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FILED
DALLAS COUNTY
11/6/2019 10:10AM
FELICIA PITRE
DISTRICT CLERK
Kellie Juricek
CAUSE N0. DC—19-15197
NATURAL BRANDS, INC., § IN THE DISTRICT COURT
§
PLAINTIFF, §
§
V. § 14TH JUDICIAL DISTRICT
§
BEAUMONT JUICE, INC. D/B/A §
PERRICONE JUICE COMPANY AND §
JOHN N. DEMBECK, §
§
DEFENDANTS. § DALLAS COUNTY, TEXAS
PERRICONE’S REQUEST FOR CLARIFICATION OF TEMPORARY INJUNCTION
Defendant Beaumont Juice, Inc. d/b/a Perricone Juice (“Perricone”) moves this Honorable
Court to clarify its Temporary Injunction issued 0n November 1, 2019 in the above-captioned
cause, as follows:
Perricone seeks clarification that sales t0 six national accounts through their
preferred distributors would not violate the Temporary Inj unction.
The Court’s Temporary Injunction includes an “Exhibit A” that contains a list 0f
typewritten customers. Six 0f the typewritten names (BJ’s Brewhouse; Blaze Pizza; Cheesecake
Factory; IPIC Theatre; Top Golf; and, Wetzel’s Pretzels) were stricken in handwriting by the Court
prior to entry 0f its order 0n November 1, 2019. By implication, Perricone interprets the deletion
0f those six names t0 mean that Perricone is not prohibitedfrom “ofleringfor sale 0r selling,
directly 0r indirectly, any lemon or lime juice mixture t0” BJ’s Brewhouse; Blaze Pizza;
Cheesecake Factory; IPIC Theatre; Top Golf; and, Wetzel’s Pretzels. See Temporary Injunction
at 1 (prohibiting such activities only to “the customer entities listed
(Ir (21))
on Exhibit ‘A’ hereto”).
Clarification is needed because Cheesecake Factory and Wetzel’s Pretzels—the two
customers about Whom an extensive amount 0f hearing time was directed for both sides—buy their
-1-
SMRH:4829-0904-2604.3
juice and juice mix products through distributors that are included 0n Exhibit “A” t0 the Temporary
Injunction. Namely, Cheesecake Factory obtains its products through Fresh Point that has
locations throughout the country—three 0f which are listed 0n Exhibit A (Austin, Dallas and San
Antonio) as well as other distributors. Similarly, Wetzel’s Pretzels obtains itsproducts through
Performance Food Group—Which is also listed on Exhibit A to the Temporary Injunction.
Perricone’s position is simple: the Court heard extensive testimony and evidence and
ultimately concluded that Perricone may sell, ‘directly 0r indirectly,’ t0 Cheesecake Factory and
Wetzel’ s Pretzels. Perricone had relationships with Wetzel’ s Pretzels and Cheesecake Factory that
exist irrespective 0f Dembeck’s involvement with those restaurants while employed at NBI and,
equally important, Dembeck has not interacted With those national restaurant accounts While
employed by Perricone. Cheesecake Factory and Wetzel’s Pretzels choose the distributors through
which they Wish to obtain Perricone’s product. Therefore, in an abundance 0f caution, Perricone
seeks entry 0f an Order eliminating any potential ambiguity created When the Court struck certain
national restaurant chains from Exhibit “A” of the Temporary Injunction, as follows:
Before the Court is [Perricone’s] Request for Clarification of
Temporary Injunction. Having considered the request, Plaintiff’s
response, if any, arguments 0f counsel, and for good cause shown,
the request is hereby GRANTED. IT IS THEREFORE ORDERED
THAT nothing in the Temporary Injunction Order issued November
1, 2019 shall prohibit Defendants from offering for sale 0r selling,
directly 0r indirectly, any lemon or lime juice mixture t0 (i) BJ’s
Brewhouse; (ii) Blaze Pizza; (iii) Cheesecake Factory; (iv) IPIC
Theater; (V) Top Golf; and/or (Vi) Wetzel’s Pretzels including
through distributors and buying agents as chosen by the buyer(s).
Prior to seeking this clarification from the Court, Perricone meaningfully conferred with
Plaintiff. (Email dated Nov. 1, 2019; calls 0n Nov. 5 and 6, 2019.) Plaintiff responded by
requesting that Perricone agree to (i) additional prohibitions 0n sales 0f plain juice products not
SMRH:4829-0904-2604.3 2
included in the Temporary Injunction and (ii) move two of the six deleted names back onto
Exhibit A—changes that would amount to a re-writing 0f the Temporary Injunction order.
Unlike Plaintiff, Perricone does not seek t0 rewrite the Court’s order by this Request.
