| PepsiCo
Accused of Stealing Rise Name Now
Discovery Disputes So Joint Letter by
March 25
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
March 17 – Grant Gyesky and
two others founded Rise
Brewing in New York in 2014,
first sold its caffeinated
organic beverage in Brooklyn
and are now suing PepsiCo for
its Mountain Dew "Rise"
product.
On October
8, 2021 U.S. District Court
for the Southern District of
New York Judge Lorna G.
Schofield held a proceeding.
Inner City Press covered
it.
Gyesky
testified that after he met
with PepsiCo, the name was
stolen and the Mountain Dew
copycat was launched.
On cross
examination, he could not name
the address or attendees,
other than one, at the
meeting. And Pepsi's lawyer
focused on other Rise-named
products, and a different
position in North Carolina
litigation.
Midwest
sales agents of Rise took the
stand, describing being
muscled or misled out of
Kroger supermarkets in
Illinois and Kentucky. It
smacks of a David and Goliath
story.
In
November, after Inner City
Press reported the above on
October 9, others reported the
stay: "AMENDED OPINION AND
ORDER: Having considered the
parties' written submissions
and the evidence and argument
presented at the September 9,
2021, oral argument and
October 8, 2021, evidentiary
hearing, for the foregoing
reasons, the Court GRANTS
Plaintiff's motion for a
preliminary injunction.
Pepsi, in
Goliath form, appealed - and
got a stay of the stay, at
least until a three judge
panel can hear it: "The Court
grants an administrative stay
of the preliminary injunction
until it can be considered by
the next available three-judge
motions panel. In granting
this administrative stay, the
Court intimates no view on the
merits of the stay motion or
the preliminary injunction
order.. Catherine O'Hagan
Wolfe, Clerk USCA for the
Second Circuit."
In December,
Pepsico informed Judge
Schofield they have renamed
the product MTN DEW ENERGY,
informing retailers of this on
November 8. They
acknowledge that some MTN DEW
RISE ENERGY products are still
on sale; they say these are
the property of the retailers.
The
parties on December 16 told
Judge Schofield they have
agreed to limit the total
number of interrogatories to
25.
On March 17,
Magistrate Judge Sarah L. Cave
held a discovery conference
and Inner City Press covered
it. Judge Cave gave some
extensions but said she would
not be amenable to more. She
ordered: For all
depositions, the parties shall
meet and confer to agree on
start and end times that
reasonably accommodate the
witnesses' personal and work
schedules; 3. By March 25,
2022, the parties shall file a
joint letter (i) confirming
that all remaining fact
witness depositions have been
scheduled; and (ii) advising
whether there are any disputes
regarding the topics for
either party's Fed. R. Civ. P.
30(b)(6) witness(es) as to
which the parties seek the
Court's ruling, and, if so,
attaching the topics to the
joint letter; 4. The
depositions of non-parties
Steven Salzinger and Hudson
Gaines-Ross shall count toward
Defendant's limit of fourteen
depositions, and Plaintiff has
foregone the right to question
those witnesses at their
depositions; 5. The deadline
to complete document
discovery, apart from specific
post-deposition requests for
production, if necessary,
remains April 29, 2022; 6. All
fact witness depositions shall
be completed by May 13, 2022;
7. All expert discovery shall
be completed by June 27, 2022.
The case is
Riseandshine Corporation v.
Pepsico, Inc., 21-cv-6324
(Schofield / Cave)
***
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