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*** FILED: PALM BEACH COUNTY, FL SHARON R BOCK, CLERK.***
Electronically Filed 12/12/2013 01:42:42 PM ET
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN
AND FOR PALM BEACH COUNTY, FLORIDA
BIO-ENGINEERED SUPPLEMENTS &
NUTRITION, INC. f/k/a WINCHESTER
INC., CIVIL DIVISION: AB
Plaintiff, CASE NO: 502013CA013954XXXXMB
v.
MUSCLE ELEMENTS INC. d/b/a
MUSCLE ELEMENTS, CASEY CRANE,
JAMES TRACY, ERIC TOMKO, KEVIN
RAMOS and MARCUS SMALLS
Defendants.
/
DEFENDANTS/COUNTERCLAIM PLAINTIFFS’ OPPOSITION
TO PLAINTIFF’S MOTION FOR CONTEMPT, AND TO REVOKE
COUNSEL’S PRO HAC VICE ADMISSION
Defendants/Counterclaim Plaintiffs Muscle Elements Inc. (“MEI”), and Casey Crane
(“Crane”), James Tracy (“Tracy”), Eric Tomko (“Tomko”), Kevin Ramos (“Ramos”), and
Marcus Smalls (“Smalls”) (together, “defendants”) respectfully submit this Opposition to the
Motion for Contempt and to Revoke Counsel’s Pro Hac Vice Admission (the “Motion” or
“Mot.”) of Plaintiff Bio-Engineered Supplements & Nutrition, Inc., f/k/a Winchester Inc.
(“BSN” or “plaintiff’).
INTRODUCTION
BSN’s motion for a finding of contempt and sanctions against the defendants and
revocation of their lead counsel’s pro hac vice status should be denied for a simple reason: (a)
there was no violation of a plain reading of the September 25, 2013 Preliminary Injunction Order
(the “Injunction”) and certainly no intentional violation; and (b) the core issue raised by BSN’s
contempt motion — the correct reading of the Injunction as it applies to defendant Casey Crane(whose BSN noncompete agreement expired in 2012) and MEI (after complete ownership was
transferred to Crane) — was previously raised by Crane and MEI in their motion to modify,
which was filed at the end of October (which motion is still pending). Far from being a case
where the enjoined parties intentionally disobeyed a court order, this is a case where the enjoined
parties notified their adversaries as to what they were doing, identified an area of dispute and
then filed a motion to modify the Injunction in order to allow the parties to adjudicate the issue in
an orderly fashion — and specifically to ensure that the defendants are in full compliance.
RELEVANT FACTS
Even taking BSN’s fact allegations as true for purposes of this motion, the conduct that
BSN cites as intentional violations of the Injunction does not arise to sanctionable conduct.
Rather the conduct is consistent with the parties arranging their business affairs to stay within the
bounds of the Injunction, which (for purposes of a contempt motion) must be narrowly
construed. The Injunction, by its express terms, does not bar Crane and MEI from all
competition with BSN (as it does with respect to the other individual defendants whose
noncompete agreements have yet to expire). Instead — as BSN acknowledges — it bars Crane and
MEI from “tortiously interfering” with the other defendants’ BSN noncompete agreements “by,
inter alia, facilitating the violation of said Agreements through . . . engaging in business in
competition with BSN [etc.] . . ..” (See Mot. at 3) (emphasis added). That is, Crane and MEI (to
the extent it is no longer owned or controlled by defendants Tomko and Tracy) are expressly
barred by the Injunction from tortiously interfering with the other defendants’ noncompetition
agreements, but is otherwise free to compete (with the exception of launching an MEI website).
BSN disagrees with this reading of the Injunction. For that reason, Crane and MEI
(through counsel) notified BSN that they would not launch the MEI business and would not sellor market MEI products until the disagreement was adjudicated in the context of Crane’s and
MEI’s motion to modify the Injunction. They have abided by that representation. MEI and
Crane have not sold or marketed the MEI products. The activity Crane has engaged in was
limited to finishing manufacturing processes that were set in motion prior to the Injunction, and
maintaining inventory and MEI’s facilities and offices (paying rent and other bills, etc.). That is
why there are some MEI purchase orders dated after the Injunction: they were done by Crane
and the reconfigured MEI to finish obtaining product that had already been put into the
production pipeline before the Injunction and was done to husband and preserve MEI assets until
they can be sold, after either a favorable ruling on the motion to modify or after the Injunction
expires as to the other defendants.
Crane and MEI have not sold any products or tried to fill any orders. In fact, even the
screen grabs of the MEI products on the websites of third-party outlets show that the products are
“unavailable.” (See Attachments | and 2, described below.) While Crane did email GNC in
November about the coming availability of the MEI products, that, at worst, was a premature and
erroneous false start in anticipation of a favorable ruling on the defendants’ motion to modify.
(GNC did not order any product.)
Tomko’s conduct is also not conduct that constitutes a sanctionable violation of the
Injunction. With respect to Tomko, he sent an email after the Injunction to various business and
personal contacts, many of whom work in the sports nutrition business (which is where Tomko
has worked his entire professional life). The content of that email referred to MEI but only in the
context of describing the litigation between MEI and BSN; the email describes the current status
of the lawsuit, and expressly notifies the recipients of the fact that Tomko is barred by a court
order; and finally it also sets forth the defendants’ legal position and view of the merits of BSN’sclaims. Part of the defendants’ legal position is that Crane and ME] are not barred by the
Injunction from operating in the sports nutrition business and that they are “preparing to launch.”
Consistent with the defendants’ express representation to BSN, MEI and Crane did not launch
and had no intent to launch until there is a ruling on their motion to modify, and nothing in this
email is to the contrary. Simply stating the parties’ litigation position is not a violation of the
Injunction.
The other complaints by BSN involve issues that were not ruled upon by the Court in
issuing the Injunction and in fact are ultimate issues of fact that cannot be determined until after
full discovery and trial. For example, BSN claims that the four MEI products that exist
unlawfully use BSN Confidential Information. But there was no evidence of that at the
September hearing leading to the Injunction; there was no evidence about the content of the MEI
products at all. And there certainly is no such finding or ruling by the Court in the Injunction.
Nor is there any basis to revoke the pro hac vice status of the defendants’ lead counsel,
Michael Bowen. Bowen’s letter to BSN’s counsel and the Tomko email cited by BSN show that
Bowen in no way intended the defendants to breach the Injunction or “encouraged” any such
breach. Rather, these documents constitute evidence that the defendants were navigating within
the bounds of the Injunction and, in fact, did not breach it.
