products are “counterfeit” and its claim that L2 marketed the refurbished 

products with counterfeit cables and packaging. Those claims fail for the reasons set 

forth above: Fitbit’s authorities don’t show that truthfully marketed refurbished 

products are counterfeit, and the BCS Defendants aren’t responsible for L2’s packaging. 

But even if those claims had merit, Fitbit’s evidence does not establish likelihood of 

confusion, let alone establish it beyond a genuine issue of fact. 

First, Fitbit’s likelihood of confusion argument relies on the unsworn report of its 

expert Hal Poret. Exh. WV to Fitbit’s Motion. But a motion for summary judgment 

requires the movant to submit admissible evidence. Fed. R. Civ. Pro. 56(c). It is well 

established that unsworn expert reports are not admissible to support or oppose 

summary judgment motions. A.C. v. City of Santa Clara, No. 13-CV-03276-HSG, 

2015 WL 5350412, at *9 (N.D. Cal. Sept. 14, 2015) (“Unsworn expert reports prepared 

in compliance with Rule 26(a)(2) do not qualify as affidavits or otherwise admissible 

evidence for purpose of Rule 56, and may be disregarded by the court when ruling on a 

motion for summary judgment.”); Cahill v. Golden Gate Bridge, Highway & 

Transportation Dist., No. 15-CV-01374-JCS, 2016 WL 1070655, at *5 (N.D. Cal. Mar. 

18, 2016) (holding that “unsworn expert reports ‘do not qualify as affidavits or 

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otherwise admissible evidence for purposes of Rule 56.”). Fitbit’s “likelihood of 

confusion” argument fails because it relies upon a clearly inadmissible report. Unlike 

Fitbit, Defendants have filed declarations from their experts in support of this 

Opposition. Accordingly, the opinions of Defendants’ experts are unrebutted, as a 

matter of law, for purposes of summary judgment. 

Second, Fitbit would not be entitled to summary judgment even if the Poret 

declaration were admissible. The BCS Defendants have provided the admissible 

Declaration of Professor Ashish Sood, their marketing expert. Declaration of Ashish 

Sood in support of Defendants’ Opposition to Fitbit’s Motion (“Sood Decl.), filed 

concurrently herewith. Dr. Sood’s expert opinion contradicts Poret’s. Sood Decl., ¶ 3. 

For instance, as Dr. Sood explains, Poret relies on a survey that is so biased and 

suggestive that it cannot support any conclusion about likelihood of confusion. Sood 

Decl., ¶¶ 4-8. The conflict between the experts on likelihood of confusion precludes 

summary judgment. Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1270 (9th Cir. 

1994) (explaining that conflicting expert testimony is itself “sufficient to create a 

genuine issue of disputed fact sufficient to defeat a summary judgment motion”). 

5. Fitbit’s Joint and Several Liability Argument Is Meritless 

Finally, Fitbit asserts that the BCS Defendants are liable for infringement by their 

codefendants. Fitbit Motion 23. Fitbit is wrong. 

Fitbit cites Adobe Systems Inc. v. Blue Source Group, Inc. 125 F.Supp.3d 945 

(N.D. Cal. 2015) for the proposition of joint and several liability, but that case is inapt. 

In Adobe, the court was faced with a Rule 12(b)(6) motion to dismiss the complaint and 

took the allegations in the complaint as true; the case did not feature any discussion of 

what evidence of concerted behavior creates joint liability. Id. at 973. Fitbit pointedly 

ignores the relevant standard: “[t]o prevail on its claim of contributory trademark 

infringement, [a plaintiff] ha[s] to establish that [the defendant] continued to supply its 

services to one who it knew or had reason to know was engaging in trademark 

infringement.” Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 942 

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(9th Cir. 2011) (citing Inwood Labs., 456 U.S. at 854.) Here, as is noted above, the 

undisputed evidence is that BCS did not even know L2 existed until Fitbit filed this 

case, let alone know that it was engaging in trademark infringement. Defendants’ 

Motion at 7:8-10. Fitbit’s regurgitation of its familiar conspiracy theories fails for the 

same reason: they are conclusions without supporting evidence. 

6. Fitbit’s Unfair Competition Claims Fail with Its Infringement 

Claim 

For the reasons set forth above, Fitbit can’t prove trademark infringement at all, 

let alone prove it beyond a genuine issue of fact. Fitbit admits that its federal and 

California unfair competition claims rely entirely on its infringement claim. Fitbit 

Motion at 23. The Court should therefore deny the motion as to all of the claims. 

