Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 1 of 64 James E. Magleby (7247) magleby@mcgiplaw.com Christine T. Greenwood (8187) greenwood@mcgiplaw.com Adam Alba (13128) alba@mcgiplaw.com MAGLEBY CATAXINOS & GREENWOOD 170 South Main Street, Suite 1100 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiff Purple Innovations, LLC IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION PURPLE INNOVATIONS, LLC, A Delaware limited liability company, COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, v. HONEST REVIEWS, LLC, a Florida Corporation, RYAN MONAHAN, an individual, and GHOSTBED, INC., a Delaware corporation, Defendants. Case No.: 2:17-cv-00138-PMW Magistrate Judge Paul M. Warner Plaintiff Purple Innovations, LLC, by and through its counsel MAGLEBY CATAXINOS & GREENWOOD, alleges and complains against Defendants Honest Reviews, LLC, dba as or through www.honestmattressreviews.com, Ryan Monahan, and GhostBed, Inc., (collectively, “Defendants”) as follows: Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 2 of 64 INTRODUCTION 1. This case involves false and misleading statements disseminated across the internet about Purple Innovations, LLC (“Purple”), a Utah-based mattress company, by a primary competitor, Defendant GhostBed, Inc. (“GhostBed”), including specific statements that GhostBed had previously agreed to remove from its website and various social media platforms. Now, however, those and other false and misleading statements are being made on a newly-created mattress-industry related blog, www.honestmattressreviews.com (the “Blog”), which purports to be “honest,” but is anything but. Specifically, Defendants Honest Reviews, LLC (“HMR”) and Ryan Monahan (“Monahan”) have begun a groundless campaign against Purple, which has enjoyed recent and rapid success in the “bed-in-a-box” (“BIB”) mattress market and is quickly overtaking GhostBed as an industry leader. Upon information and belief, GhostBed, where Monahan is or recently was employed, is participating in or sponsoring the campaign, as well as substantially benefiting from the campaign. 2. The campaign launched by Defendants includes numerous false and misleading statements about Purple and its products and services, including without limitation false allegations regarding the safety of Purple’s mattresses, the purported lack of adequate safety testing for Purple’s products, and Purple’s alleged deception of its customers in this regard. In fact, many of the statements go so far as to imply that Purple’s mattresses are dangerous and can lead to serious diseases or even death. These statements are false and unfounded, and Defendants provide no basis or evidence to support any such statements in the Blog or elsewhere. 2 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 3 of 64 3. Even more troubling, HMR makes a number of purported “disclaimers” on the Blog (the “Disclaimers”), which are also false and misleading. Among other things, HMR and Monahan purport to be independent and unaffiliated with any particular mattress company, such that their reviews are entirely without bias, but they fail to disclose that Monahan has or had in the past very close ties to GhostBed, which as noted is one of Purple’s main competitors. Indeed, Monahan was previously employed as GhostBed’s Chief Brand Officer (and, HMR consistently ranks GhostBed as one of the top BIB mattresses). This association is referenced nowhere on the Blog, and in fact it appears that Monahan has attempted to conceal his association with GhostBed. At or about the time that Monahan created HMR and the Blog, Monahan attempted to scrub his digital footprint reflecting that affiliation. The Disclaimers are false and misleading in this regard. 4. In addition, the Disclaimers represent in misleading fashion that HMR and Monahan are not compensated directly by mattress manufacturers, stating that the “website receives zero affiliate commissions.” However, this carefully worded language leaves open the possibility that HMR or Monahan receive direct or indirect payments or other valuable consideration, including without limitation advertising income from favorably-reviewed companies, which payments are not characterized as “commissions” but nevertheless directly or indirectly benefit HMR, Monahan, or a related entity. 5. This evidence establishes a reasonable belief that HMR, Monahan, and/or other entities owned or controlled by Monahan, are directly or indirectly – and surreptitiously – working with GhostBed to make false and misleading statements of fact 3 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 4 of 64 that are specifically designed to promote GhostBed’s products over those of Purple and other manufacturers and that, in return, GhostBed is compensating HMR, Monahan, or other related entities, and in this way engaging in and attempting to conceal conduct Defendants know to be illegal. PARTIES 6. Plaintiff Purple Innovations, LLC (i.e., “Plaintiff” or “Purple”), is a Delaware limited liability company with its principal place of business in Utah County, Utah. The principals of Purple are residents of Utah County, Utah. 7. Defendant Honest Reviews, LLC, dba as or through www.honestmattressreviews.com (i.e., “HMR”) is a Florida limited liability company with its principal place of business in Plantation, Florida. 8. Defendant Ryan Monahan (i.e., “Monahan”) is an individual who, upon information and belief resides and conducts business in Plantation, Florida. Upon information and belief, Monahan is the owner, Editor in Chief, and primary architect of HMR. 9. Defendant GhostBed, Inc. (i.e., “GhostBed”), is a Delaware corporation, with its principal place of business in Plantation, Florida. JURISDICTION AND VENUE 10. This is a civil action for unfair competition under Section 43(a) of the Lanham Act and Utah common law. Jurisdiction in this Court is founded upon 28 U.S.C. §§ 1331, 1332, and 1338. 4 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 5 of 64 11. With respect to 28 U.S.C. § 1332, diversity jurisdiction is present because, while Purple is a citizen of Utah, all of the Defendants reside in other states. The amount in controversy is in excess of $75,000. 12. This Court has personal jurisdiction over Defendants because they have conducted continuous and systematic business in the state of Utah, have numerous contacts with the state of Utah, and have committed and continue to commit acts of false advertising and related tortious acts in this district, as alleged herein. 13. Venue is proper in this district pursuant to 28 U.S.C. §§ 1400(b) and 1391(b) and (c). FACTUAL ALLEGATIONS Purple 14. Purple is an innovative and successful Utah company focused upon bringing technologically advanced comfort products to the market to resolve and alleviate pain experienced by consumers while lying in bed, sitting, or standing. 15. Since launching its first mattress product, the Purple® Bed, Purple has enjoyed tremendous success, growing from fewer than 50 employees in January 2016 to over 600 employees in February 2017. 16. Purple has also expanded its business beyond the Purple® Bed, and now provides a variety of innovative, quality products related to the mattress and sleep market, including the Purple® Pillow. 