[00:00:03] Speaker 02:
Mr. Kitta, is that the way you said?

[00:00:05] Speaker 02:
Kitta, your honor.

[00:00:06] Speaker 02:
Kitta, okay.

[00:00:07] Speaker 02:
Mr. Kitta, welcome.

[00:00:08] Speaker 03:
Good morning, your honor.

[00:00:09] Speaker 02:
Please proceed.

[00:00:10] Speaker 03:
Thank you.

[00:00:10] Speaker 03:
May it please the court.

[00:00:11] Speaker 03:
My name is Matthew Kitta.

[00:00:13] Speaker 03:
I represent defendant and appellant Jack Olock in this proceeding.

[00:00:18] Speaker 03:
First, I'd like to thank the court for indulging us with the opportunity to file extended briefs on both sides.

[00:00:24] Speaker 03:
As you are aware, this case involved a 20-day trial, tens of thousands of pages of documents, and lots of issues on appeal.

[00:00:32] Speaker 02:
We would have been disappointed given the number of evidentiary objections if you didn't file additional papers.

[00:00:39] Speaker 03:
This is starting better than I thought.

[00:00:40] Speaker 03:
Thank you very much.

[00:00:43] Speaker 03:
This case, notwithstanding all the legal authorities that were cited by both sides, appears to have highlighted that this court has not spoken on one particular issue.

[00:00:54] Speaker 03:
And that is, if a party commissions a study, a corporation, and the senior management of that corporation relies on its results, and they make business decisions in accordance with those results,

[00:01:07] Speaker 03:
But they later realize that that study doesn't really help them in a lawsuit that they want to file against a competitor.

[00:01:15] Speaker 03:
And they attempt to then exclude the results on the basis that it's not reliable.

[00:01:21] Speaker 03:
What does the opponent have to do to have the study admitted?

[00:01:26] Speaker 03:
There is a lot of law on what you need to do to get your own studies in.

[00:01:30] Speaker 03:
And there's a lot of law on what you need to do to keep somebody else's studies out.

[00:01:34] Speaker 03:
But when your opponent has a study that it is trying to keep out, what do we do?

[00:01:39] Speaker 02:
But, Councilman, I know this goes to the heart of what you're talking about here.

[00:01:43] Speaker 02:
You've got generally accepted principles.

[00:01:46] Speaker 02:
Let's just take a hypothetical.

[00:01:48] Speaker 02:
You've got company A, and they come up.

[00:01:52] Speaker 02:
They'd say, OK, we want to have this result.

[00:01:54] Speaker 02:
So let's concoct a study.

[00:01:57] Speaker 02:
Doesn't comply with any of the principles.

[00:01:59] Speaker 02:
Let's use it in some of our advertising.

[00:02:00] Speaker 02:
Let's use it in something.

[00:02:03] Speaker 02:
But it doesn't comply.

[00:02:05] Speaker 02:
Then you get into litigation and you have the same situations you have here.

[00:02:11] Speaker 02:
The company B wants to use the study that didn't comply in its, if you will, rebuttal.

[00:02:20] Speaker 02:
You still get down to the basic problem that in the court, you've got to have, if you're going to use the study, it's got to meet the generally accepted principles.

[00:02:29] Speaker 02:
I think that's your argument, is it not?

[00:02:31] Speaker 02:
You're saying that even though,

[00:02:34] Speaker 02:
It may not have complied with general acceptor principles.

[00:02:36] Speaker 02:
They used it.

[00:02:37] Speaker 02:
We ought to be able to respond as correct.

[00:02:40] Speaker 03:
Yeah, and I think this court's precedent in Southland sod and in Delbert to Suggested if not because it was the direct holding of the case Suggested that if a survey is prepared in advance of litigation and a party relies on it that Provides it with the indicia not only of authenticity, but of reliability that

[00:03:04] Speaker 03:
would allow it to go before the jury.

[00:03:05] Speaker 03:
It's no longer just taking a bunch of numbers and sending it back to the jury room.

[00:03:10] Speaker 03:
It's essentially saying the reason you're seeing this is because that particular party thought it was important.

[00:03:16] Speaker 03:
Not necessarily even for the truth of the matter asserted, although it could be.