D. Fitbit Fails to Meet Its Burden as to Any Claim, Because It Fails to 

Present Any Admissible Evidence of Damages 

As Fitbit concedes, damages are an element of each claim for relief. See, e.g., 

Fitbit’s Motion at 15:17-20. However, Fitbit presents no admissible evidence regarding 

damages. The only reference to Fitbit’s damages in Fitbit’s entire Motion the following 

single sentence: “Defendants’ conduct caused millions of dollars of damage and harm 

to Fitbit.” Fitbit’s Motion, at 9:13-14. And the only citation Fitbit offers for that 

sentence is the unsworn expert report of Greg Regan. Id. As a matter of law, unsworn 

expert reports are not admissible evidence and may not be considered on summary 

judgment. See A.C. v. City of Santa Clara, No. 13-CV-03276-HSG, 2015 WL 5350412, 

at *9 (N.D. Cal. Sept. 14, 2015) (“Unsworn expert reports prepared in compliance with 

Rule 26(a)(2) do not qualify as affidavits or otherwise admissible evidence for purpose 

of Rule 56, and may be disregarded by the court when ruling on a motion for summary 

judgment.”); Cahill v. Golden Gate Bridge, Highway & Transportation Dist., No. 15-

CV-01374-JCS, 2016 WL 1070655, at *5 (N.D. Cal. Mar. 18, 2016) (“unsworn expert 

reports ‘do not qualify as affidavits or otherwise admissible evidence for purposes of 

Rule 56.”). 

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 Because the only evidence Fitbit offered in support of the element of damages—

an element of each claim for relief—is inadmissible as a matter of law, Fitbit has failed 

as a matter of law to meet its burden as to any claim for relief. Additionally, and 

independently of the other grounds set forth herein, the Court should deny Fitbit’s 

motion in its entirety on this ground. 

E. Defendants’ Evidentiary Objections to Fitbit’s Motion for Partial 

Summary Judgment 

Defendants submit the following evidentiary objections to the Declaration of 

Brett S. Millar in support of Fitbit’s Motion for Partial Summary Judgment, Docket No. 

235 (“Millar Decl.”), the Declaration of Jeff Bonham in support of Fitbit’s Motion for 

Partial Summary Judgment, Docket No. 236 (“Bonham Decl.”), and the Alinder Decl. 

Defendants respectfully move that the Court disregard and strike the objectionable 

evidence set forth below. 

1. Defendants’ Objections to the Declaration of Brett Millar 

Material Objected to: Grounds for Objection: 

OBJECTION NO. 1 

“While Fitbit does not currently resell or 

authorize the resale of any refurbished 

Fitbit products, which are used only for 

customer return replacements, Fitbit has 

considered, and is currently considering, 

an authorized refurbished program for 

resale.” (Millar Decl., ¶ 5, p. 2:15-17.) 

Lacks foundation. (Fed. R. Evid. 602.) 

Hearsay [as to authorizations] (Fed. R. Evid. 

801.) 

2. Defendants’ Objections to the Declaration of Jeff Bonham 

Material Objected to: Grounds for Objection: 

OBJECTION NO. 2 

“Fitbit engaged Defendants to destroy 

approximately 2 million scrap products 

Hearsay [as to terms of engagement] (Fed. 

R. Evid. 801.) 

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Material Objected to: Grounds for Objection: 

for destruction and recycling . . .” 

(Bonham Decl., ¶ 1, p. 1:13-14.) 

OBJECTION NO. 3 

“Between May and September 2016, the 

Fitbit brand protection team purchased 

nine “Fitbit” branded products that were 

being sold through Groupon.com, that 

Fitbit determined had previously been 

designated for scrap destruction and 

recycling as part of Fitbit’s standard 

quality control processes. Attached 

hereto as Exhibit A are true and correct 

copies of the screenshots I took of the 

Groupon listings for the products 

purchased.” (Bonham Decl., ¶ 3, p. 

1:16-20.) 

Hearsay (Fed. R. Evid. 801.) Hearsay [as to 

truth of any information contained in 

Exhibit A] (Fed. R. Evid. 803(6).) 

OBJECTION NO. 5 

“Attached hereto as Exhibit B are true 

and correct screenshots of customer 

support case notes related to these 

Groupon purchases, redacted in part for 

customer privacy as set forth below. The 

first customer support case note excerpt 

involved a customer who had an issue 

with the first device she purchased from 

Groupon. The customer got a 

replacement device from Groupon; 

however that replacement had another 

issue and Groupon refused to assist. The 

customer contacted Fitbit and Fitbit 

eventually provided the customer with a 

replacement product. After reviewing 

the customer’s profile, Fitbit was able to 

confirm that the two devices were 

previously designated as scrap by Fitbit.” 

(Bonham Decl., ¶ 5, p. 2:1-8.)