5 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 6 of 64 17. The seeds of Purple’s business were planted in 1989, when brothers Tony and Terry Pearce, both engineers, decided to apply their engineering skills to develop innovative products that would improve the quality of life for their customers. 18. By 1993, the Pearces discovered that there was a pressing need for better wheelchair cushioning. Pressure sores were a common and extremely painful reality in the lives of wheelchair users. Taking on that challenge, the Pearces created Floam™, the world’s lightest-weight cushioning fluid. Soon, the Pearces obtained five patents associated with Floam™, which was being used in not only wheelchair cushions, but also by major licensees in products such as critical-care medical beds (Hill-Rom), footwear (Nike), ankle/knee braces (Johnson & Johnson), and golf bag straps. 19. The key discovery came when Hyper-Elastic Polymer™ was molded in a shape that could “relax” under pressure points, redistributing the pressure to other areas. The same feature turned out to provide highly effective back support in mattresses. 20. As time went on, the Pearces or their companies licensed predecessor products of Purple to numerous different entities, including makers of critical care medical beds (Stryker Medical); consumer mattresses in Europe (Svane by Ekornes), Japan (Francebed), and Australia (Sleepmaker); backpack straps (Jansport); shoe insoles (Dr. Scholl’s Massaging Gel and Sof-Sole); pillows (Sleep Innovations); softcatch toy balls (Nickelodeon); wheelchair cushions (EquaPressure); and many other advanced cushioning products. 6 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 7 of 64 21. Eventually, the Pearce brothers created a patented machine called Mattress Max™, which took over two years and several million dollars to develop. Now, the Mattress Max™ is used to make Hyper-Elastic Polymer™ in the USA in sizes large enough to fully cover a king-sized mattress, and at production rates and costs that allow the products to be sold affordably online. Additional innovations and improvements were made over time, including as to the proprietary non-toxic anti-tack powder, for which Purple is seeking patent protection, that effectively prevents the mattresses and pillows from sticking to themselves when compressed for shipment, enabling more effective packaging and delivery to customers. 22. In all, the Pearce brothers have over 30 cushioning patents, and they are known the world over as the premier source for superior cushioning technology. Purple’s Online Marketing Strategy 23. Beginning in 2016, Purple embarked upon a marketing and sales strategy designed to get its products into the hands of consumers at better-than-competitive prices. 24. In particular, and in addition to its efforts to keep costs for its made-in-the USA products low, Purple has successfully focused upon the “Bed in a Box” (“BIB”) mattress market segment. Purple does not have brick and mortar stores but instead sells its bedding products solely through an e-commerce platform. 25. Purple’s competitors in the BIB market include GhostBed, Casper, Leesa, and Tuft & Needle, among others. 7 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 8 of 64 26. The cost savings from this market strategy, which are passed along to consumers, are illustrated by a graphic on Purple’s website: 27. In response to online orders, Purple delivers mattresses to consumers for a risk free trial of the Purple®Bed. In fact, Purple currently offers consumers 100 days to try its mattress product, and it provides a full refund if the customer is not satisfied. 28. The BIB segment is the fastest growing segment in the multi-billion-dollar mattress industry. In 2015, the BIB market only accounted for an estimated 9% of online mattress purchases, but by 2016 the BIB market had grown to an estimated 30% of online purchases, representing a growth in the hundreds of millions of dollars. 29. For example, one estimate is that the BIB market share of $800 million in 2016 will grow to $1.4 billion by the end of 2017. 30. Although Purple did not launch its mass production and major marketing campaign until January 2016, Purple has become one of the four leading BIB companies, experiencing exponential and rapid growth. 8 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 9 of 64 31. Indeed, Purple’s website has drawn at least tens of millions of visitors, and its marketing videos have been viewed by hundreds of millions of viewers. Purple’s popularity and high online visibility may actually be contributing to Defendants’ efforts to malign Purple by drawing additional visitors to the HMR Blog and related social media, because the HMR Blog and social media posts are likely to appear as search results, thus diverting potential customers to the Blog and GhostBed’s “world class” rating on the Blog. 32. Given Purple’s success, Purple poses a significant threat to its competitors, including in particular GhostBed, which accordingly has a strong incentive to undermine Purple in the BIB market. The Mattress Review Business 33. Because of the already-large traditional mattress market and the growing BIB market, and because of the importance of customer and other reviews to an ecommerce market strategy, a number of websites have emerged that include reviews of both traditional and BIB mattresses. These websites include not just platforms for consumer reviews, but also websites that purport to offer “professional” or “test-based” reviews of mattresses, such as the HMR Blog. 34. Because Purple relies strictly on an e-commerce sales strategy, online comments and reviews can be very significant to its business. 35. For example, a March 2016 Wall Street Journal article described the importance of reviews in this new market segment, discussing one such customer named Will Haley: 9 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 10 of 64 It is a process aimed at the often wealthier, younger and busy shoppers who care less about kicking the tires and more about convenience. Mr. Haley says he felt comfortable buying the mattress sight unseen because online reviews are enough quality control. “Anything I can buy online, I do,” he says. (Emphasis added). 36. Defendants HMR and Monahan appear to agree with this perspective. As they posted on the Blog: https://www.honestmattressreviews.com/mattress-reviewers/ 37. Purple welcomes the intense customer and reviewer scrutiny that is found in the marketplace of ideas that is the internet. Purple’s products are high-quality, safe, and deliver on the promise of providing a superior sleep experience to its customers. 38. Reviews that are false or likely to confuse or mislead consumers pose a substantial threat to Purple, which relies so heavily upon an e-commerce platform, including the associated marketing of its products. The “honestmattressreviews.com” Blog and the Campaign Against Purple 39. In recent months, Purple became aware of a new mattress review website, “honestmattressreviews.com,” (i.e., the “Blog”), which purports to be an “honest” and “unbiased” mattress review service. Starting in January 2017, Purple discovered that the HSR Blog had begun posting false information regarding Purple and its products, including posts calling into question the safety of the Purple® Bed products. 