[00:03:20] Speaker 03:
The point being, if they are arguing, as is in this case, that bang health drink use of super creatine is

[00:03:32] Speaker 03:
has caused us $270 million worth of damages.

[00:03:36] Speaker 03:
And yet you've commissioned a study that says only 3% of people purchase bank energy for that reason.

[00:03:43] Speaker 03:
And you design your products such that they're consistent with that study.

[00:03:48] Speaker 03:
Shouldn't the jury be able to know that you had that information?

[00:03:52] Speaker 03:
And when they come to answer the jury interrogatory about, you know, they're instructed as the definitions of material and how damages must flow from material misrepresentations, why shouldn't the jury be allowed to see the very information?

[00:04:05] Speaker 02:
Does it matter whether the company knows that the, in this case, 3% was false or true?

[00:04:15] Speaker 02:
Does it matter whether it can be admitted later on?

[00:04:18] Speaker 03:
Your Honor, yes, and I'll give you a specific example why.

[00:04:21] Speaker 03:
During trial, Monster's president, vice president for the Americas, gave testimony.

[00:04:30] Speaker 03:
And at the time that she wrote the Witton sworn declaration saying that Monster had, it was putting all of its interest towards creatine.

[00:04:43] Speaker 03:
The only information that they had at that time,

[00:04:46] Speaker 03:
was the survey they commissioned saying that creatine was not important.

[00:04:51] Speaker 03:
And when we attempted to cross-examine the senior vice president for the Americas as to whether she was telling the truth under oath, we were told that we could not even refer to that study because the underlying data for whoever compiled it hadn't, that information didn't show that it was an accurate study.

[00:05:10] Speaker 01:
Right, but the court gave you the opportunity, even a continuance, to depose someone

[00:05:16] Speaker 01:
who composed, worked on that study, to testify, to authenticate it, you say, to show it complied with generally accepted survey principles, and you didn't do it.

[00:05:27] Speaker 03:
You're correct, Your Honor.

[00:05:28] Speaker 01:
And why is that?

[00:05:29] Speaker 03:
Well, I think, if I may be so bold, the better question here is not why didn't they do that, but why should they have to?

[00:05:37] Speaker 03:
Why should I, who has to get their information in that we know they relied on, why do I have to do their homework and show why it's reliable?

[00:05:47] Speaker 03:
Why isn't it sufficient for me to say, but they relied on it?

[00:05:50] Speaker 01:
So you want it to be self-authenticating because it was done by the other side?

[00:05:54] Speaker 03:
With a limiting instruction.

[00:05:56] Speaker 03:
if necessary, saying that this information is admitted for purposes of seeing what they made their decision on, not for the truth of whether 3% of users have created it.

[00:06:07] Speaker 01:
You didn't even want to get the survey in.

[00:06:09] Speaker 01:
You wanted to get in just the PowerPoint summary of the survey, right?

[00:06:12] Speaker 03:
Yes, Your Honor, and it goes to my next point.

[00:06:15] Speaker 03:
The InfoScout survey, which is what we've been talking about throughout, is a 19-page document.

[00:06:21] Speaker 03:
What we were trying to get into evidence through Scott DeLorme, through Emily Tier, were not just the survey documents.

[00:06:30] Speaker 03:
It was the documents that they created from the survey.

[00:06:33] Speaker 03:
They took the survey information from InfoScout and created their own PowerPoints and wrote their own reports and made their own recommendations and sent emails guiding strategy for the company.

[00:06:44] Speaker 03:
And yet, when it came time for us to cross-examine them, we couldn't even mention the scout, the InfoScout survey, much less get the documents that they created into evidence.

[00:06:55] Speaker 02:
But, Counsel, I guess I'm saying I, what Judge Gellman's talking about is what has troubled me.

[00:07:03] Speaker 02:
District judges do things differently.

[00:07:06] Speaker 02:
But my reading in the record here is that the judge really gave you, said, look, one new discovery,

[00:07:12] Speaker 02:
want to do more, you want to get whatever you need to to get what you want in good, but you can't use the survey because it doesn't comply.

[00:07:19] Speaker 02:
There are lots of ways to skin a cat, and it seems like that even though the court said you can do it this way, you said I don't want to do it, I want to do it my way, and the court said no.

[00:07:29] Speaker 03:
Well, I think the timing of how these arguments were presented is also important here.

