PAGE 1 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

Jon P. Stride, OSB #903887 

 Direct Dial: 503.802.2034 

 Direct Fax: 503.972.3734 

 Email: jon.stride@tonkon.com 

Steven D. Olson, OSB #003410 

 Direct Dial: 503.802.2159 

 Direct Fax: 503.972.3859 

 Email: steven.olson@tonkon.com 

Sarah Einowski, OSB #093412 

 Direct Dial: 503.802.5738 

 Direct Fax: 503.274.8779 

 Email: sarah.einowski@tonkon.com

TONKON TORP LLP 

1600 Pioneer Tower 

888 SW Fifth Avenue 

Portland, OR 97204 

Attorneys for Plaintiff/Counterclaim Defendant Quantum, Inc. 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

QUANTUM, INC., an Oregon corporation,

Plaintiff, 

v. 

AKESO HEALTH SCIENCES, LLC, 

a California corporation, 

Defendant. 

Civil No. 3:16-cv-00334-JE 

DECLARATION OF DAVID SHAW 

IN SUPPORT OF 

PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S 

MOTION FOR SUMMARY 

JUDGMENT

AKESO HEALTH SCIENCES, LLC, 

a California corporation, 

Counter-Claimant, 

v. 

QUANTUM, INC., an Oregon corporation, 

Counterclaim Defendant.

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 1 of 9
PAGE 2 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

I, DAVID SHAW, depose and say: 

1. I am President of Quantum, Inc. (“Quantum”). I have personal knowledge 

of the facts attested to herein and if called as a witness would competently testify thereto. I make 

this declaration in support of Quantum’s motion for summary judgment. 

2. Quantum is a company based in Eugene, Oregon. Since 1981, Quantum 

has sold high-quality, science-based natural health products. Quantum currently sells over 60 

products throughout the United States and Canada. 

3. Quantum owns a number of trademarks for natural health products, 

including the “MIGRELIEF” mark. Quantum registered the “MIGRELIEF” mark in 1996. It is 

Trademark Registration No. 2,002,902. 

4. Attached hereto as Exhibit 1 is a true and correct copy of the 2002 

Contract between Quantum and PR-Osteo, LLC. 

5. Quantum never exercised its extension option in the 2002 Contract. 

Quantum did agree to two one-month extensions, while we worked on a new contract, which 

extended the contract to October 31, 2004. However, when those negotiations dragged on, I 

decided not to agree to any further extensions. I told Akeso that I was not interested in any 

further extensions of the 2002 Contract. I have always understood that the 2002 Contract 

expired on October 31, 2004. 

6. Quantum and Akeso spent a long time trying to negotiate a new contract, 

both before and after the 2002 Contract expired. We proposed various terms back and forth for 

well over a year. We were never able to reach agreement. I tried again on a few occasions later 

to get a contract with Akeso, including in 2007 and 2014, but it never happened. 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 2 of 9
PAGE 3 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

7. Attached hereto as Exhibit 2 is a true and correct copy of an email from 

David Weinberg to me, dated May 4, 2004. 

8. Attached hereto as Exhibit 3 is a true and correct copy of an email 

exchange between me and David Weinberg, dated May 4, 2004. 

9. Attached hereto as Exhibit 4 is a true and correct copy of an email from 

David Weinberg to me, dated July 28, 2004.

10. Attached hereto as Exhibit 5 is a true and correct copy of an email from 

David Weinberg to me, dated August 3, 2004. 

11. Attached hereto as Exhibit 6 is a true and correct copy of an email from 

David Weinberg to me, dated September 3, 2004.

12. Attached hereto as Exhibit 7 is a true and correct copy of an email 

exchange between me and David Weinberg, dated September 29, 2004. 

13. Attached hereto as Exhibit 8 is a true and correct copy of an email 

exchange between me and David Weinberg, dated November 29-30, 2004.

14. Attached hereto as Exhibit 9 is a true and correct copy of an email 

exchange from David Weinberg to me, dated January 4, 2005, at 3:32 p.m.

15. Attached hereto as Exhibit 10 is a true and correct copy of an email 

exchange between me and David Weinberg, dated January 4, 2005, at 3:52 p.m. Akeso never 

did send the drafts referenced in this email.

16. Attached hereto as Exhibit 11 is a true and correct copy of an email 

exchange between me and David Weinberg, dated March 4, 2005.

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 3 of 9
PAGE 4 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

17. Attached hereto as Exhibit 12 is a true and correct copy of a letter from 

Edward S. Gelfand to me, dated April 29, 2005. I do not recall receiving this letter or how I 

responded.