ARGUMENT
L STANDARD FOR CONTEMPT
Civil contempt for violation of a preliminary injunction may only result where alleged
misconduct “clearly contravenes the injunction.” Osmo Tec SACV Co. v. Crane Envtl., Inc., 884
So. 2d 324, 326 (Fla. 2d DCA 2004) (citing Power Line Components, Inc. v. Mil-Spec
Components, Inc., 720 So. 2d 546, 548 (Fla. 4th DCA 1998)). It is not sufficient that the actions
“may have violated the spirit or intent of the trial court’s orders,” but rather the conduct must
4violate “the letter of an order.” Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012)
(internal quotations omitted). The mere showing that a party has the “intent to disobey a court
order” is insufficient to support a finding of contempt. Power Line, 720 So. 2d at 548.
As civil contempt is remedial in nature and serves coercive or compensatory purposes,
Parisi v. Broward Cnty., 769 So. 2d 359, 363-64 (Fla. 2000) (internal quotations omitted),
contempt orders “must include a purge provision” which “allows the fine to be avoided or
reduced if the violator complies with the injunction.” Politz v. Booth, 910 So. 2d 397, 398 (Fla.
4th DCA 2005). Beyond this, any fines or sanctions “must have some bearing upon the harm
suffered by the injured party,” Boby Express Co. v. Guerin, 930 So. 2d 842, 844 (Fla. 3d DCA
2006), and any compensation resulting therefrom “must be based upon evidence of an injured
party’s actual loss.” See also Levey v. D'Angelo, 819 So. 2d 864, 868 (Fla. 4th DCA 2002).!
I. PLAINTIFF HAS FAILED TO STATE A BASIS FOR FINDING
DEFENDANTS IN CONTEMPT OF THE COURT’S INJUNCTION
Plaintiff has failed to make a prima facie showing of contempt. BSN is not able to show
that any given act of a given defendant violated the plain language of the Injunction. To the
extent the parties have a dispute over the effect of the Injunction as to Crane and the re-organized
MEL, that is a reasonable difference in interpretation of the Injunction; that difference in view —
one that the defendants brought to BSN’s attention and that the defendants have sought to frame
for adjudication in their motion to modify — is an insufficient basis, as a matter of law, for
contempt.
' Plaintiff cites to some cases involving criminal contempt, which, if sought, requires full due process, including
right to counsel and “proof beyond a reasonable doubt that the individual intended to disobey the court.” Tide v.
State, 804 So, 2d 412, 413 (Fla. 4th DCA 2001) (citing Levine v. State, 650 So. 2d 666, 668 (Fla. 4th DCA 1995)).
That doctrine has no applicability here, and BSN makes no argument otherwise.
5A. Plaintiff Does Not and Cannot Demonstrate
that Any Defendant Violated the Injunction
On September 25, 2013, the Court issued the preliminary injunction in this matter. (Mot.,
Exh. A.) The Injunction enjoined four of the defendants (Tomko, Tracy, Smalls, and Ramos)
from breaching their BSN contracts, which contained noncompete and nonsolicit clauses that the
Court held, preliminarily, to be enforceable. At the hearing, BSN conceded that Crane’s
noncompete period had expired in 2012 (long before MEI and long before the Injunction
hearing); and the Injunction, accordingly, did not bar Crane from competing based on a
contractual noncompete clause. Instead, the Injunction separated out Crane and MEI (which also
has no noncompete contract with BSN) and expressly enjoined these two defendants from
“tortiously interfering” with the other defendants’ noncompete agreements with BSN:
ORDERED that Muscle Elements and Crane are enjoined from tortiously
interfering with the Agreements between BSN and the other BSN Employees by,
inter alia, facilitating the violation of said Agreements through [i] the use and/or
disclosure of BSN’s Confidential Information, [ii] solicitation of BSN’s customers,
[iii] engaging in business in competition with BSN and [iv] solicitation of and
engaging in business with BSN’s customers.
(Mot., Exh. A, at 16 [emphasis and brackets added] [cited at Mot. at 3].)
The Injunction further had a separate express provision the plain language of which
explicitly prohibited MEI from launching its website: “ORDERED that Muscle Elements is
enjoined from launching its website for the remaining temporal terms of the Agreements.” (/d.
at 17.)
Rule 1.610 of the Florida Rules of Civil Procedure requires that every injunction
“describe in reasonable detail the act or acts restrained.” Fla. R. Civ. P. 1.610(c). See Hasley v.
Harrell, 971 So. 2d 149, 152 (Fla. 2d DCA 2007) (scope of injunction must be limited “to grant
only the relief reasonably necessary to protect the established legitimate business interest”).
Where an injunction “is ambiguous and could reasonably be interpreted in two ways,” the court
6may not hold a party “in contempt” for conduct that is within the bounds of a reasonable (even if
mistaken) reading of the order. Power Line, 720 So. 2d at 548. Thus, to hold a party in
contempt, the language of the injunction must be “clear and precise,” and the alleged misconduct
must “clearly violate the order.” Paul v. Johnson, 604 So. 2d 883, 884 (Fla. 5th DCA 1992)
(footnote omitted); see also Osmo Tec, 884 So. 2d at 326 (same). Put simply, “‘[a] judge cannot
base contempt upon noncompliance with something an order does not say.”” DeMello v.
Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) (quoting Keitel v. Keitel, 716 So. 2d 842,
845 (Fla. 4th DCA 1998)). And, “the Court must narrowly construe its injunction to reach only
conduct that clearly violates it.” BASF Agro B.V. v. Cipla Ltd., 2012 WL 2023310 (M_D. Ga.
June 5, 2012) (finding no violation of preliminary injunction where party subject to preliminary
injunction purportedly used foundational knowledge from prior employer to formulate product
for new company). See also 11A Wright & Miller, Fed. Practice & Procedure § 2955 (“all
omissions or ambiguities [in an injunction] ... will be resolved in favor of [the enjoined
party].”).
BSN makes two arguments of contempt, one against Crane and the other against Tomko.
Neither makes out a prima facie showing of a violation of the Injunction.
1. Crane’s Conduct
BSN argues that Crane and MEI violated the Injunction because Crane continued to
develop MEI products after the Injunction and because Crane sent an email on November 25,
2013 to GNC notifying GNC that MEI had products “ready to go.”
The fact that MEI finished assembling the products it had in the pipeline before the
Injunction is no violation of the Injunction. That did not involve selling the products (i.e.,
competing with BSN); nor did that completion of the packaging and receiving the productsviolate the provisions barring the defendants from soliciting business from BSN customers (i.e.,
distributors). In fact, BSN misinterprets Tomko’s testimony in this regard. Even just based on
the portions of Tomko’s testimony cited by BSN, Tomko clearly testified at the September
hearing that at the time of the hearing — before the Injunction — MEI had “four products ordered.”
(See Mot., Exh. E at 252:20-25). During his deposition, he stated that some of the products had
been delivered after the Injunction. But the fact that some of the product was delivered later is
not inconsistent with the fact that the products had been previously ordered. (Mot., Exh. D at
23:25 to 26:21).