10 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 11 of 64 40. Over the course of just a few weeks, the Blog has made five (5) posts regarding Purple, which are prominently displayed on the Blog and are misleadingly represented as “articles” and/or “breaking news.” These posts directly attack Purple and its products, making both literally false statements and statements that are highly likely to mislead consumers. 41. Each of these posts or “articles” is readily accessible to the public. The Blog contains multiple links to each post, such that the posts can be accessed in numerous ways through the Blog, and the images associated with the posts are continually displayed to consumers throughout the Blog. Defendants have also posted some or all of these posts (or links to the posts) on various social media platforms, including Facebook and Twitter. The posts can also be located through simple internet searches, including through Google. 42. The “Articles” are titled as follows: (a) “WHAT EXACTLY IS THAT WHITE POWDER ON PURPLE’S MATTRESS?” (the “White Powder ‘Article’”), attached hereto as Exhibit “1.” (b) “A DEEPER INVESTIGATION INTO PURPLE MATTRESS & PILLOWS WHITE POWDER” (the “Purple Investigation ‘Article’”), attached hereto as Exhibit “2.” (c) “PSA DUE TO PURPLE’S UNKNOWN POWDER WE’RE REVOKING OUR ENDORSEMENT” (the “Revoked Endorsement ‘PSA’”), attached hereto as Exhibit “3.” (d) “PURPLE ACKNOWLEDGEMENT OF THE WHITE POWDER STILL MISLEADS CONSUMERS” (the “Purple Misleads Consumers ‘Article’”), attached hereto as Exhibit “4.” 11 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 12 of 64 (e) “MATTRESS REVIEWERS HAVE A RESPONSIBITY TO ACKNOWLEDGE CONSUMER SAFETY” (the “Responsibility ‘Article’”), attached hereto as Exhibit “5.” Defendants Have No Evidence That Purple’s Products Are Unsafe 43. The overall message of the “Articles” posted by Defendants is clear: Purple’s products are unsafe, pose a danger to consumers, and Purple has something to hide. This message, however, is demonstrably false and unsupported by any evidence. 44. For instance, upon information and belief, none of Defendants have conducted any safety or other testing of Purple’s products. 45. Defendants also have no evidence to suggest that Purple’s products are in any way unsafe. 46. Despite these facts, and despite HMR having obtained at least one materials information statement regarding the Purple® Bed product, HMR has chosen to ignore both the publicly-available safety information regarding Purple’s products and the lack of any information to suggest that Purple’s products are unsafe. Instead Defendants have intentionally elected to launch an unfounded campaign of false and misleading statements and innuendos against Purple and its products, causing reasonable consumers to believe that Purple’s mattress and pillow products have been reported in “articles” founded upon an independent investigation to be unsafe and in need of warnings, that Purple is hiding those facts from consumers, and that Purple is knowingly putting the health of consumers at risk. 12 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 13 of 64 The First Post: The White Powder “Article” 47. The White Powder “Article” was posted on the Blog in approximately mid- January 2017, setting the stage for Defendants’ smear campaign. 48. The White Powder “Article” purports to ask a series of inflammatory questions about a white, powdery substance that appears on Purple® Bed products. The “Article” also makes statements that are false and likely to mislead or confuse consumers to believe (among other things) that Purple’s products – including the powder substance on the mattresses – are dangerous and that Purple is deliberately withholding safety information from consumers. False and Misleading Statements Regarding Product Safety 49. The inflammatory questions in the White Powder “Article” include the following: 50. Despite the lack of any evidence to support the claim, these questions clearly are designed to mislead consumers to believe that Purple’s products are unsafe. 51. Moreover, the White Powder “Article” falsely suggests that the powder on Purple’s products is “Talcum Powered,” references multi-million dollar lawsuits involving babies,” and indicates that baby powder has been found to cause Ovarian cancer: 13 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 14 of 64 52. As with the other inaccurate and unfounded statements in the White Powder “Article,” these statements deliver the unmistakable message that the powder is or contains talcum powder (when the call referenced on the website makes clear that the powder is not talcum powder) or some other unknown harmful substance, and that Purple’s products are unsafe, toxic, and cause cancer. False Statements Regarding Purple’s Alleged Lack of Responsiveness 53. The White Powder “Article” also includes statements falsely representing that Purple is withholding safety information from consumers and has failed to respond to inquiries regarding the safety of its products: 54. The White Powder “Article” further falsely asserts that Purple is not interested in the consumer or consumer safety: 55. Another statement in the White Powder “Article” likewise falsely indicates that Purple is not transparent with consumers, is withholding safety information from consumers, and (again) that Purple’s products are not safe: 14 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 15 of 64 56. In fact, the White Powder “Article” intentionally cements the suggestion that Purple is improperly withholding safety from consumers by giving it an “F” grade in that category: The Second Post: The Investigation “Article” 57. The Investigation “Article” was posted within a week of the White Powder “Article,” and it builds upon the same theme. The Investigation “Article” was posted with the headline “BREAKING NEWS” in all capital letters. 58. Like the White Powder “Article,” the Investigation “Article” purports to ask a series of inflammatory questions calling both the safety of Purple’s products and the integrity of its business into question, including numerous false and misleading statements regarding those topics. 59. For example, the Investigation “Article” repeats the statements falsely suggesting that Purple has been withholding safety information from consumers and has not responded to inquiries, such as that “Purple elected not to respond” to email or social network inquiries (and Purple is not aware of any such attempts): 60. The Investigation “Article” also reiterates the inflammatory questions included in the White Powder “Article,” again strongly suggesting that Purple’s products are unsafe: 15 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 16 of 64 “ 61. Although Purple uses only new materials in its manufacturing, the Investigation “Article” inaccurately states that Purple does not use new materials in its products, again raising the specter that Purple’s products are dangerous: 62. The Investigation “Article” makes unsupported statements to the effect that consumers will inhale the powder for eight hours while sleeping, again for purposes of suggesting that Purple’s products are dangerous: 63. In addition, the Investigation “Article” suggests that Purple is obligated to have a certain level of “scientific proof” about its products, that it does not have this level of proof, and that Purple’s products are unsafe as a result: 64. Again creating the impression that Purple’s products are unsafe and its product testing is inadequate, the