18. Attached hereto as Exhibit 13 is a true and correct copy of an email from 

David Weinberg to me, dated June 28, 2005. 

19. Attached hereto as Exhibit 14 is a true and correct copy of an email from 

me to David Weinberg, dated August 8, 2005. 

20. Attached hereto as Exhibit 15 is a true and correct copy of a memo signed 

by both Quantum and Akeso on September 27, 2005. Quantum and Akeso had been trying to 

negotiate a new contract for a year and a half at this point, and this memo was intended to 

memorialize where we had gotten in our negotiations. It was also intended to put the past behind 

us and move forward, which is why we included a release in paragraph 3. The release was 

intended to take effect immediately. The other terms were prospective—they would only take 

effect if and when the parties achieved and signed a final agreement.

21. Attached hereto as Exhibit 16 is a true and correct copy of an email 

exchange between me and Curt Hendrix, dated November 7 and 17, 2005.

22. Attached hereto as Exhibit 17 is a true and correct copy of a draft 

“distribution agreement,” from approximately November 2005. 

23. Attached hereto as Exhibit 18 is a true and correct copy of an email from 

me to Curt Hendrix, dated February 6, 2006. Earlier that day, when I spoke to Mr. Hendrix on 

the phone, he acknowledged that the 2002 Contract was no longer in effect but made excuses not 

to put that in writing, which he had also done before. There was no question in my mind that the 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 4 of 9
PAGE 5 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

2002 Contract was expired, and Mr. Hendrix acknowledged that to me on multiple occasions on 

the phone, so I felt he was playing games by refusing to put it in writing. 

24. Attached hereto as Exhibit 19 is a true and correct copy of an email 

exchange between me and Curt Hendrix, dated March 7, 2006.

25. Attached hereto as Exhibit 20 is a true and correct copy of an email from 

me to Eve McClure, dated March 8, 2006. This email accurately summarizes the telephone 

conversation that I had with Curt Hendrix. I did not receive the promised letter.

26. Attached hereto as Exhibit 21 is a true and correct copy of an email 

exchange between me and Curt Hendrix, dated August 26, 2006.

27. Attached hereto as Exhibit 22 is a true and correct copy of an email from 

me to David Weinberg, dated September 14, 2006.

28. Attached hereto as Exhibit 23 is a true and correct copy of an email from 

Curt Hendrix to me, dated March 2, 2007. Mr. Hendrix’s acknowledgement that the 2002 

Contract was no longer in effect made me more comfortable about continuing to do business 

with Akeso. As for the terms that Mr. Hendrix proposed for a new contract, they were 

unacceptable to Quantum, and, like every other proposal over the prior three years, nothing ever 

came of this proposal for a new contract.

29. From October 31, 2004, when the 2002 Contract expired, until February 

2016, when the parties stopped doing business together, I always understood that Quantum and 

Akeso were doing business without a contract. I usually described our relationship after the 

contract expired as an “arrangement” or “accommodation” or “gentleman’s agreement.” Neither 

of us was required to do anything, and either of us could stop doing business with the other at 

any time. Quantum still wanted to purchase migraine tablets from Akeso, however, and Akeso 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 5 of 9
PAGE 6 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

still wanted to use Quantum’s MIGRELIEF mark, so it made sense to try to get along to further 

our mutual interests. Over the years, I mentioned the lack of a contract on numerous occasions 

in conversations with Curt Hendrix. 

30. As far as how we conducted business, Quantum and Akeso’s relationship 

became looser after the 2002 Contract expired. Akeso changed its price several times. Quantum 

changed the percentage it put down on orders. There was no more talk of minimum purchase 

requirements or transferring the trademark, except in failed contract negotiations. We worked 

out which markets and stores we would each sell in, making adjustments and accommodating 

each other as best we could along the way in order to serve our mutual interests in marketing the 

product. There was no point in Quantum and Akeso competing against each other for the same 

customers. I also liked Curt Hendrix and considered him a friend, so I tried to accommodate 

him. It was easier to get along with him if I was accommodating too, because he had a tendency 

to yell and be aggressive about things. I never at any time after October 31, 2004, however, 

believed that either Quantum or Akeso was bound by the expired 2002 Contract. I understood 

that we were doing business together on an at-will basis. 

31. From October 31, 2004, until March 3, 2016, Quantum permitted Akeso, 

at Quantum’s discretion, to use Quantum’s MIGRELIEF trademark, for so long as Akeso 

continued to sell its patented formula migraine tablets to Quantum. After October 31, 2004, 

Quantum never granted Akeso any other rights with respect to its MIGRELIEF trademark. 