[00:07:34] Speaker 03:
The parties filed, Monster filed its motion in limiting in January of 2022 and the response came in right afterwards.

[00:07:41] Speaker 03:
And the motion that Monster filed said that they wanted to keep out any argument and any evidence in any reference to this survey whatsoever.

[00:07:50] Speaker 03:
And the response came back citing Southland sods hiding diaper to saying that's that's not the law.

[00:07:55] Speaker 03:
You can't do that.

[00:07:56] Speaker 03:
And the trial court sort of agreed with us, but it didn't do so until August 2nd.

[00:08:02] Speaker 03:
in a case that was set for trial on September 6th when discovery was closed.

[00:08:06] Speaker 03:
Did our trial counsel make a gamble that that wouldn't be necessary because of this court statement in South Winsod or this court statement in Delbert 2?

[00:08:13] Speaker 03:
Perhaps.

[00:08:14] Speaker 03:
But then look at the ruling itself.

[00:08:16] Speaker 03:
What did the court say?

[00:08:17] Speaker 03:
It said when it issued its written ruling,

[00:08:20] Speaker 03:
that if an expert were able to prove it up, then that information could come in.

[00:08:25] Speaker 03:
It certainly never said that you cannot even use it to impeach a witness who denies its existence or says something that's materially adverse to what our declaration says.

[00:08:37] Speaker 01:
Well, but the court allowed your experts to say that they relied in part on the information in that survey, about only 3%.

[00:08:44] Speaker 01:
relied on, the customers relied on a super CREA team.

[00:08:47] Speaker 03:
Agreed, your honor.

[00:08:48] Speaker 03:
And although we could say that part of this case is a battle of the experts.

[00:08:53] Speaker 03:
Do you believe that people want 3% or do you believe their survey expert who said it was 64%?

[00:08:59] Speaker 03:
But it's more than just that.

[00:09:01] Speaker 03:
If their vice president for the Americas testifies that this was our goal,

[00:09:06] Speaker 03:
and the only information that she would have had says something completely the opposite.

[00:09:10] Speaker 03:
And she's made a statement under oath.

[00:09:12] Speaker 03:
Why am I not allowed to use the evidence that they gave us to impeach her and say, don't believe what she's saying?

[00:09:19] Speaker 03:
To suggest that because somewhere down the line, in a trial that lasted 20 court days, but over the course of a month, that hearing one person say, oh yes, a 3% number, or even two people say that, over the course of a month,

[00:09:34] Speaker 03:
As opposed to having an exhibit, being able to discuss it in closing arguments, which was prohibited here.

[00:09:40] Speaker 03:
Or being able to cross-examine somebody with the, if you will, are you lying, then are you lying now?

[00:09:45] Speaker 03:
That's an essential part of a defense.

[00:09:47] Speaker 03:
And we're talking about $270 million against an individual.

[00:09:52] Speaker 02:
Councilman, let me ask you this.

[00:09:56] Speaker 02:
I understand you're upset about this, but what about

[00:10:01] Speaker 02:
Abuse of discretion involving an evidentiary issue.

[00:10:05] Speaker 02:
We've talked about the fact that the court allowed your experts to refer to this 3%, to refer to the survey.

[00:10:12] Speaker 02:
So all of the data, if you will, that would stand out were testified about.

[00:10:18] Speaker 02:
You just wanted a chart.

[00:10:19] Speaker 02:
Now, I understand that.

[00:10:21] Speaker 02:
I get that as a trial preparation presenting it to the jury.

[00:10:24] Speaker 02:
But on an abuse of discretion standard, how do we reverse that?

[00:10:30] Speaker 02:
Two answers your honor and I you can save your time and do it afterwards if you want I was going to ask for three minutes for a bottle may still You're almost down there, but yeah you whatever you want.

[00:10:41] Speaker 03:
Thank you Two things first is in our brief we noted that the disc the standard of review here is

[00:10:50] Speaker 03:
If this court were to conclude that the trial court's ruling effectively prohibited the from asserting a defense, whether it's an affirmative defense like unclean hands or actually defending the argument that this was not a material misrepresentation.

[00:11:05] Speaker 03:
that the court should review it de novo, not for abuse of discretion.

[00:11:09] Speaker 02:
Well, you're saying that even though the experts did testify about the 3%, your experts did.