Investigation “Article” makes statements that Purple’s 16 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 17 of 64 products are not safe for long term contact, that Purple is acting “recklessly” as to an “untested substance,” and that Purple’s products will “impact one’s short or long-term health:” 65. As yet another example of these groundless claims, the Investigation “Article” makes statements suggesting that the powder is the same as a “ground down” “plastic mustard container” or “glass coke bottle,” which consumers will inhale every night for “eight to ten hours,” yet again suggesting that Purple’s products are not safe: 66. Following these statements, the Investigation “Article” embeds a YouTube video showing the well-known-to-internet-users “cinnamon challenge,” in which a person attempts to swallow a spoon of cinnamon. The video includes an opening image of a woman who appears to be exhaling a caustic, brown substance: 17 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 18 of 64 67. The title page of the video is as follows: 18 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 19 of 64 68. The cinnamon challenge video, which has absolutely nothing to do with Purple or its products, shows people choking, coughing, gagging, spitting, crying, and attempting to rinse their mouths out with water. 69. It has been reported in the media that some people have literally died as a result of the cinnamon challenge. 70. The Investigation “Article” goes on to discuss the cinnamon challenge as if to compare it to the Purple products, emphasizing the words “dragon breath” and reports to “poison control:” 71. The Investigation “Article” further makes statements suggesting that Purple was approached by “customers” “with respiratory conditions such as Asthma,” when – according to the Blog – there was a single telephone call made by someone who did not say they had asthma (and Purple is unaware of any additional approaches by “customers” with asthma). The statements are designed to confuse consumers and cause them to believe that Purple’s products are harmful to persons with asthma, that Purple’s products are not safe, and that Purple is withholding safety information from consumers: 19 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 20 of 64 72. The Investigation “Article” falsely asserts that Purple is engaging in a “deceptive business practice” that could “potential [sic] irritate or even impact they [sic] health of tens of thousands of unknowing consumers,” suggesting that Purple is acting intentionally and illegally to deceive its customers, including by hiding the fact that its products are unsafe and pose health risks to “tens of thousands” of customers: 73. The Investigation “Article” likewise alleges that Purple is unlawfully withholding information from consumers that it should be required to have a disclosure regarding the powder on its “law tag” (also suggesting that Purple is violating the law): The Third Post: The Revoked Endorsement ‘‘PSA” 74. The Revoked Endorsement “PSA” was posted the week following the Investigation Article (just two weeks ago). Its purpose and effect is to increase the significance of the campaign in the minds of reasonable consumers. 75. The Revoked Endorsement “PSA” is or was prominently displayed on the homepage of the HMR website, in a series of stories that are presented as if they are legitimate news articles, with the headlines in all capitals of “EDITOR’S TOP PICKS” and “INDUSTRY NEWS”, with the tag line “PSA Due to Purple’s Unknown Powder We’re Revoking Our Endorsement,” as follows: 20 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 21 of 64 76. The top of the Responsibility “Article” also includes, in larger form, the image of a large “”X” in the red circle: 77. The Revoked Endorsement “PSA” is and was also accessible to the public in a number of other ways through the Blog, and as a result of internet searches such as through Google. 21 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 22 of 64 78. These images and language are false and misleading because they suggest to consumers that HMR is reporting objective “news,” through the use of the prominently displayed headlines “EDITOR’S TOP PICKS” and “INDUSTRY NEWS,” when HMR is not a news organization. 79. The Revoked Endorsement “PSA,” like the prior “Articles,” purports to ask a series of inflammatory questions, designed to convey to consumers a literally false and misleading message that the Purple mattress is unsafe, and that Purple is withholding safety information from consumers. 80. The Revoked Endorsement “PSA” includes the initials “PSA,” obviously standing for “Public Service Announcement,” which falsely suggests independence and altruism, that the “PSA” originated from or is endorsed by a governmental body, and that it is related to health and safety, that is, that Purple’s products are not safe. 81. The Revoked Endorsement “PSA” includes statements about Purple failing to give a “consumer warning,” “deliberately choosing not to inform customers,” and “deliberately” deceptive “business practices;” and references to multiple customers “with respiratory conditions,” “Asthma,” and the “seriousness” of “inhalation of this powder.” Again, these statements are designed to suggest – without any evidence – that Purple’s products are unsafe and that Purple is withholding safety information from consumers: 22 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 23 of 64 82. The Revoked Endorsement “PSA” also alleges that Purple has decided to “run fast and figure out problems later,” suggesting that Purple’s products are not safe and that Purple is withholding safety information from consumers: 83. Also included are statements that Purple is “subjecting consumers to a powder that could impair or impact their physical health:” 84. As with the other “Articles,” the Revoked Endorsement “PSA” falsely suggests that consumers purchasing Purple’s products will be “directly inhaling a white powder substance” which “could be damaging to those with respiratory issues,” and falsely asserts that Purple has used “made up tests:” 23 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 24 of 64 Purple Responds to the Misleading Posts by Defendants HMR and Monahan 85. Convinced that HMR and www.honestmattressreviews.com are not interested in an actual, fair dialogue, and that HMR would intentionally continue its clever use of innuendo, indirect intimations, and ambiguous suggestions to misrepresent anything submitted by Purple to HMR, Purple attempted to respond to Defendants’ false, misleading, and confusing statements by posting truthful information about the non-toxic plastic powder on its own blog: 24 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 25 of 64 86. Purple explained, among other things, that the purpose of the non-toxic powder was to prevent Purple’s Hyper-Elastic Polymer™ from sticking to itself, that the powder is non-toxic, chemically inactive, is harmless, and is as safe as eating with a plastic fork: ... 87. Purple also explained that the powder was so innovative as to be proprietary, and that it could not release the details until after its pending patents became publicly available, a standard and well-known business strategy employed by every responsible corporate entity that is protecting its intellectual property: 25 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 26 of 64 The Fourth Post: The Purple Misleads Consumers “Article” 88. The Purple Misleads Consumers “Article” was posted shortly after February 13, 2017 (late last week). 