BSN also alleges that two third-party websites — not controlled by MEI — are currently
selling MEI products (Mot. at 8). But that is not true, and BSN’s own evidence shows it is not
true. Those websites explicitly indicate that MEI products are not available; and one of the sites
specifically notes that the product may never be available. See Attachment 1 [Webpage “screen
shot” indicating that MEI products are “Currently Not Available. We don’t know when or if this
item will be back in stock.”]; Attachment 2 [Webpage screen grab with legends stating, “We
have stock,” affixed to non-MEI products, but no such legend for the depicted MEI product].)*
There is no evidence that ME] is responsible for these posts on these websites — and it is not.
MET has asked and will continue to ask these (and any other) third parties to remove these pages
until MEI is legally permitted to launch.
The November 25 email to GNC, as noted above, was Crane’s attempt to anticipate a
favorable ruling on the motion to modify, which (at the time) the defendants hoped to have
scheduled for hearing in early December. (The hearing was not scheduled in December,
however, as the defendants’ effort to get the relevant discovery out to BSN was taking longer
True and correct copies of the printouts of the referenced pages from www.phdonline.com.au and
www.healthsuperstore.com are attached hereto as Attachments | and 2.
8than anticipated.) In any event, given that Crane is not under a contractual noncompete and the
Injunction bars him only from tortiously interfering with the other defendants’ noncompetes, this
conduct does not violate the Injunction — or at the very least does not violate one reasonable
interpretation of the Injunction.
BSN argues, however, that this email was sent on behalf of MEI and that, because the
transfer of ownership of MEI (in BSN’s view) is a sham, MEI was still enjoined from making
any sales contact with BSN customers. But that is the very issue that the defendants are trying to
frame for adjudication on their motion to modify, after the relevant discovery. BSN’s mere say-
so does not mean that this conduct amounts to a sanctionable breach. That is why the defendants
had represented to BSN’s counsel that there would be no launch of MEI products until the
motion to modify was heard and decided. To the extent that this Crane email is inconsistent with
that representation, it was a “false start,” and will not happen again; but it still is not an
intentional violation of the Injunction.’
2. Tomko’s Conduct
BSN alleges that an email that Tomko sent to some of his contacts (both personal and
business) in the industry violated the Injunction. But the content of that email related only to the
BSN/MEI litigation. In addition to stating that MEI and the other defendants are defending
themselves in the lawsuit, pursuing appeals and other relief and expect ultimately to be
vindicated after trial — standard fare for a party’s statement about pending litigation — the content
of the email also notes that Tomko himself (and the other three defendants) are subject to a
> Nor is Tiffany Trout’s continued employment with MEI a violation of the Injunction. First, she had been hired
by MEI before the Injunction, not afterward and in violation of it. Second, MEI (now owned solely by Crane) is
under no legal obligation by contract or otherwise not to employ her; nor is there any clear directive in the
Injunction that her employment be terminated. See Cox v. Florida Mobile Leasing, Inc., 478 So. 2d 1200, 1201 (Fla.
4th DCA 1985) (“[t]he purpose of a preliminary injunction is to preserve the status quo until a final hearing when
final relief may be granted”). BSN alleges (Mot. at p.9 n.9) that Trout herself is bound by a BSN noncompete. But
that is inaccurate: her BSN agreement only bars her from soliciting BSN employees and BSN customers, neither of
which she is doing at MEI. (See Mot., Exh. H.)court-ordered injunction and that he is barred from “working with MEI or otherwise competing
with BSN.”
What BSN complains about, however, is an additional sentence in which the email states
that Crane and MEI are not barred by the court order from “operating” in the sports nutrition
market. But this does not violate any plain term of the Injunction. (Mot. at 5). As noted above,
this is a statement of the defendants’ legal position, what they intend to prove on their motion to
modify. The last part states that Crane is “preparing” to launch MEI. Again, nothing in the
Injunction prohibits Crane from planning MEI business. And this is not inconsistent with what
the defendants’ counsel represented to BSN’s counsel in discussing the pending motion to
modify.
BSN’s motion ignores the numerous steps the defendants took to “stand down” and to
suspend launching MEI or otherwise competing against BSN. After the Injunction, defendants
aborted their plans for an industry conference at the end of September, pulled the plug on MEI’s
website, shut down other social media about MEI, and pulled planned advertising of MEI and its
products. Tomko, Tracy, Ramos and Smalls — the four individual defendants subject to non-
competition and non-solicitation restrictions — resigned, and stopped work related to MEI (other
than defending this litigation). Tomko and Tracy transferred their share of MEI ownership to
Crane. And, most importantly, no MEI products have been sold.
Thus, none of the complaints raised by BSN about Tomko’s and Crane’s conduct — even
taken as true for purposes of this motion — can be a sufficient ground for a finding of contempt.
See Power Line, 720 So. 2d at 548. The isolated conduct they identify does not “clearly violate”
any “clear and precise” language of the injunction. Paul, 604 So. 2d at 884. “Unlike inhorseshoe pitching, coming close to the target in a court of law is not ‘close enough’ to score a
finding of contempt.” Reder, 102 So. 3d at 742. Rather, plaintiff must show that defendants
violated the letter of a preliminary injunction that “could [not] reasonably be interpreted in two
ways,” Power Line, 720 So. 2d at 548, and that the “clear and precise” language of the injunction
has been violated. Paul, 604 So. 2d at 884.
BSN has done neither and its motion should be denied.
B. No Sanction or Award of Attorney’s Fees Is Warranted
Civil contempt is compensatory and not punitive and any sanctions “must be based upon
evidence of an injured party’s actual loss.” Levy, 819 So. 2d at 868. Here, plaintiff has failed to
demonstrate any damages resulting from the purported violations of the Injunction. Specifically,
plaintiff does not allege any lost income, customers, clients, or other bases for economic
damages.
Instead, BSN seeks its attorney’s fees in bringing this motion for contempt. But this
entire motion was not necessary because the core issue raised here — whether Crane and the
reorganized MEI can launch their business — was previously raised by the defendants in the
motion to modify, which the defendants were trying to provide discovery on and to schedule for
a hearing to adjudicate this very issue in an orderly fashion.
BSN’s motion for contempt is really just an improper attempt to de-rail the motion to
modify, and put the defendants to the added — and needless — cost of this “emergency” motion.
In fact, this sharp-practice by BSN should not be tolerated; it certainly should not be rewarded.
Moreover, any order awarding sanctions for civil contempt “must include a purge
provision” which “allows the fine to be avoided or reduced if the violator complies with the
injunction.” Politz, 910 So. 2d at 398. Where the conduct at issue is not ongoing and thus
cannot be purged, a sanction may be “suspended pending future compliance with the court’s
11prior orders,” which satisfies the “purge” requirement. Lewis v. Nical of Palm Beach, Inc., 959
So. 2d 745, 752 (Fla. 4th DCA 2007) (citations and internal quotations omitted). As noted
above, Crane and MEI had “stood down” and have no intention to launch pending the resolution
of the motion to modify and all of the defendants have taken significant steps to be in
compliance with the Injunction. If any conduct is deemed to be violative of the Injunction, the
defendants will comply and cease and desist. Nothing in the showing BSN has made on this
motion suggests otherwise.