[00:11:14] Speaker 02:
In other words, the evidence that you wanted to get in in the form of a chart came in in a different way, and you're saying that it would change this from an abuse of discretion to a different standard?

[00:11:27] Speaker 03:
If I may really quickly, two things.

[00:11:29] Speaker 03:
It's not just the chart.

[00:11:31] Speaker 03:
It's the emails and the annotations

[00:11:35] Speaker 03:
and the presentations that they put together from the chart that they received from InfoScout.

[00:11:41] Speaker 03:
So to answer your question, should this court look at it for an abuse of discretion if he suggests that you can't use this information to impeach one of the highest people in their country in what appears to be a clear lie?

[00:11:54] Speaker 03:
But you could do that, though.

[00:11:56] Speaker 02:
Through your experts, I mean, you could say something about the 3%.

[00:12:02] Speaker 02:
You had the opportunity to do that.

[00:12:03] Speaker 03:
our expert was able to say that monster-sponsored research at some time with an unnamed author suggested 3% was the goal.

[00:12:16] Speaker 03:
That is not nearly as powerful as being able to show a document that somebody else, that the witness on the stand emailed to another person that says exactly the opposite.

[00:12:26] Speaker 03:
Excuse me, please.

[00:12:28] Speaker 03:
If I could reserve the balance of my time.

[00:12:30] Speaker 02:
Please do.

[00:12:31] Speaker 02:
Thank you.

[00:12:31] Speaker 02:
Please do.

[00:12:33] Speaker 02:
Very well, all right.

[00:12:35] Speaker 02:
Let's hear now from... Is it Liebman?

[00:12:40] Speaker 00:
It's LeBeau.

[00:12:41] Speaker 02:
Oh, I'm sorry.

[00:12:42] Speaker 00:
It's a hard one you're on.

[00:12:44] Speaker 02:
The French one, right?

[00:12:45] Speaker 00:
It is a French one.

[00:12:45] Speaker 02:
Okay, sorry about that.

[00:12:46] Speaker 00:
No problem.

[00:12:48] Speaker 00:
Alison LeBeau from Houston, Hennegan, on behalf of Monster Energy Company.

[00:12:53] Speaker 00:
So I'll start off where

[00:12:55] Speaker 02:
uh... my colleague uh... opposing council just left office that this is an evidentiary ruling and it's reviewed for abuse of discretion that's a standard they of course would like it to change what's your best argument that there is nothing in this case that warranted change in our standard review

[00:13:12] Speaker 00:
Well, nothing warrants the change for the reasons your honor hinted at is that this isn't clearly a case in which the case they cited where a defense was, an affirmative defense was struck in its entirety self-defense because it wasn't self-defense as a matter of law here.

[00:13:28] Speaker 00:
They were allowed to talk about the InfoScout survey.

[00:13:31] Speaker 00:
They just weren't allowed to display it to the jury.

[00:13:34] Speaker 00:
This is a quintessential exclusion of particular evidence, which is always going to... May I ask you this?

[00:13:40] Speaker 02:
It's a big record, but in addition to the reference to the information in the study by the experts, what other information

[00:13:50] Speaker 00:
was allowed in what what was allowed for purposes of cross-examining monsters witnesses so the in this this is noted by the court in its denying the new trial motion they were allowed to ask our experts about info scout to try to lay the foundation the court gave them that opportunity they asked monster witnesses basically almost all of them they got on the stand if they knew anything about it and none of them did and that's and that's the the court

[00:14:18] Speaker 00:
cited that in denying the new trial motion and that's in the first volume of the supplemental record at page 10.

[00:14:27] Speaker 00:
So they did try to lay the foundation with monster folks and just weren't able to do it because it is not a monster commissioned study.

[00:14:37] Speaker 00:
This was a study done by a third party.

[00:14:39] Speaker 00:
And as your honors aptly noted, they were given the opportunity to take discovery against this third party.

[00:14:46] Speaker 00:
And part of our motion to compel was based on the fact that no one could lay the groundwork for these generally accepted principles, that defendants themselves admitted that.

[00:14:57] Speaker 00:
They filed a motion to compel long before trial where they said, and I'm quoting, VPX cannot reasonably analyze any of the final InfoScout reports InfoScout has produced.