89. Like the Revoked Endorsement “PSA,” the Purple Misleads Consumers “Article” is or was prominently displayed on the homepage of the HMR website, in the top-left of a series of stories that are depicted as if they are legitimate news articles, with the headlines in all capitals of “BREAKING NEWS” and “INDUSTRY NEWS,” with the tag line “Purple’s Acknowledgement Of The White Powder STILL Misleads Consumers,” as follows: 26 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 27 of 64 90. These images and language are false and misleading because they suggest to consumers that HMR is reporting objective “news,” through the use of the prominently displayed headlines ““LATEST NEWS,” ”BREAKING NEWS,” and INDUSTRY NEWS,” when HMR is not a news organization. 27 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 28 of 64 91. The Purple Misleads Consumers “Article,” like the prior “Articles,” asks a series of inflammatory questions designed to convey to consumers a literally false and misleading message that the Purple mattress is unsafe and that Purple is withholding safety information from consumers. 92. By virtue of its title, the Purple Misleads Consumers “Article” falsely asserts that Purple is engaged in a deliberate campaign to deceive consumers, including by improperly withholding safety information from consumers. 93. The Purple Misleads Consumers “Article” claims that HMR has been making repeated inquiries to Purple for information, for “159” days, when the Blog identifies only two such instances, generic telephone inquiries to the general customer service department (and Purple is unaware of any other such inquiries), again for purposes of demonstrating that Purple’s products are hazardous and that Purple is withholding safety information from consumers: 94. The Purple Misleads Consumers “Article” falsely suggests that Purple is rejecting accountability for consumer safety: 95. For example, the Purple Misleads Consumers “Article” reports that Purple does not have safety documentation, that Purple has an obligation to release such information, and that Purple’s public statements on these issues are false: 28 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 29 of 64 96. The Purple Misleads Consumers “Article” further claims Purple is not transparent and is not “honest and upfront” about the “microscopic powder form that could be inhaled,” in yet another transparent attempt to harm Purple’s reputation, integrity, and goodwill: 97. The Purple Misleads Consumers “Article” also implies that Purple had experienced an “unforeseen problem” in its product development and was making “adjustments” as a result, again for purposes of showing that Purple’s products are unsafe and that Purple is withholding safety information from consumers: 98. The Purple Misleads Consumers “Article” asserts that Purple has or is going to change the powder to hide the fact that it was not safe, that Purple is treating its customers as “guinea pigs,” and that Purple does not have safety information: 29 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 30 of 64 99. Defendants further assert in the Purple Misleads Consumers “Article” that Purple does not use “science,” that Purple does not think facts and science are important and that, because Purple has a patent pending, it should disclose its secret formula – misleading the consumer into believing that patent applications are public (and failing to disclose to consumers the risks from a premature disclosure): 30 Case Document 2 Filed 02/24/17 Page 31 of 64 Science is rooted in truth and proven fact. For a company that claims to be Super Sciencey? you continue to neglect a few very scientific components (such as material disclosure), that you clearly don ?t see as important per your comical response. Purple: So Sciencey lt' ll Put You To Sleep- YouTube yomcbe com/watch?v- qCuPOerqu 3 y. A See ,us how Purple: hyper ?Basic 9c y'nei owe you the test my is sleep you have me ?ad' Pwplu You also seek sympathy in ?protecting 600 Jobs' and in your ?trade secrets' which provides you some form of shielding from disclosure. Our sczentists dde': solve problem they found a safe Opth" .n Cong so am have aopued fer a patent Untl the pate'i: IS .ssmd, lS Keeping the exact type ol pastic a tame secret' wmci? helps grotec: the jobs of those 600 people from cornpetators who love to ?gure 0o! "'iow to do what Purple does But know that .t .s a very common type of plastic used in many human {Ouch p?OduCtS even in products for children But, your processes is patented and protected. If it wasn?t already protected intelIiBED wouldn?t have to have this disclosure on the footer of their website. After all, they use the same technology or process, right? It says it's licensed to a company owned by Tony Pierce. intelliBED's Footer, IS A REGISTERED TRADEMARK OF EDIZONE, LLC OF ALPINE, UTAH USA. PROTECTED BY U.S. PATENTS 5,749,111, 6,026,527, 6,413,458, 7,060,213, 7,076,822, 7,666,341. IS A REGISTERED TRADEMARK OF ADVANCED COMFORT TECHNOLOGIES INC. OF SALT LAKE CITY, UTAH Purple-'5 Fonzitia-rr ?Protected by one or more of U.S. Patents 5,?49,111; tween; ?,?3u,5iss; ?,323,233; wazasas; ?,9is4,sis4; and 9,051,159, with others pending. Purple and all product names comprising Purple, Hyper?Elastic Polymer, and No Pressure are trademarks of LLE of Alpine, Utah ill'rlhli: u?u H-d-q. 5.. -.. - 31 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 32 of 64 100. Defendants further claim that Purple is dismissive of its customers, that Purple thinks they are “naïve,” that Purple is “insulting” its customers, and that Purple is otherwise withholding safety information from consumers: 101. The Purple Misleads Consumers “Article” includes an inflammatory graphic depicting Purple’s products as sausage, complete with an image of a meat grinder with plastic items being poured onto a Purple mattress: 32 Case Document 2 Filed 02/24/17 Page 33 of 64 FOOD CONTACT GRADE USEAGE Ill NE Dom Know IHE mm MAKEUP AS n's 33 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 34 of 64 102. The Purple Misleads Consumers “Article” includes statements that are designed to mislead consumers into believing that Purple has definitively refused to provide information to demonstrate that its products are safe, despite the fact that Purple has posted such information on its own website, and again makes numerous inflammatory and misleading statements in an effort to support its allegation that Purple’s products are unsafe: 34 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 35 of 64 103. The Purple Misleads Consumers “Article” has statements to the effect that Purple’s products are like “inhaling gasoline,” that Purple does “not put[] consumer safety first,” and that Purple has directly contradicted itself: 104. The Purple Misleads Consumers “Article” suggests that Purple is putting its 600 employees’ health at risk, that Purple should be providing “training and education” on health risks to its employees, and that Purple should have its employees wear protective gloves: 35 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 36 of 64 105. Like the previously-discussed “Articles,” the Purple Misleads Consumers “Article” falsely suggests that consumers purchasing Purple’s products will be “directly inhaling a white powder substance,” which “could be damaging to those with respiratory issues,” and falsely accuses Purple of using “made up tests:”: 36 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 37 of 64 The Fifth Post: The Responsibility “Article” 106. The Responsibility “Article” was posted the next day (again, late last week), and it attempts to deflect Defendants’ singular attack on Purple by trying to guilt other reviewers into joining its campaign of false and misleading statements against Purple. 