Ill. | PLAINTIFF HAS NO BASIS TO SEEK
REVOCATION OF PRO HAC STATUS
BSN bases its request that the Court revoke the pro hac status of Bowen on the ground
that Bowen “is encouraging the launch of the Muscle Elements business.” (Mot. at 14). Bowen
did nothing of the sort — he certainly did not encourage the “launch” of the business in violation
of the Injunction (which is what BSN means to say). In fact, even the “facts” cited by BSN show
that Bowen was (and is) taking steps in this litigation so that the defendants not only do not
violate the Injunction but also are not misperceived as doing so.
For this portion of its motion, BSN cites a letter Bowen wrote to BSN’s counsel. That
letter, however, notified BSN counsel (i) that the ownership of MEI had been transferred to
Crane and (ii) that the defendants took the legal position that the Injunction did not bar Crane
and the reconfigured MEI from marketing the MEI products so long as the other defendants were
no longer involved. After BSN’s counsel objected to that interpretation of the Injunction, Bowen
notified BSN (in a phone conference) that there would be no “launch” until this dispute was
resolved through MEI’s motion to modify. By no stretch is that an attempt to make an end-run
around the Injunction.BSN next complains that Tomko’s email included text written by Bowen, which text
consists of a description of the BSN/MEI litigation — including the fact that Tomko and the
others were under a court-ordered injunction — and a statement of MEI’s legal position
concerning MEI and Crane. But again that email (also discussed above) does not state that
Crane and MEI are launching or have launched. It stated only that Crane was “preparing” to
launch MEI. While the legal position is stated forcefully, it does not state that the launch is
taking place no matter what, and nothing about this email suggests that it was intended to convey
that meaning or that Bowen had that intent.
Given the evidence of the undeniable fact that Bowen (and the defendants) raised this
issue on the MEI/Crane motion to modify and then engaged in negotiated expedited discovery
(including Tomko’s deposition) in order to develop a fact record about the bona fides of the MEI
ownership transfer, there can be no mistake that Bowen and the defendants were doing exactly
the opposite of BSN’s accusation: He had tried to make sure that BSN knew what the
defendants were doing and, to the extent that they had a dispute, he took steps to frame the issue,
produce the relevant fact information in discovery, and get the matter adjudicated in an orderly
fashion.
The relief BSN seeks is drastic and way out of proportion to any reasonable interpretation
of Bowen’s conduct: it has dire implications for MEI, Crane, Tomko, Tracy, Smalls and Ramos.
“Clients have the right to expect that they may choose counsel when legal services are required
and, with few exceptions, nothing that lawyers and law firms do shall have any effect on the
exercise of that right.” Melton v. State, 56 So. 3d 868, 873 (Fla. 1st DCA 2011) (quoting R. Fla.
Bar 4-5.8(b)). An order “deny[ing] a party its counsel of choice . . . constitutes a material injury”
to the party. THI Holdings, LLC v. Shattuck, 93 So. 3d 419, 422 (Fla. 2d DCA 2012). See alsoKelley v. Kelley, 123 So. 3d 692 (Fla. 4th DCA 2013) (citing Info. Sys. Assocs., Inc. v. Phuture
World, Inc., 106 So. 3d 982, 984 (Fla. 4th DCA 2013)) (noting irreparable harm to party
associated with deprivation of counsel of choice). A court’s discretion to revoke pro hac must
be weighed against this injury to the party, and revocation here would be improper given the
complete absence of misconduct and the serious injury to defendants that would result. See
Brooks v. AMP Servs. Ltd., 979 So. 2d 435, 439 (Fla. 4th DCA 2008).
“Disqualification of a party’s chosen counsel is an extraordinary
remedy and should only be resorted to sparingly.” Motions for
disqualification are generally viewed with skepticism because
disqualification of counsel impinges on a party’s right to employ a
lawyer of choice, and such motions are often interposed for tactical
purposes.
Minakan v. Husted, 27 So. 3d 695, 698 (Fla. 4th DCA 2010) (quoting Alexander v. Tandem
Staffing Solutions, Inc., 881 So. 2d 607, 608-09 (Fla. 4th DCA 2004)). Such “skepticism” is
appropriate here as Bowen has engaged in no improper conduct, and the present application has
clearly been “interposed for tactical purposes.” Id.
“When pro hac vice admission is revoked, it ordinarily is the result of a motion alleging
intentional and egregious misconduct.” Brooks, 979 So. 2d at 438. See also Clare v. Coleman
(Parent) Holdings, Inc., 928 So. 2d 1246, 1249 (Fla. 4th DCA 2006) (noting that allegation of
purported misconduct by client does not warrant rescinding pro hac admission). There has been
no showing of such conduct by Bowen even approaching this standard.
Accordingly, there simply is no basis to strip Bowen of his pro hac status.4
‘4 In the event that the Court does not dismiss BSN’s charge against the defendants’ lead counsel, then the
defendants and Bowen will seek a continuance to afford all parties an opportunity to consult and retain independent
conflict counsel to advise them as to the various potential conflicts, their legal and due process rights, and to address
privilege and other evidentiary issues.
14Conclusion
WHEREFORE, for the aforementioned reasons, defendants respectfully request that
plaintiff's Motion for Contempt and to Revoke Counsel’s Pro Hac Vice Admission be denied in
its entirety.
Dated: December 12, 2013
Respectfully submitted,
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
The Four Season Tower
1441 Brickell Avenue, Suite 1420
Miami, Florida 33131
Telephone: (305) 377-1666
Facsimile: (305) 377-1664
MBowen@kasowitz.com
RJacobson@kasowitz.com
By: /s/ Michael P. Bowen
Michael P. Bowen (admitted pro hac vice)
PHV Number: 104578
Rachel M. Jacobson
Florida Bar No. 0091732
Attorneys for Defendants/Counterclaim Plaintiffs
Muscle Elements, Inc., Casey Crane, James Tracy,
Eric Tomko, Kevin Ramos, and Marcus SmallsCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Defendants/Counterclaim
Plaintiff's Memorandum of Law in Opposition to Plaintiff's Motion for Contempt and to Revoke
Counsel’s Pro Hac Vice Admission was furnished by e-mail to all counsel listed in the attached
service list this 12" day of December 2013.
Eric D. Isicoff, Esq.
isicoff@irlaw.com
Teresa Ragatz, Esq.
ragatz@irlaw.com
Christopher M. Yannuzzi, Esq.
yannuzzi@irlaw.com
Isicoff, Ragatz & Koenigsberg
1200 Brickell Ave., Ste. 1900
Miami, FL 33131
Telephone: (305) 373-3232
Facsimile: (305) 373-3233
Counsel for Plaintiff
/s/ Michael P. Bowen
Attorney
SERVICE LIST
Bridget A. Berry, Esq.
berryb@gtlaw.com
Greenberg Traurig LLP
777 South Flagler Dr., Ste. 300 East
West Palm Beach, FL 33401
Telephone: (561) 650-7900
Facsimile: (561) 655-6222
Counsel for PlaintiffEXHIBIT 142413.