Hearsay (Fed. R. Evid. 801.) Hearsay [as to 

truth of any information contained in 

Exhibit B] (Fed. R. Evid. 803(6); Thompson 

v. TRW Auto., Inc., No. 2:09-CV-1375-

JAD-PAL, 2014 WL 12781291, at *12 (D. 

Nev. June 2, 2014) (contents of exhibit 

inadmissible until party provides Rule 

902(11) information and establishes 

a hearsay exception); N.L.R.B. v. First 

Termite Control Co. ̧646 F.2d 424, 429-30 

(9th Cir. 1981), opinion amended on reh'g 

sub nom. Nat'l Labor Relations Bd. v. First 

Termite Control Co. Inc. (9th Cir. Aug. 5, 

1981) (absent a showing of the elements of 

the business records exception, content of 

documents are inadmissible hearsay). 

OBJECTION NO. 5 Hearsay (Fed. R. Evid. 801.) Hearsay [as to 

truth of any information contained in 

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Material Objected to: Grounds for Objection: 

“The second customer support case note 

excerpt included in Exhibit B involved a 

customer who claimed the band of the 

device purchased from Groupon had 

sheared off. Upon investigation, Fitbit 

confirmed that the unit had been sent to 

scrap before this customer paired the 

device with his account. Although Fitbit 

initially denied the customer’s request 

for a replacement, Fitbit also eventually 

provided this customer with a 

replacement product.” (Bonham Decl., ¶ 

6, p. 2:9-13.)

Exhibit B] (Fed. R. Evid. 803(6); 

Thompson v. TRW Auto., Inc., No. 2:09-CV1375-JAD-PAL, 2014 WL 12781291, at 

*12 (D. Nev. June 2, 2014) (contents of 

exhibit inadmissible until party provides 

Rule 902(11) information and establishes a 

hearsay exception); N.L.R.B. v. First 

Termite Control Co. ̧646 F.2d 424, 429-30 

(9th Cir. 1981), opinion amended on reh'g 

sub nom. Nat'l Labor Relations Bd. v. First 

Termite Control Co. Inc. (9th Cir. Aug. 5, 

1981) (absent a showing of the elements of 

the business records exception, content of 

documents are inadmissible hearsay). 

OBJECTION NO. 6 

“The third customer support case note 

except included in Exhibit B involved a 

customer who bought a device from 

Groupon and complained that it stopped 

working. Fitbit advised this customer 

that Groupon was not an authorized 

retailer, to which the customer replied 

that the warranty card was associated to 

Fitbit. When the customer was denied a 

replacement, he said ‘Well that sucks.’ 

Fitbit has also confirmed that the serial 

number associated with the device paired 

to this customer’s account was for a 

device that had been designated as 

scrap.” (Bonham Decl., ¶ 7, p. 2:14-20.)

Hearsay (Fed. R. Evid. 801.) Hearsay [as to 

truth of any information contained in 

Exhibit B] (Fed. R. Evid. 803(6); 

Thompson v. TRW Auto., Inc., No. 2:09-CV1375-JAD-PAL, 2014 WL 12781291, at 

*12 (D. Nev. June 2, 2014) (contents of 

exhibit inadmissible until party provides 

Rule 902(11) information and establishes a 

hearsay exception); N.L.R.B. v. First 

Termite Control Co. ̧646 F.2d 424, 429-30 

(9th Cir. 1981), opinion amended on reh'g 

sub nom. Nat'l Labor Relations Bd. v. First 

Termite Control Co. Inc. (9th Cir. Aug. 5, 

1981) (absent a showing of the elements of 

the business records exception, content of 

documents are inadmissible hearsay). 

OBJECTION NO. 7 

“Finally is another customer complaint 

included in Exhibit B where the 

customer complained about battery 

charging issues with a refurbished 

Charge HR purchased on Groupon and 

specifically referenced L2, because L2 

Hearsay (Fed. R. Evid. 801.) Hearsay [as to 

truth of any information contained in 

Exhibit B] (Fed. R. Evid. 803(6); 

Thompson v. TRW Auto., Inc., No. 2:09-CV1375-JAD-PAL, 2014 WL 12781291, at 

*12 (D. Nev. June 2, 2014) (contents of 

exhibit inadmissible until party provides 

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Material Objected to: Grounds for Objection: 

was not responding to her warranty 

requests and she wanted Fitbit to know 

how Fitbit ‘is being represented’ by 

Groupon and L2, even including L2’s 

full business address.” (Bonham Decl., ¶ 

8, p. 2:21-25.)