107. A link to the Responsibility Article is or was prominently displayed on the homepage of the HMR website, below the top “Article,” with the headline in all capitals of “BREAKING NEWS” and “INDUSTRY NEWS,” with the tag line “Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety?,” and including a large “X” in a red circle – as if to designate a poisonous substance – as follows: 37 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 38 of 64 108. The top of the Responsibility “Article” also includes, in larger form, the image of the large “X” in the red circle: 38 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 39 of 64 109. These images and language are false and misleading because they suggest to consumers that HMR is a legitimate news source reporting objective “news,” through the use of the prominently displayed headlines “BREAKING NEWS” and “INDUSTRY NEWS,” when HMR is not a news organization. 110. The Responsibility “Article,” like the prior “Articles,” includes a series of inflammatory questions and statements, all of which are designed to convey to consumers the literally false and misleading message that the Purple mattress is unsafe, and that Purple is withholding safety information from consumers. 111. For example, the Responsibility “Article” has statements suggesting that a physician’s Hippocratic Oath is applicable to mattress makers and referencing “poison,” 39 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 40 of 64 falsely suggesting that Purple’s products are not only unsafe, but might poison the customer: 112. The Responsibility “Article” includes a statement that mattress makers have a responsibility to ensure the complete safety of their products, which again falsely suggests that Purple has not comported with its safety obligations and that its products are unsafe: (Emphasis added). 113. The Responsibility “Article” has a bolded, red statement not only falsely suggesting that Purple’s products are not safe, but also that Purple has not provided any evidence of safety (when in fact Purple has posted evidence to support the safety of its products), which also challenges other reviewers to join Defendants’ campaign of wrongfully harming Purple’s reputation with false and misleading statements and innuendos: 40 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 41 of 64 114. The Responsibility “Article” falsely states that consumers purchasing Purple’s products will be “directly inhaling a white powder substance” which “could be damaging to those with respiratory issues,” and falsely referring that Purple was using “made up tests,” suggesting that Purple’s products are not safe and that Purple is withholding safety information from consumers: 115. The Responsibility “Article” closes by providing link to the other false and misleading “Articles” and the Revoked Endorsement “PSA,” compounding and expanding the overall false and misleading messages that Purple’s products are not safe and that Purple is misleading consumers: 41 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 42 of 64 Cumulative Impact and Grouping 116. The overall, cumulative impact of the five separate “Articles,” the numerous inflammatory, false and misleading statements, and the groupings of images and the statements combine to create the overall false and misleading impression that Purple is hiding information and that its products are dangerous, all in an effort to smear Purple’s reputation, products, and goodwill, and to divert sales to Purple’s competitors, including GhostBed. Purple Discovers Monahan’s Affiliation with GhostBed 117. Despite Monahan’s efforts to hide his involvement with GhostBed, upon investigation, Purple discovered that Monahad had (at least in the past) been closely associated with Purple’s competitor, GhostBed. Specifically, Monahan was previously employed GhostBed’s Chief Brand Officer. 118. On October 10, 2016, Monahan formed Honest Reviews, LLC. 119. Upon information and belief, Monahan is sole the owner of HMR, has actively and knowingly caused and supported the statements on the HMR Blog; has directed, authorized and participated in the creation and publishing of the statements; and has been the active and conscious force behind the creation and publishing of the statements. 120. Upon information and belief, GhostBed has actively and knowingly caused and supported the statements on the HMR Blog; has directed, authorized and participated in the creation and publishing of the statements; and has been the active and conscious force behind the creation and publishing of the statements. 42 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 43 of 64 121. At or around the same time he formed Honest Reviews, LLC, it appears that Monahan commenced efforts to reduce or remove evidence of his association with GhostBed from his digital footprint. 122. For example, a cached Google page showed that Monahan was an author on www.ghostbed.com: 43 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 44 of 64 123. Similarly, a cached Google page identifies Monahan as an author on www.ghostbed.com: 44 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 45 of 64 124. However, at least some of these pages are now apparently unavailable, or at least they are not easily discoverable through typical internet searches. Upon information and belief, the information has been intentionally removed and/or made more difficult to locate. 125. Similarly, Monahan’s Twitter profile previously identified him as the Chief Brand Officer of GhostBed: 45 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 46 of 64 126. Upon information and belief, the reference to GhostBed was removed in approximately October 2016, but in any event it no longer appears on Monahan’s Twitter profile: 46 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 47 of 64 127. Similarly, Monahan’s LinkedIn also previously identified him as the “Chief Brand Officer” for GhostBed: 47 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 48 of 64 128. Upon information and belief, the reference to GhostBed was removed in approximately October 2016, but in any event, it has been removed from Monahan’s LinkedIn profile. The GhostBed CEO’s Daughter Has Posted False Reviews of Purple on Amazon.com 129. As Purple just recently discovered, in May of 2016, the daughter of GhostBed’s CEO posted a review on Amazon.com of the Purple® Bed, making false and misleading statements remarkably similar to some of those now appearing on the Blog, 48 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 49 of 64 including purported concerns about the “powder,” a baby, “Johnson and Johnson,” “cancer,” and “safety:” Defendants Are Surreptitiously Working to Promote GhostBed Over Other Mattress Companies 130. Upon information and belief, HMR, Monahan, and/or other entities owned or controlled by Monahan, are working directly with GhostBed to promote GhostBed products over those of other manufactures, and in return GhostBed is compensating HMR, Monahan, and/or other related entities. 