[00:15:10] Speaker 00:
without the appropriate context provided by the actual data underlying their findings, documents reflecting how the survey design iterated over time before it became final, and communications regarding why a particular survey's design was changed.

[00:15:26] Speaker 00:
That's in volume four of the record at 606 to 607.

[00:15:31] Speaker 00:
After that, defendants actually went out and got an order allowing them to take the deposition of Info Scout to get this information.

[00:15:40] Speaker 00:
For some reason, they declined not to do that.

[00:15:43] Speaker 02:
And it was got the third party, right?

[00:15:45] Speaker 00:
The third party.

[00:15:46] Speaker 00:
And by the way, they got that order allowing them to take the deposition in June 15 of 2021, more than a year before trial.

[00:15:55] Speaker 00:
So my opposing counsel said something about you have to consider the time.

[00:15:59] Speaker 00:
The timing shows there was plenty of time for them to take this and get this discovery if they wanted.

[00:16:04] Speaker 00:
They just declined to do it.

[00:16:08] Speaker 02:
And if they had

[00:16:09] Speaker 02:
Taking the deposition of the third party who prepared it, I assume, they could ask pretty much whatever they wanted about how the report was prepared and its conclusions and so on, right?

[00:16:17] Speaker 00:
Exactly right.

[00:16:18] Speaker 00:
And as the judge found in his motion and limine order, he rejected our arguments on reliability of the survey and focused only on foundational issues about generally accepted principles.

[00:16:30] Speaker 00:
So had they been taking the deposition and presumably been able to lay the foundation, there's no question it would have come in.

[00:16:37] Speaker 00:
And it's not an abuse of its discretion for the judge to have determined that because they didn't do those things and satisfy the foundation requirements that this court

[00:16:49] Speaker 00:
has set forth that it does not come in.

[00:16:53] Speaker 00:
Even then, as Your Honors noted, they were given wide latitude to have their experts talk about this at trial.

[00:17:02] Speaker 00:
Among other things, their survey expert testified that he reserved

[00:17:10] Speaker 00:
consumer research conducted by, produced by Monster in this case.

[00:17:15] Speaker 00:
He testified that survey was not done for litigation, which he considered important because it wasn't tainted by litigation bias.

[00:17:24] Speaker 00:
That's at volume four of the supplemental record at 850.

[00:17:29] Speaker 00:
He then testified that he did his own survey.

[00:17:32] Speaker 00:
That survey came in and that the results of his survey, 3% of people thinking super creatine was important, was corroborated by the Monster Commission survey.

[00:17:44] Speaker 00:
He even put up a demonstrative slide that said, quote, monster commission research showed super creatine and creatine are immaterial.

[00:17:55] Speaker 02:
So from your perspective, the trial judge

[00:17:58] Speaker 02:
believed that the plaintiffs in this case had plenty of opportunity to present this issue through experts, through cross-examination, through discovery, et cetera, et cetera.

[00:18:11] Speaker 02:
And if they didn't do it, that's their problem.

[00:18:15] Speaker 00:
That's exactly right.

[00:18:16] Speaker 00:
And the only thing they weren't allowed to do was put up the InfoScout slides themselves.

[00:18:23] Speaker 00:
The judge's motion-limiting order said rightfully, you can use this with experts to talk about their opinions.

[00:18:31] Speaker 00:
What you can't do is introduce it as standalone evidence, because you haven't laid the proper foundation.

[00:18:37] Speaker 00:
And that ruling is not only not abuse of discretion, but in fact, correct.

[00:18:43] Speaker 00:
And I want to go back a little bit to, we talked a little bit about the standard, the generally accepted survey principle standard.

[00:18:54] Speaker 00:
In the appellant's brief, they talk about how the court applied the wrong standard.

[00:19:00] Speaker 00:
I just want to make clear that the court, in fact, actually applied the standard that we have been discussing.

[00:19:07] Speaker 00:
Quoted this court's decision in enj gala winery.

[00:19:11] Speaker 00:
That's the same standard that we've been discussing.

[00:19:14] Speaker 00:
It's the same standard that the That opposing counsel put in his brief.

[00:19:20] Speaker 00:
It's even the same case that was cited so there's no merit to the court that That's the standard that the district judge applied was incorrect.