Rule 902(11) information and establishes a 

hearsay exception); N.L.R.B. v. First 

Termite Control Co. ̧646 F.2d 424, 429-30 

(9th Cir. 1981), opinion amended on reh'g 

sub nom. Nat'l Labor Relations Bd. v. First 

Termite Control Co. Inc. (9th Cir. Aug. 5, 

1981) (absent a showing of the elements of 

the business records exception, content of 

documents are inadmissible hearsay). 

OBJECTION NO. 8 

“I have analyzed a sample of 100 "Fitbit" 

branded units out of thousands recently 

returned by L2 and determined that 97 of 

the 100 products appear, either 

conclusively or with a very high 

likelihood, based on Fitbit's internal 

records and data, to have been 

designated for scrap destruction, and 

therefore would have been sent to BCS 

to be destroyed and/or recycled at the 

commodity level . . .” (Bonham Decl., ¶ 

10, p. 3:6-9.) 

Lacks foundation. (Evid. Code, § 400, et 

seq.) 

Hearsay [Fed. R. Evid. 801.) Failure to 

supplement interrogatory response. (Fed. R. 

Civ. Proc. 26(e)(1)(A).) (The documentary 

evidence underlying this assertion was 

created on April 26, 2018, but not provided 

to Defendants until May 24, 2018, despite 

being responsive to an interrogatory served 

on February 8, 2018.) 

3. Defendants’ Objections to the Declaration of Zachary Alinder 

Material Objected to: Grounds for Objection: 

OBJECTION NO. 9 

Expert Report of Michael Easterbrook 

(Alinder Decl., Ex. VV.) 

Hearsay (Fed. R. Evid. 801; A.C. v. City of 

Santa Clara, No. 13-CV-03276-HSG, 2015 

WL 5350412, at *9 (N.D. Cal. Sept. 14, 

2015) (“Unsworn expert reports prepared in 

compliance with Rule 26(a)(2) do not 

qualify as affidavits or otherwise admissible 

evidence for purpose of Rule 56, and may 

be disregarded by the court when ruling on a 

motion for summary judgment.”); Cahill v. 

Golden Gate Bridge, Highway & 

Transportation Dist., No. 15-CV-01374-

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Material Objected to: Grounds for Objection: 

JCS, 2016 WL 1070655, at *5 (N.D. Cal. 

Mar. 18, 2016) (“unsworn expert reports ‘do 

not qualify as affidavits or otherwise 

admissible evidence for purposes of Rule 

56.”). 

OBJECTION NO. 10 

Expert Report of Hal Poret (Alinder 

Decl., Ex. WW.) 

Hearsay (Fed. R. Evid. 801; A.C. v. City of 

Santa Clara, No. 13-CV-03276-HSG, 2015 

WL 5350412, at *9 (N.D. Cal. Sept. 14, 

2015) (“Unsworn expert reports prepared in 

compliance with Rule 26(a)(2) do not 

qualify as affidavits or otherwise admissible 

evidence for purpose of Rule 56, and may 

be disregarded by the court when ruling on a 

motion for summary judgment.”); Cahill v. 

Golden Gate Bridge, Highway & 

Transportation Dist., No. 15-CV-01374-

JCS, 2016 WL 1070655, at *5 (N.D. Cal. 

Mar. 18, 2016) (“unsworn expert reports ‘do 

not qualify as affidavits or otherwise 

admissible evidence for purposes of Rule 

56.”). 

OBJECTION NO. 11 

Excerpts from Expert Report of Greg 

Regan (Alinder Decl., Ex. XX.) 

Hearsay (Fed. R. Evid. 801); A.C. v. City of 

Santa Clara, No. 13-CV-03276-HSG, 2015 

WL 5350412, at *9 (N.D. Cal. Sept. 14, 

2015) (“Unsworn expert reports prepared in 

compliance with Rule 26(a)(2) do not 

qualify as affidavits or otherwise admissible 

evidence for purpose of Rule 56, and may 

be disregarded by the court when ruling on a 

motion for summary judgment.”); Cahill v. 

Golden Gate Bridge, Highway & 

Transportation Dist., No. 15-CV-01374-

JCS, 2016 WL 1070655, at *5 (N.D. Cal. 

Mar. 18, 2016) (“unsworn expert reports ‘do 

not qualify as affidavits or otherwise 

admissible evidence for purposes of Rule 

56.”).____

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IV. 

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court deny 

Fitbit’s Motion for partial summary judgment. 

 Respectfully submitted, 

DATED: June 7, 2018 BROWN WHITE & OSBORN LLP

By

s/Caleb E. Mason

 THOMAS M. BROWN 

KENNETH P. WHITE 

CALEB E. MASON 

MATTHEW G. WHITTEN 

Attorneys for Defendants 

P-COVE ENTERPRISES INC. dba 

BUYERS CONSULTATION SERVICE, 

et al. 

4850-9307-2487, v. 1

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