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SDNY COURTHOUSE, May 31 – 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 May 6, 2022 Magistrate Judge Sarah L. Cave held another lengthy discovery conference and Inner City Press covered it. Judge Cave ruled, "ORDER: Having reviewed the parties' submissions, and having heard the parties' arguments during the lengthy discovery conference held today, May 6, 2022, the Court orders as follows: Pepsi's request for an order compelling RiseandShine "to produce documents responsive to these RFPs, or if it is unable to locate responsive documents, to file written responses stating that no documents exist and outlining steps taken to attempt to locate them" is DENIED WITHOUT PREJUDICE. RiseandShine shall promptly identify ten withheld third-party communications concerning the use of "Rise" as to which it believes Fed. R. Evid. 408 may apply (the "Rule 408 Exemplars"). As discussed at the conference, the Rule 408 Exemplars shall include communications with "Rise Up," if any exist. The Court will conduct an in camera review of the Rule 408 Exemplars to determine relevance and the applicability of Rule 408. RiseandShine's request for an order compelling Pepsi to produce documents and information responsive to its requests regarding Starbucks Nitro is DENIED WITHOUT PREJUDICE, pending the resolution of Pepsi's objections to this Court's Order dated April 14, 2022 (ECF No. 221) and Starbucks' motion to intervene."

On May 31, on the eve of Second Circuit arguments, there was a discovery proceeding before Magistrate Judge Cave that Inner City Press covered and after which, this: "ORDER: Having reviewed the parties' additional submissions (ECF Nos. 282, 285), and having heard further arguments from the parties during a nearly two-hour discovery conference held today, May 31, 2022, the Court orders as follows: Pepsis request for an order compelling RiseandShine to produce third-party communications on the use of "Rise" that RiseandShine withheld as irrelevant under Fed. R. Evid. 408 (ECF No. 223 at 2) is GRANTED IN PART to the extent that RiseandShine shall promptly produce the July 11, 2019 and October 16, 2019 letters sent by counsel for RiseandShine to counsel for Rise Biscuits Donuts LLC, and otherwise DENIED. Pepsi's request for an order compelling RiseandShine to produce third-party communications that RiseandShine withheld as privileged (ECF No. 223 at 23) is GRANTED IN PART to the extent that RiseandShine shall promptly produce the document identified on RiseandShine's privilege log as Entry No. 996 (see ECF No. 282-1 at 3), and is otherwise DENIED. Pepsi's request for an order compelling RiseandShine to correct deficiencies with its production of text messages (ECF No. 223 at 3) is GRANTED IN PART to the extent that, for the text-message conversations identified in RiseandShine's log (ECF No. 282-2) as beginning with Bates Nos. RISE0028413, RISE0028448, and RISE0028449, RiseandShine shall promptly provide Pepsi with the date and time of each text message appearing in these conversations, and is otherwise DENIED. RiseandShine's request for an order compelling Pepsi to produce "its documents regarding the unaired Super Bowl ad" (ECF No. 229 at 34) is GRANTED IN PART to the extent that Pepsi shall promptly produce any documents reflecting the reason for Pepsi's decision not to run the Super Bowl advertisement, and is otherwise DENIED. RiseandShine's request for an order compelling Pepsi "to supplement its production of financial documents in response to Rise Brewings First Requests for Production, Nos. 19, 21, and 33" (ECF No. 229 at 12) is GRANTED IN PART to the extent that, for MTN DEW RISE ENERGY, Pepsi shall promptly conduct a reasonable search for and produce (i) any quarterly brand-level profit-and-loss statements ("P&Ls") and (ii) to the extent they exist, any monthly or annual brand-level P&Ls, and is otherwise DENIED. RiseandShine's request for an order compelling Pepsi to produce brand-level P&Ls for MTN DEW ENERGY is DENIED WITHOUT PREJUDICE. RiseandShine's request for an order compelling Pepsi "to provide documents responsive to Rise Brewing's Second Requests for Production, Nos. 55, 56, 57, 59, and 60,... and provide a substantive response to [RiseandShine]'s Interrogatory No. 20," (ECF No. 229 at 23) is GRANTED IN PART to the extent that (i) Pepsi shall promptly produce any documents relating to the pricing of Starbucks Nitro in relation to RiseandShine's products, (see e.g., ECF No. 183-10), and (ii) before the June 8, 2022 deposition of Ryan Collis, 1 Pepsi shall produce any documents responsive to Request No. 2, as set forth in the Court's April 14, 2022 Order (see ECF No. 221 1.b.i). The parties are directed to order a transcript of todays conference. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 5/31/2022)." Watch this site.

The case is Riseandshine Corporation v. Pepsico, Inc., 21-cv-6324 (Schofield / Cave) 

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