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*** FILED: PALM BEACH COUNTY, FL SHARON R BOCK, CLERK.*** Electronically Filed 12/12/2013 01:42:42 PM ET IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA BIO-ENGINEERED SUPPLEMENTS & NUTRITION, INC. f/k/a WINCHESTER INC., CIVIL DIVISION: AB Plaintiff, CASE NO: 502013CA013954XXXXMB v. MUSCLE ELEMENTS INC. d/b/a MUSCLE ELEMENTS, CASEY CRANE, JAMES TRACY, ERIC TOMKO, KEVIN RAMOS and MARCUS SMALLS Defendants. / DEFENDANTS/COUNTERCLAIM PLAINTIFFS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CONTEMPT, AND TO REVOKE COUNSEL’S PRO HAC VICE ADMISSION Defendants/Counterclaim Plaintiffs Muscle Elements Inc. (“MEI”), and Casey Crane (“Crane”), James Tracy (“Tracy”), Eric Tomko (“Tomko”), Kevin Ramos (“Ramos”), and Marcus Smalls (“Smalls”) (together, “defendants”) respectfully submit this Opposition to the Motion for Contempt and to Revoke Counsel’s Pro Hac Vice Admission (the “Motion” or “Mot.”) of Plaintiff Bio-Engineered Supplements & Nutrition, Inc., f/k/a Winchester Inc. (“BSN” or “plaintiff’). INTRODUCTION BSN’s motion for a finding of contempt and sanctions against the defendants and revocation of their lead counsel’s pro hac vice status should be denied for a simple reason: (a) there was no violation of a plain reading of the September 25, 2013 Preliminary Injunction Order (the “Injunction”) and certainly no intentional violation; and (b) the core issue raised by BSN’s contempt motion — the correct reading of the Injunction as it applies to defendant Casey Crane(whose BSN noncompete agreement expired in 2012) and MEI (after complete ownership was transferred to Crane) — was previously raised by Crane and MEI in their motion to modify, which was filed at the end of October (which motion is still pending). Far from being a case where the enjoined parties intentionally disobeyed a court order, this is a case where the enjoined parties notified their adversaries as to what they were doing, identified an area of dispute and then filed a motion to modify the Injunction in order to allow the parties to adjudicate the issue in an orderly fashion — and specifically to ensure that the defendants are in full compliance. RELEVANT FACTS Even taking BSN’s fact allegations as true for purposes of this motion, the conduct that BSN cites as intentional violations of the Injunction does not arise to sanctionable conduct. Rather the conduct is consistent with the parties arranging their business affairs to stay within the bounds of the Injunction, which (for purposes of a contempt motion) must be narrowly construed. The Injunction, by its express terms, does not bar Crane and MEI from all competition with BSN (as it does with respect to the other individual defendants whose noncompete agreements have yet to expire). Instead — as BSN acknowledges — it bars Crane and MEI from “tortiously interfering” with the other defendants’ BSN noncompete agreements “by, inter alia, facilitating the violation of said Agreements through . . . engaging in business in competition with BSN [etc.] . . ..” (See Mot. at 3) (emphasis added). That is, Crane and MEI (to the extent it is no longer owned or controlled by defendants Tomko and Tracy) are expressly barred by the Injunction from tortiously interfering with the other defendants’ noncompetition agreements, but is otherwise free to compete (with the exception of launching an MEI website). BSN disagrees with this reading of the Injunction. For that reason, Crane and MEI (through counsel) notified BSN that they would not launch the MEI business and would not sellor market MEI products until the disagreement was adjudicated in the context of Crane’s and MEI’s motion to modify the Injunction. They have abided by that representation. MEI and Crane have not sold or marketed the MEI products. The activity Crane has engaged in was limited to finishing manufacturing processes that were set in motion prior to the Injunction, and maintaining inventory and MEI’s facilities and offices (paying rent and other bills, etc.). That is why there are some MEI purchase orders dated after the Injunction: they were done by Crane and the reconfigured MEI to finish obtaining product that had already been put into the production pipeline before the Injunction and was done to husband and preserve MEI assets until they can be sold, after either a favorable ruling on the motion to modify or after the Injunction expires as to the other defendants. Crane and MEI have not sold any products or tried to fill any orders. In fact, even the screen grabs of the MEI products on the websites of third-party outlets show that the products are “unavailable.” (See Attachments | and 2, described below.) While Crane did email GNC in November about the coming availability of the MEI products, that, at worst, was a premature and erroneous false start in anticipation of a favorable ruling on the defendants’ motion to modify. (GNC did not order any product.) Tomko’s conduct is also not conduct that constitutes a sanctionable violation of the Injunction. With respect to Tomko, he sent an email after the Injunction to various business and personal contacts, many of whom work in the sports nutrition business (which is where Tomko has worked his entire professional life). The content of that email referred to MEI but only in the context of describing the litigation between MEI and BSN; the email describes the current status of the lawsuit, and expressly notifies the recipients of the fact that Tomko is barred by a court order; and finally it also sets forth the defendants’ legal position and view of the merits of BSN’sclaims. Part of the defendants’ legal position is that Crane and ME] are not barred by the Injunction from operating in the sports nutrition business and that they are “preparing to launch.” Consistent with the defendants’ express representation to BSN, MEI and Crane did not launch and had no intent to launch until there is a ruling on their motion to modify, and nothing in this email is to the contrary. Simply stating the parties’ litigation position is not a violation of the Injunction. The other complaints by BSN involve issues that were not ruled upon by the Court in issuing the Injunction and in fact are ultimate issues of fact that cannot be determined until after full discovery and trial. For example, BSN claims that the four MEI products that exist unlawfully use BSN Confidential Information. But there was no evidence of that at the September hearing leading to the Injunction; there was no evidence about the content of the MEI products at all. And there certainly is no such finding or ruling by the Court in the Injunction. Nor is there any basis to revoke the pro hac vice status of the defendants’ lead counsel, Michael Bowen. Bowen’s letter to BSN’s counsel and the Tomko email cited by BSN show that Bowen in no way intended the defendants to breach the Injunction or “encouraged” any such breach. Rather, these documents constitute evidence that the defendants were navigating within the bounds of the Injunction and, in fact, did not breach it. ARGUMENT L STANDARD FOR CONTEMPT Civil contempt for violation of a preliminary injunction may only result where alleged misconduct “clearly contravenes the injunction.” Osmo Tec SACV Co. v. Crane Envtl., Inc., 884 So. 2d 324, 326 (Fla. 2d DCA 2004) (citing Power Line Components, Inc. v. Mil-Spec Components, Inc., 720 So. 2d 546, 548 (Fla. 4th DCA 1998)). It is not sufficient that the actions “may have violated the spirit or intent of the trial court’s orders,” but rather the conduct must 4violate “the letter of an order.” Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012) (internal quotations omitted). The mere showing that a party has the “intent to disobey a court order” is insufficient to support a finding of contempt. Power Line, 720 So. 2d at 548. As civil contempt is remedial in nature and serves coercive or compensatory purposes, Parisi v. Broward Cnty., 769 So. 2d 359, 363-64 (Fla. 2000) (internal quotations omitted), contempt orders “must include a purge provision” which “allows the fine to be avoided or reduced if the violator complies with the injunction.” Politz v. Booth, 910 So. 2d 397, 398 (Fla. 4th DCA 2005). Beyond this, any fines or sanctions “must have some bearing upon the harm suffered by the injured party,” Boby Express Co. v. Guerin, 930 So. 2d 842, 844 (Fla. 3d DCA 2006), and any compensation resulting therefrom “must be based upon evidence of an injured party’s actual loss.” See also Levey v. D'Angelo, 819 So. 2d 864, 868 (Fla. 4th DCA 2002).! I. PLAINTIFF HAS FAILED TO STATE A BASIS FOR FINDING DEFENDANTS IN CONTEMPT OF THE COURT’S INJUNCTION Plaintiff has failed to make a prima facie showing of contempt. BSN is not able to show that any given act of a given defendant violated the plain language of the Injunction. To the extent the parties have a dispute over the effect of the Injunction as to Crane and the re-organized MEL, that is a reasonable difference in interpretation of the Injunction; that difference in view — one that the defendants brought to BSN’s attention and that the defendants have sought to frame for adjudication in their motion to modify — is an insufficient basis, as a matter of law, for contempt. ' Plaintiff cites to some cases involving criminal contempt, which, if sought, requires full due process, including right to counsel and “proof beyond a reasonable doubt that the individual intended to disobey the court.” Tide v. State, 804 So, 2d 412, 413 (Fla. 4th DCA 2001) (citing Levine v. State, 650 So. 2d 666, 668 (Fla. 4th DCA 1995)). That doctrine has no applicability here, and BSN makes no argument otherwise. 5A. Plaintiff Does Not and Cannot Demonstrate that Any Defendant Violated the Injunction On September 25, 2013, the Court issued the preliminary injunction in this matter. (Mot., Exh. A.) The Injunction enjoined four of the defendants (Tomko, Tracy, Smalls, and Ramos) from breaching their BSN contracts, which contained noncompete and nonsolicit clauses that the Court held, preliminarily, to be enforceable. At the hearing, BSN conceded that Crane’s noncompete period had expired in 2012 (long before MEI and long before the Injunction hearing); and the Injunction, accordingly, did not bar Crane from competing based on a contractual noncompete clause. Instead, the Injunction separated out Crane and MEI (which also has no noncompete contract with BSN) and expressly enjoined these two defendants from “tortiously interfering” with the other defendants’ noncompete agreements with BSN: ORDERED that Muscle Elements and Crane are enjoined from tortiously interfering with the Agreements between BSN and the other BSN Employees by, inter alia, facilitating the violation of said Agreements through [i] the use and/or disclosure of BSN’s Confidential Information, [ii] solicitation of BSN’s customers, [iii] engaging in business in competition with BSN and [iv] solicitation of and engaging in business with BSN’s customers. (Mot., Exh. A, at 16 [emphasis and brackets added] [cited at Mot. at 3].) The Injunction further had a separate express provision the plain language of which explicitly prohibited MEI from launching its website: “ORDERED that Muscle Elements is enjoined from launching its website for the remaining temporal terms of the Agreements.” (/d. at 17.) Rule 1.610 of the Florida Rules of Civil Procedure requires that every injunction “describe in reasonable detail the act or acts restrained.” Fla. R. Civ. P. 1.610(c). See Hasley v. Harrell, 971 So. 2d 149, 152 (Fla. 2d DCA 2007) (scope of injunction must be limited “to grant only the relief reasonably necessary to protect the established legitimate business interest”). Where an injunction “is ambiguous and could reasonably be interpreted in two ways,” the court 6may not hold a party “in contempt” for conduct that is within the bounds of a reasonable (even if mistaken) reading of the order. Power Line, 720 So. 2d at 548. Thus, to hold a party in contempt, the language of the injunction must be “clear and precise,” and the alleged misconduct must “clearly violate the order.” Paul v. Johnson, 604 So. 2d 883, 884 (Fla. 5th DCA 1992) (footnote omitted); see also Osmo Tec, 884 So. 2d at 326 (same). Put simply, “‘[a] judge cannot base contempt upon noncompliance with something an order does not say.”” DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) (quoting Keitel v. Keitel, 716 So. 2d 842, 845 (Fla. 4th DCA 1998)). And, “the Court must narrowly construe its injunction to reach only conduct that clearly violates it.” BASF Agro B.V. v. Cipla Ltd., 2012 WL 2023310 (M_D. Ga. June 5, 2012) (finding no violation of preliminary injunction where party subject to preliminary injunction purportedly used foundational knowledge from prior employer to formulate product for new company). See also 11A Wright & Miller, Fed. Practice & Procedure § 2955 (“all omissions or ambiguities [in an injunction] ... will be resolved in favor of [the enjoined party].”). BSN makes two arguments of contempt, one against Crane and the other against Tomko. Neither makes out a prima facie showing of a violation of the Injunction. 1. Crane’s Conduct BSN argues that Crane and MEI violated the Injunction because Crane continued to develop MEI products after the Injunction and because Crane sent an email on November 25, 2013 to GNC notifying GNC that MEI had products “ready to go.” The fact that MEI finished assembling the products it had in the pipeline before the Injunction is no violation of the Injunction. That did not involve selling the products (i.e., competing with BSN); nor did that completion of the packaging and receiving the productsviolate the provisions barring the defendants from soliciting business from BSN customers (i.e., distributors). In fact, BSN misinterprets Tomko’s testimony in this regard. Even just based on the portions of Tomko’s testimony cited by BSN, Tomko clearly testified at the September hearing that at the time of the hearing — before the Injunction — MEI had “four products ordered.” (See Mot., Exh. E at 252:20-25). During his deposition, he stated that some of the products had been delivered after the Injunction. But the fact that some of the product was delivered later is not inconsistent with the fact that the products had been previously ordered. (Mot., Exh. D at 23:25 to 26:21). BSN also alleges that two third-party websites — not controlled by MEI — are currently selling MEI products (Mot. at 8). But that is not true, and BSN’s own evidence shows it is not true. Those websites explicitly indicate that MEI products are not available; and one of the sites specifically notes that the product may never be available. See Attachment 1 [Webpage “screen shot” indicating that MEI products are “Currently Not Available. We don’t know when or if this item will be back in stock.”]; Attachment 2 [Webpage screen grab with legends stating, “We have stock,” affixed to non-MEI products, but no such legend for the depicted MEI product].)