[00:19:30] Speaker 01:
It was the right standard You have to prove your client monster had to prove that

[00:19:36] Speaker 01:
that the super creatine was false advertising and it was material to a consumer.

[00:19:42] Speaker 01:
If you can't prove materiality, you don't satisfy all the conditions, and you agree with that principle, right?

[00:19:48] Speaker 01:
I agree with that.

[00:19:49] Speaker 01:
Well, why?

[00:19:49] Speaker 01:
What has Monster, what proof is there that super creatine was

[00:19:54] Speaker 01:
Material to a consumer of that it's a great question.

[00:19:58] Speaker 00:
There's overwhelming evidence of that the jury's heard Mr. Oaks own testimony on the stand where he acknowledged writing our Patented water stable super creatine is what separated bang from every other energy drink on the market That's at the volume three of the supplemental record at 577.

[00:20:20] Speaker 00:
That's mr.. Oaks testimony and

[00:20:22] Speaker 00:
The Instagram post that is also in the record in which Mr. Olock wrote that, that's volume two of the supplemental record at 273.

[00:20:32] Speaker 00:
VPX's executive vice president of sales also testified on this issue.

[00:20:38] Speaker 00:
He said super creatine was Bang's most important distinguishing feature for purposes of sales.

[00:20:45] Speaker 00:
Both Mr. Awok and Mr. Bukhovy, who was the vice president, testified that VPX was the first drink ever with water-stable creatine.

[00:20:58] Speaker 00:
That's that three supplemental record.

[00:21:00] Speaker 00:
517 and 512 and I got an approved show what they really had no super creatine and it's exactly right It wasn't there was no creatine in the product at all and that's what we were able to prove at trial also the the we were able to prove that it was material because the bank can and we have photos of those in the record and

[00:21:20] Speaker 00:
at 2 of the supplemental records, 253, the bank says super creatine on the front.

[00:21:27] Speaker 00:
Very tough.

[00:21:29] Speaker 00:
And then there were posts where Mr. Owock called super creatine arguably the greatest innovation in the history of sports nutrition and beverages.

[00:21:38] Speaker 00:
That's at volume one of the supplemental record of 133.

[00:21:41] Speaker 00:
So with all of this overwhelming evidence, that's even before you get to the surveys showing that we had a survey conducted by an individual.

[00:21:52] Speaker 00:
He used to be the chief statistician for the census.

[00:21:56] Speaker 00:
And he conducted a survey showing that super creatine mattered.

[00:21:59] Speaker 00:
But Mr. Olock and VPX's own statements about how important super creatine was to consumers and to their

[00:22:07] Speaker 00:
uh... into the sales of bang this is overwhelming evidence of its materiality and the jury just didn't believe mister oak statements at trial that no one buys super creds known by staying because of super creating the info sort of sports are showed the same thing and i think three percent was material

[00:22:26] Speaker 01:
Or at least that was the most important factor.

[00:22:29] Speaker 00:
That's right.

[00:22:30] Speaker 00:
And the most important factor in that one, obviously, the reliability wasn't the reason the survey didn't come in.

[00:22:38] Speaker 00:
But I will note that the survey surveyed women.

[00:22:42] Speaker 00:
And creatine and supercreatine are actually important to men, women.

[00:22:46] Speaker 00:
It's a gendered issue on that in particular.

[00:22:50] Speaker 00:
But that wasn't the reason it didn't come in.

[00:22:52] Speaker 00:
But our experts did a survey that surveyed

[00:22:55] Speaker 00:
both genders and found that super creatine was material to folks, not everyone, but to a significant number of consumers, and then our damages expert quantified both

[00:23:08] Speaker 00:
how effective that was in boosting Bang's sales and how much it hurt Monster's sales because Bang took sales that would have otherwise gone to Monster.

[00:23:18] Speaker 00:
And with all of that information in, the jury just believed Monster's theory of the case and not Mr. Oaks.

[00:23:30] Speaker 01:
that OWACA is not contesting the amount of the judgment.

[00:23:33] Speaker 01:
That's not one of the issues on appeal.

[00:23:34] Speaker 00:
That is not one of the issues on appeal.

[00:23:36] Speaker 00:
And we did have a damages expert who put forth and went through loads of testimony on how those numbers were calculated.