131. Upon information and belief, Monahan has continued his association with GhostBed, and is now attacking Purple on the HMR Blog for purposes of benefitting GhostBed and damaging Purple, likely in exchange for some form of financial or other remuneration from GhostBed or related persons or entities. 49 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 50 of 64 132. Upon information and belief, Defendants are acting in concert to hide the fact that GhostBed is behind the campaign of false and misleading information unleashed on Purple. The Blog’s Claims of Neutrality and Independence Are False, Misleading, and Highly Likely to Confuse Consumers 133. The Blog is carefully designed to convey the overall message and impression to consumers that it is independent, unbiased, and unaffiliated with any particular mattress company. 134. Among other things, the numerous “disclaimers” on the Blog are designed to contribute to this overall perception. The Compensation Disclaimers 135. The Blog contains a number of disclaimers to the effect that the Blog, HMR, and Monahan are not compensated by any party for any of the content on the Blog, including the purported mattress reviews and comparisons (the “Compensation Disclaimers”). 136. For example, a statement that, “Our website receives zero affiliate commissions” appears on the footer of every page of the Blog: 137. The “What is Honest Mattress Reviews” page includes the following statement: 50 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 51 of 64 138. The Responsibility “Article” includes additional statements disclaiming any commission or other relationship with mattress companies, and emphasizing integrity: The “Ethics and Free From Influence Disclaimers” 139. The Blog also contains a number of disclaimers to the effect that the Blog, HMR and Monahan are ethical and free from the influence of any mattress manufacturers (the “Ethics and Free From Influence Disclaimers”). 140. Initially, the Compensation Disclaimers are clearly designed to convey the overall message that the Blog, HMR, and Monahan are ethical and free from the influence of mattress manufactures. 141. The Blog includes a number of other statements to this same effect, such as statements on the “Disclaimer” page referencing Monahan’s purported “ethics,” i.e., “my ethics,” a statement that the Blog is “Free from corporate or conglomerates … [that] silence or shape editorial narratives and truths,” that the posts on the Blog “have total editorial independence,” and that “No one has influence on … the posts.” 142. The “What is Honest Mattress Reviews” page similarly includes a number of statements to this effect, such as claims that the Blog is not interested in “influencing a purchase decision to promote a company;” the Blog does not reflect “a few large companies controlling the narrative;” the Blog “allows companies and consumers 51 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 52 of 64 uncensored truth;” the Blog provides “the most accurate data available;” the Blog does “not want just a few giant companies to own the narrative;” and information shared on the Blog must be “accurate and true.” The Blog’s Mattress Rankings Are Not Independent and Unbiased 143. Despite the Blog’s numerous representations of its independence and neutrality, the HMR rankings of mattress manufacturers appearing on the Blog are materially misleading to consumers. 144. For instance, GhostBed is listed as one of the very highest rated mattresses, appearing as the third entry on the list of companies on the “Reviews” tab of the Blog. The only other mattress companies that have received similarly-high rankings are either not actually in the BIB market, or are small players in the BIB market that pose no threat to GhostBed. 145. As noted, GhostBed is ranked third by the Blog, after two mattresses which are not in the BIB market or otherwise competitive with GhostBed. First is a $4,699 mattress from Tempur-Pedic which is not in the BIB segment and is not pricecompetitive. Second is a $1,199 mattress from Nest which, although it is part of the BIB market, is not price-competitive and has not yet even been reviewed on the Blog, yet has nevertheless been ranked as “World-Class:” 52 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 53 of 64 146. Besides GhostBed and Nest, which has not even been reviewed yet, none of the other players in the BIB market are given the “World-Class” rating on the Blog. In fact, the next competitor that poses any threat to GhostBed is Casper, which is ranked far down – 19th – on the list. 147. Purple’s mattress, which is 29th on the list, is the only product that has received a “Poor” rating on the list (purportedly because of the “white powder” issue), which is depicted through the use of the poison-suggesting red X: The Blog and the Disclaimers are False and Misleading 148. The overall impression that the Blog is unbiased and independent is literally false and is significantly likely to mislead or confuse consumers, including for the following reasons: (a) The Blog fails entirely to disclose that Monahan was or remains affiliated with GhostBed, including as a spokesman for the company. 53 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 54 of 64 (b) The Blog fails to disclose that Monahan has served as or has been the Chief Brand Officer of GhostBed. (c) The Blog fails to disclose that Monahan has received, at least in the past, financial compensation from GhostBed. (d) The Blog fails to disclose that, at or about the time that he created HMR and the Blog, Monahan attempted to scrub evidence of his prior affiliation with GhostBed from his digital footprint. (e) The Blog does not disclose that Monahan has continued his association with GhostBed, is promoting GhostBed and attacking Purple on the HMR Blog, and that he is doing so in exchange for some form of financial or other remuneration from GhostBed and/or related persons or entities. Purple Has Been Injured, Irreparably Harmed, and Faces Additional and Continuing Irreparable Harm 149. Since HMR began publishing the “Articles” and the “PSA” on the Blog, a number of customers have demonstrated actual confusion and concern regarding Purple and its mattress and pillow products. 150. For example, consumers have asked questions of Purple that are clearly related to the false and misleading statements on the Blog, making references to Purple’s products being “toxic,” “lawsuits,” “toxic chemicals,” “a cloud of powder” that would be inhaled, the powder being “talc,” and “asthma.” 151. The BIB market is in a period of rapid expansion and growth. 152. Capturing market share during a period of rapid expansion and growth is critical for competitors like Purple. 54 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 55 of 64 153. As noted, although Purple did not deliver its first mattress until January 2016, Purple has become one of the four leading BIB companies, and has experienced exponential and rapid growth. 154. Purple is the fastest growing player in the BIB segment. 