united states district court eastern district of …...nucific as supported by the fact that...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

GOLO, LLC, : : Plaintiff, : : vs. : NO. 2:17-cv-02714-GAM : HIGHYA, LLC; and BRIGHTREVIEWS, LLC, :

: :

: Defendants. :

(PROPOSED) ORDER GRANTING PLAINTIFF’S MOTION TO AMEND THE JUDGMENT AND PERMIT FILING OF A SECOND AMENDED COMPLAINT

AND NOW, this _____ day of ________________, 2018, upon consideration of

Plaintiff’s Motion to Alter or Amend the Judgment, and any response thereto, the Court hereby

GRANTS said Motion. The Court’s May 4, 2018 Order is HEREBY AMENDED to provide

that Plaintiff is GRANTED leave to file a Second Amended Complaint within seven (7) days of

this Order.

SO ORDERED:

_________________________________________ The Honorable Gerald A. McHugh U.S. District Court Judge

Case 2:17-cv-02714-GAM Document 27 Filed 05/18/18 of 52

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

GOLO, LLC, : : Plaintiff, : : vs. : NO. 2:17-cv-02714-GAM : HIGHYA, LLC; and BRIGHTREVIEWS, LLC, :

: :

: Defendants. :

PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGEMENT AND FOR LEAVE TO AMEND COMPLAINT – F.R.C.P. 15 AND 59

Plaintiff Golo, LLC, by and through its undersigned counsel, respectfully requests that

the Court alter its May 4, 2018 Order granting Defendants’ Motion to Dismiss to provide an

opportunity to Plaintiff to Amend the Complaint. Dkt. No. 25.

1. In its Opinion, the Court recognized that “liability can arise under the

Lanham Act if websites purporting to offer reviews are in reality stealth

operations to disparage a competitor’s product while posing as a neutral

party.” Id. at 10.

2. Ultimately, however, the Court concluded that the Amended Complaint

did not allege sufficient facts for the Court to plausibly conclude that

Defendants’ websites, purporting to be neutral review websites, were, in

fact, “shams that disguise an underlying financial scheme that Defendants

are pursuing to Plaintiff’s detriment.” Id. at 11.


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3. While Plaintiff appreciates, though respectfully disagrees, with the Court’s

conclusion, Plaintiff respectfully requests an opportunity to amend the

Complaint to provide additional evidence demonstrating the plausibility

that Defendants’ website are used for the purpose of aiding Plaintiff’s

competitors to Plaintiff’s detriment.

4. Specifically, Plaintiff wishes to amend the Complaint to allege additional

facts plausibly suggesting an affiliation between Defendants and one of

Plaintiff’s competitors, Nucific.

5. To that end, Plaintiff will allege that Defendants are connected with

Nucific as supported by the fact that Defendants and the corporate parent

of Nucific share a place of business. In other words, of the millions of

office spaces in the United States, Defendants and the parent company of

Nucific happen to share not only the same address but the same exact

office within that place of business.

6. For example, Zoom.info shows identifies Defendant HighYa, LLC as

maintaining a place of business at 19801 Nordhoff Place, Unit 111,

Chatsworth, California 91311.


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7. While that fact may be unremarkable on its own, another entity – Whole

Body Research, LLC – is also listed as having a place of business by the

Better Business Bureau at 19801 Nordhoff Place, Chatsworth, California,

91311 and, indeed, is associated with the same exact suite within that

facility. See https://www.bbb.org/losangelessiliconvalley/business-

reviews/vitamins-and-supplements/whole-body-research-in-chatsworth-

ca-1023398.

WHOLE BODY RESEARCH, LLC

(1) 5 years in business

19801 Nordhoff Pl #111

Chatsworth, CA 91311-6612

8. Whole Body Research, LLC is, in fact, a related entity to Pacific Health

Supplements, LLC d/b/a Nucific. Indeed, in a Complaint recently filed in

the United States District Court for the Central District of California by


https://www.bbb.org/losangelessiliconvalley/business-reviews/vitamins-and-supplements/whole-body-research-in-chatsworth-ca-1023398



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Whole Body Research, LLC and Pacific Supplements Health, LLC d/b/a

Nucific, along with four other entities, the six Plaintiffs identified

themselves as “six related limited liability companies in the business of

creating, marketing and selling health, wellness and beauty brands and

products online. Plaintiffs spend hundreds of thousands of dollars

developing, testing and fine-tuning their online advertisements and

websites to generate business through direct response marketing and

attract consumers to their websites.” See Exhibit “A” at ¶1.

9. Plaintiff respectfully suggests that these additional allegations, accepted as

true as they must be at this time, are more than sufficient to plausibly

suggest an affiliation between Defendants and Pacific Supplements

Health, LLC d/b/a Nucific, a direct competitor of Plaintiff.