[00:23:45] Speaker 00:
And it started with the effect on sales, and it was reduced by the amount of consumers that actually care about super creatine versus those that don't.

[00:23:54] Speaker 00:
How many sales

[00:23:55] Speaker 00:
Did that take away from Monster as opposed to Red Bull or other energy drinks?

[00:23:59] Speaker 00:
So there was a significant analysis that went into that.

[00:24:02] Speaker 00:
And the jury adopted our expert's number and believed his analysis to be thoughtful and credible.

[00:24:07] Speaker 02:
Can I go back just for a second to the survey?

[00:24:10] Speaker 02:
I gather your position is even if the charge had gone in, it would have gone to weight.

[00:24:18] Speaker 02:
Nothing else.

[00:24:18] Speaker 02:
You had overwhelming evidence that showed what OAC

[00:24:22] Speaker 00:
claimed that that's exactly right there's no harm because of the overwhelming evidence that super creating matter to folks and in in addition mister all experts were allowed to testify on on materiality issues i've talked about that a little bit before but mister all ox

[00:24:46] Speaker 00:
own damages expert admitted that a survey that he adopted and relied on in his report showed that up to 21 percent of people actually cared about creatine.

[00:25:00] Speaker 00:
So that was another thing on the side of the scale that

[00:25:03] Speaker 00:
that the InfoScout survey wouldn't have mattered because they heard about it.

[00:25:07] Speaker 00:
They knew the 3% number.

[00:25:09] Speaker 00:
They knew that his experts claimed that they were, that number was corroborating their results.

[00:25:15] Speaker 00:
But again, Damage's expert admitted that he actually relied on a different survey that found a much, much, much higher percentage.

[00:25:22] Speaker 00:
And so Mr. Owok's survey experts said that it had no creatine and Mr. Owok, it had no impact.

[00:25:30] Speaker 00:
And Mr. Owok himself said it had no impact.

[00:25:33] Speaker 00:
But it just didn't matter for purposes of the jury's findings.

[00:25:41] Speaker 01:
It sounds like your client, according to the defense theory, used that survey, the Info Scout, to develop its own competing drink, what, rain?

[00:25:51] Speaker 00:
Yet that's not actually true and they cite nothing in the record for that in fact that the only thing in the record is when they were asked about this survey they didn't recall it and that's again at one supplemental record page 10.

[00:26:10] Speaker 00:
So when they were asked about this survey, that of course was Mr. Owock's theory.

[00:26:15] Speaker 00:
And his theory was that Monster created rain and created rain to copy bang and didn't put super creatine in it because people didn't care about it.

[00:26:27] Speaker 00:
But that's not what the jury believed.

[00:26:30] Speaker 00:
They were allowed to ask lots of questions from our witnesses about why there wasn't super creatine in rain.

[00:26:39] Speaker 00:
And the testimony was that Monster, in fact, wanted to put creatine in rain, but it just wasn't shelf-stable.

[00:26:46] Speaker 00:
And of course, this was the problem Mr. Ola claimed to have fixed.

[00:26:51] Speaker 00:
All of his social media posts said they've made the first water-stable creatine and been able to put it in a drink.

[00:26:57] Speaker 00:
So Monster's witnesses testified the reason rain didn't have creatine is because creatine's not water-stable and you couldn't put it in a drink.

[00:27:05] Speaker 00:
So the theory that they wanted to put in

[00:27:08] Speaker 00:
and sell the jury that no, no, that Monster realized it wasn't important, was just debunked by Monster's witnesses.

[00:27:15] Speaker 00:
In fact, Monster's CEO testified that 7-Eleven came to Monster and said, we'd love you to make a drink with the Trillium team.

[00:27:25] Speaker 00:
Can we get on that?

[00:27:26] Speaker 00:
And Monster said, this is a great opportunity for us.

[00:27:28] Speaker 00:
We're trying to see if it can work.

[00:27:30] Speaker 00:
We tried it before.

[00:27:31] Speaker 00:
But no, it's just not water stable.

[00:27:33] Speaker 00:
And so we can't do that.

[00:27:35] Speaker 00:
And they wouldn't do it.

[00:27:36] Speaker 00:
And that's why they didn't have creatine in rain.