Rather, in an effort t0 avoid filrther motion practice, Perricone offered t0 refrain from selling 0r
offering t0 sell t0 the two customers requested by Plaintiff for the next three months. Perricone
remains willing t0 proceed on that basis to expedite this process.
In sum, Perricone only seeks the Court’s confirmation that ithas not enjoined sales to the
customers hand-stricken from Exhibit A that occur through distributors and buying agents as
chosen by the customer.
Dated: November 6, 2019 Respectfully Submitted,
/s/ Stephen Fox
Stephen Fox
Texas Bar N0. 07337260
sfox@sheppardmullin.com
Amanda L. Cottrell
Texas Bar N0. 24064972
ac0ttrell@sheppardmullin.com
Sascha Henry
Pro Hac Vice Admission
shenry@sheppardmullin.com
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
2200 Ross Avenue, 24th Floor
Dallas, Texas 75201
Tel. (469) 391-7400
Fax (469) 391-7401
Attorneys for All Defendants
SMRH:4829-0904-2604.3 3
CERTIFICATE OF CONFERENCE
On November 1, 20 1 9,I spoke with Plaintiff s attorney, Jeff Hellberg, by phone regarding
the clarification 0f the Court’s Temporary Injunction that Defendants believe is necessary and
discussed in the above motion. I and my colleagues Sascha Henry again conferred by phone with
Messrs. Hellberg and Perque on November 5 and 6, 2019, attempting to resolve the question of
Whether Defendants are allowed t0 sell products t0 Cheesecake Factory and Wetzel’s Pretzels
where the customers direct their purchases through a national distributor 0f their choice included
on Exhibit A t0 the Court’s Temporary Injunction.
/s/ Stephen Fox
Stephen FOX
CERTIFICATE OF SERVICE
The undersigned hereby certifies that 0n November 6, 2019 a true and correct copy 0f the
foregoing document was served 0n the following counsel of record by electronic service:
Chris P. Perque
Bradley Waters
ADAMS & REESE LLP
LyondellBasell Tower
1221 McKinney, Ste. 4400
Houston, Texas 770 1 0
Telephone: 7 1 3-652-5 1 51
Facsimile: 7 1 3-652-5 1 52
Jeffrey W. Hellberg, Jr.
WICK PHILLIPS
3 131 McKinney Avenue, Ste. 100
Dallas, Texas 75204
Telephone: 2 14-692-620
Facsimile: 2 14-692-6255
/S/ Stephen Fox
Stephen Fox
SMRH:4829-0904-2604.3 4
Preview
FILED DALLAS COUNTY 11/6/2019 10:10AM FELICIA PITRE DISTRICT CLERK Kellie Juricek CAUSE N0. DC—19-15197 NATURAL BRANDS, INC., § IN THE DISTRICT COURT § PLAINTIFF, § § V. § 14TH JUDICIAL DISTRICT § BEAUMONT JUICE, INC. D/B/A § PERRICONE JUICE COMPANY AND § JOHN N. DEMBECK, § § DEFENDANTS. § DALLAS COUNTY, TEXAS PERRICONE’S REQUEST FOR CLARIFICATION OF TEMPORARY INJUNCTION Defendant Beaumont Juice, Inc. d/b/a Perricone Juice (“Perricone”) moves this Honorable Court to clarify its Temporary Injunction issued 0n November 1, 2019 in the above-captioned cause, as follows: Perricone seeks clarification that sales t0 six national accounts through their preferred distributors would not violate the Temporary Inj unction. The Court’s Temporary Injunction includes an “Exhibit A” that contains a list 0f typewritten customers. Six 0f the typewritten names (BJ’s Brewhouse; Blaze Pizza; Cheesecake Factory; IPIC Theatre; Top Golf; and, Wetzel’s Pretzels) were stricken in handwriting by the Court prior to entry 0f its order 0n November 1, 2019. By implication, Perricone interprets the deletion 0f those six names t0 mean that Perricone is not prohibitedfrom “ofleringfor sale 0r selling, directly 0r indirectly, any lemon or lime juice mixture t0” BJ’s Brewhouse; Blaze Pizza; Cheesecake Factory; IPIC Theatre; Top Golf; and, Wetzel’s Pretzels. See Temporary Injunction at 1 (prohibiting such activities only to “the customer entities listed (Ir (21)) on Exhibit ‘A’ hereto”). Clarification is needed because Cheesecake Factory and Wetzel’s Pretzels—the two customers about Whom an extensive amount 0f hearing time was directed for both sides—buy their -1- SMRH:4829-0904-2604.3 juice and juice mix products through distributors that are included 0n Exhibit “A” t0 the Temporary Injunction. Namely, Cheesecake Factory obtains its products through Fresh Point that has locations throughout the country—three 0f which are listed 0n Exhibit A (Austin, Dallas and San Antonio) as well as other distributors. Similarly, Wetzel’s Pretzels obtains itsproducts through Performance Food Group—Which