* There is no evidence that ME] is responsible for these posts on these websites — and it is not. MET has asked and will continue to ask these (and any other) third parties to remove these pages until MEI is legally permitted to launch. The November 25 email to GNC, as noted above, was Crane’s attempt to anticipate a favorable ruling on the motion to modify, which (at the time) the defendants hoped to have scheduled for hearing in early December. (The hearing was not scheduled in December, however, as the defendants’ effort to get the relevant discovery out to BSN was taking longer True and correct copies of the printouts of the referenced pages from www.phdonline.com.au and www.healthsuperstore.com are attached hereto as Attachments | and 2. 8than anticipated.) In any event, given that Crane is not under a contractual noncompete and the Injunction bars him only from tortiously interfering with the other defendants’ noncompetes, this conduct does not violate the Injunction — or at the very least does not violate one reasonable interpretation of the Injunction. BSN argues, however, that this email was sent on behalf of MEI and that, because the transfer of ownership of MEI (in BSN’s view) is a sham, MEI was still enjoined from making any sales contact with BSN customers. But that is the very issue that the defendants are trying to frame for adjudication on their motion to modify, after the relevant discovery. BSN’s mere say- so does not mean that this conduct amounts to a sanctionable breach. That is why the defendants had represented to BSN’s counsel that there would be no launch of MEI products until the motion to modify was heard and decided. To the extent that this Crane email is inconsistent with that representation, it was a “false start,” and will not happen again; but it still is not an intentional violation of the Injunction.’ 2. Tomko’s Conduct BSN alleges that an email that Tomko sent to some of his contacts (both personal and business) in the industry violated the Injunction. But the content of that email related only to the BSN/MEI litigation. In addition to stating that MEI and the other defendants are defending themselves in the lawsuit, pursuing appeals and other relief and expect ultimately to be vindicated after trial — standard fare for a party’s statement about pending litigation — the content of the email also notes that Tomko himself (and the other three defendants) are subject to a > Nor is Tiffany Trout’s continued employment with MEI a violation of the Injunction. First, she had been hired by MEI before the Injunction, not afterward and in violation of it. Second, MEI (now owned solely by Crane) is under no legal obligation by contract or otherwise not to employ her; nor is there any clear directive in the Injunction that her employment be terminated. See Cox v. Florida Mobile Leasing, Inc., 478 So. 2d 1200, 1201 (Fla. 4th DCA 1985) (“[t]he purpose of a preliminary injunction is to preserve the status quo until a final hearing when final relief may be granted”). BSN alleges (Mot. at p.9 n.9) that Trout herself is bound by a BSN noncompete. But that is inaccurate: her BSN agreement only bars her from soliciting BSN employees and BSN customers, neither of which she is doing at MEI. (See Mot., Exh. H.)court-ordered injunction and that he is barred from “working with MEI or otherwise competing with BSN.” What BSN complains about, however, is an additional sentence in which the email states that Crane and MEI are not barred by the court order from “operating” in the sports nutrition market. But this does not violate any plain term of the Injunction. (Mot. at 5). As noted above, this is a statement of the defendants’ legal position, what they intend to prove on their motion to modify. The last part states that Crane is “preparing” to launch MEI. Again, nothing in the Injunction prohibits Crane from planning MEI business. And this is not inconsistent with what the defendants’ counsel represented to BSN’s counsel in discussing the pending motion to modify. BSN’s motion ignores the numerous steps the defendants took to “stand down” and to suspend launching MEI or otherwise competing against BSN. After the Injunction, defendants aborted their plans for an industry conference at the end of September, pulled the plug on MEI’s website, shut down other social media about MEI, and pulled planned advertising of MEI and its products. Tomko, Tracy, Ramos and Smalls — the four individual defendants subject to non- competition and non-solicitation restrictions — resigned, and stopped work related to MEI (other than defending this litigation). Tomko and Tracy transferred their share of MEI ownership to Crane. And, most importantly, no MEI products have been sold. Thus, none of the complaints raised by BSN about Tomko’s and Crane’s conduct — even taken as true for purposes of this motion — can be a sufficient ground for a finding of contempt. See Power Line, 720 So. 2d at 548. The isolated conduct they identify does not “clearly violate” any “clear and precise” language of the injunction. Paul, 604 So. 2d at 884. “Unlike inhorseshoe pitching, coming close to the target in a court of law is not ‘close enough’ to score a finding of contempt.” Reder, 102 So. 3d at 742. Rather, plaintiff must show that defendants violated the letter of a preliminary injunction that “could [not] reasonably be interpreted in two ways,” Power Line, 720 So. 2d at 548, and that the “clear and precise” language of the injunction has been violated. Paul, 604 So. 2d at 884. BSN has done neither and its motion should be denied. B. No Sanction or Award of Attorney’s Fees Is Warranted Civil contempt is compensatory and not punitive and any sanctions “must be based upon evidence of an injured party’s actual loss.” Levy, 819 So. 2d at 868. Here, plaintiff has failed to demonstrate any damages resulting from the purported violations of the Injunction. Specifically, plaintiff does not allege any lost income, customers, clients, or other bases for economic damages. Instead, BSN seeks its attorney’s fees in bringing this motion for contempt. But this entire motion was not necessary because the core issue raised here — whether Crane and the reorganized MEI can launch their business — was previously raised by the defendants in the motion to modify, which the defendants were trying to provide discovery on and to schedule for a hearing to adjudicate this very issue in an orderly fashion. BSN’s motion for contempt is really just an improper attempt to de-rail the motion to modify, and put the defendants to the added — and needless — cost of this “emergency” motion. In fact, this sharp-practice by BSN should not be tolerated; it certainly should not be rewarded. Moreover, any order awarding sanctions for civil contempt “must include a purge provision” which “allows the fine to be avoided or reduced if the violator complies with the injunction.” Politz, 910 So. 2d at 398. Where the conduct at issue is not ongoing and thus cannot be purged, a sanction may be “suspended pending future compliance with the court’s 11prior orders,” which satisfies the “purge” requirement. Lewis v. Nical of Palm Beach, Inc., 959 So. 2d 745, 752 (Fla. 4th DCA 2007) (citations and internal quotations omitted). As noted above, Crane and MEI had “stood down” and have no intention to launch pending the resolution of the motion to modify and all of the defendants have taken significant steps to be in compliance with the Injunction. If any conduct is deemed to be violative of the Injunction, the