[00:27:39] Speaker 00:
And at the end of the day, that's the reason why Monster knew that Mr. Awok wasn't telling the truth about super creatine, is that they knew that this was impossible, and that Mr. Awok's claim to have done something revolutionary in the market was just a scam and wasn't true.

[00:27:58] Speaker 00:
And that's the evidence the jury heard, and that's the evidence the jury believed, and that's how you ended up with the result that we got in this case.

[00:28:05] Speaker 02:
OK.

[00:28:06] Speaker 02:
Your time is up.

[00:28:06] Speaker 02:
Other questions by counsel?

[00:28:08] Speaker 02:
Very well, thank you.

[00:28:09] Speaker 02:
Thank you very much.

[00:28:11] Speaker 02:
Okay, we have some rebuttal time council.

[00:28:18] Speaker 03:
May it please the court.

[00:28:19] Speaker 03:
I already talked fast to begin with, so I'll do my best to be comprehensible.

[00:28:24] Speaker 03:
Assuming without conceding that the standard is abuse of discretion, that standard is obviously not unfettered discretion.

[00:28:31] Speaker 03:
At some point in time, a decision has to be so contrary to guiding rules or principles,

[00:28:35] Speaker 03:
that we say it was in fact abused and did in fact cause harm.

[00:28:39] Speaker 02:
But again, you're obviously a very smart, capable lawyer.

[00:28:44] Speaker 02:
You all disagree on the facts, but the reality is that there was a huge amount of evidence that came in on the other side.

[00:28:55] Speaker 02:
You're talking about a relatively small piece of a third party produced survey.

[00:29:03] Speaker 02:
Do you want the court to believe that under an abusive discretion standard that we would reverse a 20-day trial because the materiality of this is so great that it cries out for relief?

[00:29:20] Speaker 03:
The answer is yes, but for a reason different than what you just said.

[00:29:24] Speaker ?:
Okay, all right.

[00:29:25] Speaker 03:
My friend on the other side pointed out extensive parts in the record where Mr. Olock made claims about his own product.

[00:29:35] Speaker 03:
Obviously they disagree.

[00:29:37] Speaker 03:
But the question for the jury wasn't whether Jack Olock believes his product is effective.

[00:29:43] Speaker 03:
The question is whether Monster does.

[00:29:46] Speaker 03:
And if there are documents that show that Monster believed that nobody cared about super creatine, it was essentially a meaningless label and that everybody was buying it because it had no calories and no sugar and no carbohydrates, then documents that show Monster didn't care about this is just as important as all of the other information that Monster wants to sell to us.

[00:30:09] Speaker 02:
So where I'm going with is this is a... Even though, forgive me, even though evidence of that

[00:30:16] Speaker 02:
third-party 3% issue did come before the jury through experts, through other testimony.

[00:30:23] Speaker 02:
You're saying, if I understand you correctly, that it's the fact that the chart itself was not there is what turns this case over.

[00:30:30] Speaker 03:
Not the chart itself, Your Honor.

[00:30:32] Speaker 03:
I'll go back to the example of when the Vice President for the Americas was testifying.

[00:30:37] Speaker 03:
They were replying to use her words against her.

[00:30:40] Speaker 03:
If we had an opportunity, this is the record.

[00:30:44] Speaker 03:
She's asked questions in cross-examination.

[00:30:47] Speaker 03:
We seek to introduce an exhibit that shows that she's not telling the truth.

[00:30:51] Speaker 03:
The judge has to make a decision on admissibility.

[00:30:53] Speaker 03:
I see my time's up.

[00:30:54] Speaker 03:
May I finish my answer?

[00:30:55] Speaker 03:
Just answer the question.

[00:30:56] Speaker 03:
The judge has to make a decision on admissibility.

[00:30:59] Speaker 03:
What guiding rule or principle was in front of him at that time that said under no circumstances can this study commit?

[00:31:06] Speaker 03:
And we respectfully submit that there was not one.

[00:31:10] Speaker 03:
Alternatively, that Southland Saad already said that a third party survey that's commissioned in advance of litigation should be admitted without the party having, the proffering party having to prove up the science behind it.

[00:31:23] Speaker 03:
Other questions by my colleagues?

[00:31:25] Speaker 02:
Thanks to both counsel.

[00:31:26] Speaker 02:
We appreciate it very much.

[00:31:28] Speaker 02:
Case just argued is submitted.