is also listed on Exhibit A to the Temporary Injunction. Perricone’s position is simple: the Court heard extensive testimony and evidence and ultimately concluded that Perricone may sell, ‘directly 0r indirectly,’ t0 Cheesecake Factory and Wetzel’ s Pretzels. Perricone had relationships with Wetzel’ s Pretzels and Cheesecake Factory that exist irrespective 0f Dembeck’s involvement with those restaurants while employed at NBI and, equally important, Dembeck has not interacted With those national restaurant accounts While employed by Perricone. Cheesecake Factory and Wetzel’s Pretzels choose the distributors through which they Wish to obtain Perricone’s product. Therefore, in an abundance 0f caution, Perricone seeks entry 0f an Order eliminating any potential ambiguity created When the Court struck certain national restaurant chains from Exhibit “A” of the Temporary Injunction, as follows: Before the Court is [Perricone’s] Request for Clarification of Temporary Injunction. Having considered the request, Plaintiff’s response, if any, arguments 0f counsel, and for good cause shown, the request is hereby GRANTED. IT IS THEREFORE ORDERED THAT nothing in the Temporary Injunction Order issued November 1, 2019 shall prohibit Defendants from offering for sale 0r selling, directly 0r indirectly, any lemon or lime juice mixture t0 (i) BJ’s Brewhouse; (ii) Blaze Pizza; (iii) Cheesecake Factory; (iv) IPIC Theater; (V) Top Golf; and/or (Vi) Wetzel’s Pretzels including through distributors and buying agents as chosen by the buyer(s). Prior to seeking this clarification from the Court, Perricone meaningfully conferred with Plaintiff. (Email dated Nov. 1, 2019; calls 0n Nov. 5 and 6, 2019.) Plaintiff responded by requesting that Perricone agree to (i) additional prohibitions 0n sales 0f plain juice products not SMRH:4829-0904-2604.3 2 included in the Temporary Injunction and (ii) move two of the six deleted names back onto Exhibit A—changes that would amount to a re-writing 0f the Temporary Injunction order. Unlike Plaintiff, Perricone does not seek t0 rewrite the Court’s order by this Request. Rather, in an effort t0 avoid filrther motion practice, Perricone offered t0 refrain from selling 0r offering t0 sell t0 the two customers requested by Plaintiff for the next three months. Perricone remains willing t0 proceed on that basis to expedite this process. In sum, Perricone only seeks the Court’s confirmation that ithas not enjoined sales to the customers hand-stricken from Exhibit A that occur through distributors and buying agents as chosen by the customer. Dated: November 6, 2019 Respectfully Submitted, /s/ Stephen Fox Stephen Fox Texas Bar N0. 07337260 sfox@sheppardmullin.com Amanda L. Cottrell Texas Bar N0. 24064972 ac0ttrell@sheppardmullin.com Sascha Henry Pro Hac Vice Admission shenry@sheppardmullin.com SHEPPARD MULLIN RICHTER & HAMPTON, LLP 2200 Ross Avenue, 24th Floor Dallas, Texas 75201 Tel. (469) 391-7400 Fax (469) 391-7401 Attorneys for All Defendants SMRH:4829-0904-2604.3 3 CERTIFICATE OF CONFERENCE On November 1, 20 1 9,I spoke with Plaintiff s attorney, Jeff Hellberg, by phone regarding the clarification 0f the Court’s Temporary Injunction that Defendants believe is necessary and discussed in the above motion. I and my colleagues Sascha Henry again conferred by phone with Messrs. Hellberg and Perque on November 5 and 6, 2019, attempting to resolve the question of Whether Defendants are allowed t0 sell products t0 Cheesecake Factory and Wetzel’s Pretzels where the customers direct their purchases through a national distributor 0f their choice included on Exhibit A t0 the Court’s Temporary Injunction. /s/ Stephen Fox Stephen FOX CERTIFICATE OF SERVICE The undersigned hereby certifies that 0n November 6, 2019 a true and correct copy 0f the foregoing document was served 0n the following counsel of record by electronic service: Chris P. Perque Bradley Waters ADAMS & REESE LLP LyondellBasell Tower 1221 McKinney, Ste. 4400 Houston, Texas 770 1 0 Telephone: 7 1 3-652-5 1 51 Facsimile: 7 1 3-652-5 1 52 Jeffrey W. Hellberg, Jr. WICK PHILLIPS 3 131 McKinney Avenue, Ste. 100 Dallas, Texas 75204 Telephone: 2 14-692-620 Facsimile: 2 14-692-6255 /S/ Stephen Fox Stephen Fox SMRH:4829-0904-2604.3 4