defendants will comply and cease and desist. Nothing in the showing BSN has made on this motion suggests otherwise. Ill. | PLAINTIFF HAS NO BASIS TO SEEK REVOCATION OF PRO HAC STATUS BSN bases its request that the Court revoke the pro hac status of Bowen on the ground that Bowen “is encouraging the launch of the Muscle Elements business.” (Mot. at 14). Bowen did nothing of the sort — he certainly did not encourage the “launch” of the business in violation of the Injunction (which is what BSN means to say). In fact, even the “facts” cited by BSN show that Bowen was (and is) taking steps in this litigation so that the defendants not only do not violate the Injunction but also are not misperceived as doing so. For this portion of its motion, BSN cites a letter Bowen wrote to BSN’s counsel. That letter, however, notified BSN counsel (i) that the ownership of MEI had been transferred to Crane and (ii) that the defendants took the legal position that the Injunction did not bar Crane and the reconfigured MEI from marketing the MEI products so long as the other defendants were no longer involved. After BSN’s counsel objected to that interpretation of the Injunction, Bowen notified BSN (in a phone conference) that there would be no “launch” until this dispute was resolved through MEI’s motion to modify. By no stretch is that an attempt to make an end-run around the Injunction.BSN next complains that Tomko’s email included text written by Bowen, which text consists of a description of the BSN/MEI litigation — including the fact that Tomko and the others were under a court-ordered injunction — and a statement of MEI’s legal position concerning MEI and Crane. But again that email (also discussed above) does not state that Crane and MEI are launching or have launched. It stated only that Crane was “preparing” to launch MEI. While the legal position is stated forcefully, it does not state that the launch is taking place no matter what, and nothing about this email suggests that it was intended to convey that meaning or that Bowen had that intent. Given the evidence of the undeniable fact that Bowen (and the defendants) raised this issue on the MEI/Crane motion to modify and then engaged in negotiated expedited discovery (including Tomko’s deposition) in order to develop a fact record about the bona fides of the MEI ownership transfer, there can be no mistake that Bowen and the defendants were doing exactly the opposite of BSN’s accusation: He had tried to make sure that BSN knew what the defendants were doing and, to the extent that they had a dispute, he took steps to frame the issue, produce the relevant fact information in discovery, and get the matter adjudicated in an orderly fashion. The relief BSN seeks is drastic and way out of proportion to any reasonable interpretation of Bowen’s conduct: it has dire implications for MEI, Crane, Tomko, Tracy, Smalls and Ramos. “Clients have the right to expect that they may choose counsel when legal services are required and, with few exceptions, nothing that lawyers and law firms do shall have any effect on the exercise of that right.” Melton v. State, 56 So. 3d 868, 873 (Fla. 1st DCA 2011) (quoting R. Fla. Bar 4-5.8(b)). An order “deny[ing] a party its counsel of choice . . . constitutes a material injury” to the party. THI Holdings, LLC v. Shattuck, 93 So. 3d 419, 422 (Fla. 2d DCA 2012). See alsoKelley v. Kelley, 123 So. 3d 692 (Fla. 4th DCA 2013) (citing Info. Sys. Assocs., Inc. v. Phuture World, Inc., 106 So. 3d 982, 984 (Fla. 4th DCA 2013)) (noting irreparable harm to party associated with deprivation of counsel of choice). A court’s discretion to revoke pro hac must be weighed against this injury to the party, and revocation here would be improper given the complete absence of misconduct and the serious injury to defendants that would result. See Brooks v. AMP Servs. Ltd., 979 So. 2d 435, 439 (Fla. 4th DCA 2008). “Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes. Minakan v. Husted, 27 So. 3d 695, 698 (Fla. 4th DCA 2010) (quoting Alexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607, 608-09 (Fla. 4th DCA 2004)). Such “skepticism” is appropriate here as Bowen has engaged in no improper conduct, and the present application has clearly been “interposed for tactical purposes.” Id. “When pro hac vice admission is revoked, it ordinarily is the result of a motion alleging intentional and egregious misconduct.” Brooks, 979 So. 2d at 438. See also Clare v. Coleman (Parent) Holdings, Inc., 928 So. 2d 1246, 1249 (Fla. 4th DCA 2006) (noting that allegation of purported misconduct by client does not warrant rescinding pro hac admission). There has been no showing of such conduct by Bowen even approaching this standard. Accordingly, there simply is no basis to strip Bowen of his pro hac status.4 ‘4 In the event that the Court does not dismiss BSN’s charge against the defendants’ lead counsel, then the defendants and Bowen will seek a continuance to afford all parties an opportunity to consult and retain independent conflict counsel to advise them as to the various potential conflicts, their legal and due process rights, and to address privilege and other evidentiary issues. 14Conclusion WHEREFORE, for the aforementioned reasons, defendants respectfully request that plaintiff's Motion for Contempt and to Revoke Counsel’s Pro Hac Vice Admission be denied in its entirety. Dated: December 12, 2013 Respectfully submitted, KASOWITZ, BENSON, TORRES & FRIEDMAN LLP The Four Season Tower 1441 Brickell Avenue, Suite 1420 Miami, Florida 33131 Telephone: (305) 377-1666 Facsimile: (305) 377-1664 MBowen@kasowitz.com RJacobson@kasowitz.com By: /s/ Michael P. Bowen Michael P. Bowen (admitted pro hac vice) PHV Number: 104578 Rachel M. Jacobson Florida Bar No. 0091732 Attorneys for Defendants/Counterclaim Plaintiffs Muscle Elements, Inc., Casey Crane, James Tracy, Eric Tomko, Kevin Ramos, and Marcus SmallsCERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Defendants/Counterclaim Plaintiff's Memorandum of Law in Opposition to Plaintiff's Motion for Contempt and to Revoke Counsel’s Pro Hac Vice Admission was furnished by e-mail to all counsel listed in the attached service list this 12" day of December 2013. Eric D. Isicoff, Esq. isicoff@irlaw.com Teresa Ragatz, Esq. ragatz@irlaw.com Christopher M. Yannuzzi, Esq. yannuzzi@irlaw.com Isicoff, Ragatz & Koenigsberg 1200 Brickell Ave., Ste. 1900 Miami, FL 33131 Telephone: (305) 373-3232 Facsimile: (305) 373-3233 Counsel for Plaintiff /s/ Michael P. Bowen Attorney SERVICE LIST Bridget A. Berry, Esq. berryb@gtlaw.com Greenberg Traurig LLP 777 South Flagler Dr., Ste. 300 East West Palm Beach, FL 33401 Telephone: (561) 650-7900 Facsimile: (561) 655-6222 Counsel for PlaintiffEXHIBIT 142413. Health Superstore Daily Detox Eco-Dent Enerhealth B Gluten Free Sensations Golden Earth Head Products jealthy Ori Herbal Glo Kiss My Faco Manuka Doctor Maritzmayer Metabolife Naturasit Natures Herbs Neocell Laboratories Nutrasumma Nutri-Fusion Systems/Fusion Diet Systems Pure & Basi Raw Revolution Rise Bar Salba Smart Similasan Top Secret Nutriti Turn 2 Ta itol Wellements Zahler ug Show More Brands uy Special Deals ) Products on Sale. is Brand ai Organic Products i Juice Allergy Relief Alpha Lipoic Acid Antioxidant Formulas Antioxidants Aromatherapy Beauty Muscle Elements Me 212 60¢ «com Search Product Code or Product Name Here Muscle Elements Me 212 60c Be the first of your friends to recommend this. 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