10. Indeed, as the Court noted its May 4, 2008 Opinion, it relied, in part, on its

“common sense” in evaluating the plausibility of Plaintiff’s allegations.

See Dkt. No. 25 at 13 (“As there has been no discovery, I make these

observations only as part of a ‘common sense’ evaluation of the

plausibility of Plaintiff’s conclusory allegation that Defendants’ websites

are not what they purport to be.”).

11. Should the Court permit Plaintiff to file a Second Amended Complaint,

Plaintiff will include other allegations demonstrating that “common sense”

suggests an affiliation between Defendants and the competitors identified

above.


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12. Specifically, “common sense” would suggest that the percentage of online

reviews for a product would be largely commensurate with its share of the

relevant market.

13. Highya.com, however, in no way comports with what common sense

would suggest. For example:

a. 24 Hour Fitness, operator of over 400 gyms in the United States,

has two reviews on Highya.com. https://www.highya.com/24-

hour-fitness-reviews (“24 Hour Fitness is the gym with the biggest

membership in the country”);

b. Nurtisystem, likewise, has two reviews on Highya.com.

https://www.highya.com/nutrisystem-reviews;

c. Planet Fitness has five reviews on Highya.com.

https://www.highya.com/planet-fitness-reviews

14. Given the virtually non-existent number of reviews on Highya.com for

these nationally known and recognized weight loss and fitness companies,

one would expect a product like Nucific to have an even smaller number

of reviews.

15. Instead, the product with second most number of reviews on Highya.com

is “BioTrust” with 152 reviews. https://www.highya.com/review-

topic/weight-loss#list.


https://www.highya.com/24-hour-fitness-reviews

https://www.highya.com/24-hour-fitness-reviews

https://www.highya.com/nutrisystem-reviews

https://www.highya.com/planet-fitness-reviews

https://www.highya.com/review-topic/weight-loss#list

https://www.highya.com/review-topic/weight-loss#list

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16. The weight loss product with the most reviews is Nucific. But not only

does Nucific have the largest number of reviews on Highya.com, it has

1046 reviews – almost ten times the number of reviews as the next highest

product. Id.; see also id. (showing that Whole Body Research itself has

the third highest number of reviews).

17. Indeed, the evidence of an affiliation between Defendants and the Whole

Body Research affiliated entities is even more damning when one looks at

the products within the “Health and Beauty” section of Highya.com.

https://www.highya.com/review-category/health-and-beauty.

18. The products with the six largest number of reviews are as follows: 1)

Vital Reds by Gundry MD; 2) Nucific Bio X4; 3) VitaPulse from

Princeton Nutrients; 4) Hubble Contacts; 5) Probiotic America; 6) Gundry

MD Primal Brands. Id.

19. Other than Hubble Contacts, the “Health and Beauty” products on

Highya.com with the largest number of reviews are sold by Nucific,

Probiotic America, Princeton Nutrients and two by Gundry MD. Id.

20. Every single one of these products is affiliated with Whole Body

Research. See Exhibit “A” at ¶6-10 (identifying the following entities as

related companies – Probiotic America, LLC, Pacific Supplements, LLC

d/b/a Nucific, Agoura Health Products, LLC d/b/a Gundry MD, LLC, and

Princeton Nutrients, LLC).


https://www.highya.com/review-category/health-and-beauty

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21. Plaintiff respectfully requests that the Court amend/alter its May 4, 2018

Order to provide Plaintiff with an opportunity to Amend the Complaint to

assert these facts, which clearly demonstrate a plausible relationship

between Defendants and Plaintiff’s competitors. See Fed. R. Civ. P.

15(a)(2) (“The court should freely give leave when justice so requires.”),

F.R.C.P. 59.1

Date: May 18, 2018 /s/ M. Kelly Tillery M. Kelly Tillery (PA 30380) PEPPER HAMILTON LLP Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 215.981.4401 215.981.4750 (fax) [email protected] Adam B. Fischer (PA 314548) PEPPER HAMILTON LLP 500 Grant Street, Suite 5000 Pittsburgh, PA 15219 412.454.5000 412.281.0717 (fax) [email protected] Attorneys for Plaintiff, GOLO, LLC

1 While Plaintiff respectfully submits that the foregoing allegations are more than sufficient to plausibly

allege an affiliation between Defendants and Plaintiff’s competitors, Plaintiff alternatively requests that the Court also permit limited discovery into the affiliation between Defendants and the entities identified above. Where there is smoke, there is most often fire.


mailto:[email protected]

mailto:[email protected]

EXHIBIT A


CERTIFICATE OF SERVICE

I, M. Kelly Tillery, hereby certify that on May 15, 2018, I caused a true and

correct copy of the foregoing Motion to Alter or Amend the Judgment to be served via this

Court’s ECF system upon all counsel of record.

/s/ M. Kelly Tillery M. Kelly Tillery


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