32. After October 31, 2004, I never made any representation to Curt Hendrix, 

David Weinberg, or anyone else at Akeso that Quantum would sell its MIGRELIEF trademark to 

Akeso for $25,000. The only representation I made before October 31, 2004, is in the 2002 

Contract. 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 6 of 9
PAGE 7 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

33. I never made any representation to Curt Hendrix, David Weinberg, or 

anyone else at Akeso that, without a contract, Quantum would transfer its MIGRELIEF 

trademark to Akeso at no cost. When we were trying to negotiate a new contract, transfer of the 

trademark with a perpetual license back to Quantum was a proposed term on the table, but those 

negotiations were unsuccessful and we never entered into any contract. The only time I ever 

discussed the possibility of trademark transfer with Akeso was in the context of contract 

negotiations. 

34. From 2004 until 2016, Quantum continued to buy Akeso’s patented 

migraine pills on an at-will basis. 

35. In 2014, I accidentally sent to Curt Hendrix a copy of an internal 

memorandum in which Quantum was contemplating how to stop doing business with Akeso 

without disrupting Quantum’s sales or having a negative effect on Quantum’s MIGRELIEF 

brand. Mr. Hendrix was upset, so I flew down to meet with him, and I thought we smoothed 

things out enough that we would be able to keep doing business with each other. That was the 

beginning of the end of the relationship though. 

36. Attached hereto as Exhibit 24 is a true and correct copy of a letter from 

Curt Hendrix to me, dated November 30, 2015. Quantum was not interested in the proposed 

terms.

37. In February 2016, Akeso gave notice that it would no longer sell migraine 

tablets to Quantum.

38. On March 3, 2016, Quantum revoked permission for Akeso to use its 

MIGRELIEF trademark, which was always conditioned on Akeso’s sale of migraine tablets to 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 7 of 9
PAGE 8 - DECLARATION OF DAVID SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM 

DEFENDANT QUANTUM, INC.’S MOTION FOR SUMMARY JUDGMENT 

Quantum. Akeso has continued to use the mark, however, despite Quantum’s demand to cease 

and desist. 

39. After Quantum stopped purchasing migraine tablets from Akeso, Quantum 

reformulated the product and began selling a new formulation of migraine tablets under its 

MIGRELIEF trademark. Quantum’s new formulation contains Co-Q10, magnesium, and 

riboflavin, whereas, upon information and belief, Akeso’s formulation includes feverfew (aka 

PURACOL), magnesium, and riboflavin. Upon reformulation, Quantum immediately created a 

new label for its product, which contains no reference to feverfew, PURACOL, or Akeso. 

Attached hereto as Exhibit 25 is a true and correct copy of images of Quantum’s current label. 

Quantum also updated its website and marketing materials to reflect the new formulation. 

40. Quantum has notified its customers of the product reformulation, 

including that it no longer contains feverfew (aka PURACOL). Quantum also has asked its 

customers to update their websites and marketing materials to reflect the reformulation. 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the 

foregoing statements are true and correct. 

DATED this 31st day of March, 2017. 

/s/ David Shaw 

David Shaw 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 8 of 9
PAGE 1 - CERTIFICATE OF SERVICE 

CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing DECLARATION OF DAVID 

SHAW IN SUPPORT OF PLAINTIFF/COUNTERCLAIM DEFENDANT QUANTUM, 

INC.’S MOTION FOR SUMMARY JUDGMENT on:

Aaron Brian, OSB #981849 

 Email: abrian@nixonpeabody.com 

Staci Jennifer Riordan, admitted pro hac vice

 Email: sriordan@nixonpeabody.com 

Nixon Peabody LLP 

300 South Grand Avenue, Suite 4100 

Los Angeles, CA 90071 

 Attorneys for Defendant and Counterclaimant 

 by electronic means through the Court’s Case Management/Electronic Case 

File system on the date set forth below; 

 by causing a copy thereof to be emailed to said attorneys at their last-known 

email address on the date set forth below; and/or 

 by mailing a copy thereof in a sealed, first-class postage prepaid envelope, 

addressed to said attorneys’ last-known address and depositing in the U.S. mail at Portland, 

Oregon on the date set forth below. 

DATED this 31st day of March, 2017. 

TONKON TORP LLP

By: s/ Jon P. Stride 

Jon P. Stride, OSB #903887 

Steven D. Olson, OSB #003410 

Sarah Einowski, OSB #093412 

Attorneys for Plaintiff/Counterclaim Defendant 

Quantum, Inc. 

Case 3:16-cv-00334-JE Document 57 Filed 03/31/17 Page 9 of 9