155. In one year, Purple nearly caught up to the market leaders in revenue generation, and if its growth continues, it will surpass its competitors. 156. Purple’s very positive goodwill and reputation in the marketplace have been critical to its rapid growth and success, and Purple has worked hard and made substantial expenditures to develop these qualities. 157. Because Purple relies strictly upon an ecommerce platform for selling its bedding products to its customers, its online reputation and goodwill are of critical importance to its success. 158. Defendants’ actions have already harmed and will continue to tarnish Purple’s goodwill and reputation in the marketplace. 159. Defendants’ actions, if successful, threaten to slow Purple’s growth rate, causing the loss of tens or hundreds of millions of dollars in damage to Purple, which will be difficult to calculate. 160. Defendants’ actions threaten to adversely affect Purple’s ability to attract and retain key employees needed to manage its growth. 161. Defendants’ actions threaten to adversely affect the value that potential equity partners place on Purple, making it more difficult and expensive – if not impossible – to raise additional capital. 55 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 56 of 64 CAUSES OF ACTION FIRST CLAIM FOR RELIEF (LANHAM ACT FALSE ADVERTISING – 15 U.S.C. § 1125(a)(1)) 162. Plaintiff incorporates the preceding paragraphs by reference. 163. Defendants, through the Blog and otherwise, are making in commerce numerous false and misleading descriptions and statements of fact regarding Purple and its goods and services. 164. Defendants, through the Blog and otherwise, are engaging in commercial advertising and promotion that materially misrepresent the nature, characteristics and qualities of Purple and its products, and which are designed to promote Purple’s competitors over Purple, including, upon information and belief, by selling advertising to competitors who receive favorable ratings and reviews on the Blog. 165. Upon information and belief, Defendants are making material misrepresentations and misleading descriptions and statements of fact that are confusing or likely to cause confusion, mistake, and deception as to, among other things, Defendants’ affiliation or association with other persons or entities, and as to the sponsorship or approval of Defendants’ services or commercial activities. 166. Upon information and belief, Defendants are engaging in commercial advertising or promotion that misrepresents the nature, characteristics, and qualities of their own services and commercial activities. 167. Many of Defendants’ statements are literally false, both facially and by necessary implication, and highly likely to mislead, deceive, and confuse consumers. 56 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 57 of 64 168. Defendants’ misrepresentations have caused and are highly likely to continue to cause consumer confusion and deceive consumers as to Purple’s goods and services and the nature, characteristics, and qualities of Purple and its products. 169. Purple is suffering and is likely to continue to suffer both lost and diverted sales and harm to its reputation and goodwill, in which it has invested heavily and which it has worked hard to develop over time. 170. Purple has suffered and will continue to suffer irreparable injury and damages as a result of Defendants’ conduct, including harm to its goodwill, reputation, and market position. 171. Monahan, the owner and Editor in Chief of the HMR Blog, is personally liable for Defendants’ violations of the Lanham Act because his is an actual participant in the conduct at issue, including because he creates, directs, and controls all content on the Blog, including all of the material related to Purple. 172. Purple is entitled to recover its damages, Defendants’ profits, the costs of suit, and pre- and post-judgment interest as allowed by law. Because of the willful nature of Defendants’ conduct and exceptional nature of this action, Purple is likewise entitled to enhanced damages and attorney’s fees. SECOND CAUSE OF ACTION (TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS) 173. Plaintiff incorporates the preceding paragraphs by reference. 174. Through the conduct set forth above, Defendants have intentionally interfered with Purple’s existing and prospective economic relations, including without limitation its customers, repeat customers, and potential customers. 57 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 58 of 64 175. Defendants’ intentional interference has been conducted through improper means, including but not limited to making false and misleading representations of fact regarding Purple and its goods and services, and by falsely promoting its own “reviews” of Purple’s products as truthful and legitimate, supported by evidence, sanctioned, and made for purposes of protecting the public, rather than to generate advertising and other income. 176. Purple has been injured and will continue to suffer injury as a result of Defendants’ conduct, including in the form of lost sales, profits diverted to competitors, including GhostBed, and irreparable harm to its goodwill and reputation. 177. As a result, Purple is entitled to damages, costs, attorney’s fees, and pre- and post-judgment interest as allowed by law. 178. Because HMR’s conduct was willful and/or reckless, Purple is entitled to punitive damages in an amount to be determined at trial. THIRD CAUSE OF ACTION (DEFAMATION) 179. Plaintiff incorporates the preceding paragraphs by reference. 180. Defendants have made and continue to make numerous express and implied false, misleading, and material statements about Purple. 181. Defendants’ express and implied statements about Purple are not subject to privilege. 182. Defendants published the statements with negligence, or knowing that the statements were false, with reckless disregard of whether the statements were true or false, or with malice. 58 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 59 of 64 183. As a result of Defendants’ conduct, Purple has been damaged and harmed in an amount to be determined at trial, which damages include, without limitation, damages harm caused to Plaintiff’s property, business, trade, profession, reputation, and goodwill. 184. Purple has also suffered and will continue to suffer irreparable harm, including to its business, goodwill, reputation, and market position, due to Defendants conduct. 185. Defendants’ false statements constitute defamation per se, in that that the statements implicate conduct that is incompatible with the exercise of a lawful business, trade, or profession, such that Purple is entitled to recover general damages without proof of special damages. 186. Purple is entitled to damages, costs, attorney’s fees, and pre- and post- judgment interest as allowed by law. 187. Because Defendants’ conduct was willful and/or reckless, Purple is entitled to punitive damages in an amount to be determined at trial. FOURTH CAUSE OF ACTION (TRADE LIBEL AND INJURIOUS FALSEHOOD) 188. Plaintiff incorporates the preceding paragraphs by reference. 189. Defendants have made and continue to make numerous express and implied material statements about Plaintiff’s goods and services. 190. Defendants’ express and implied statements about Purple’s goods and services are false. 59 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 60 of 64 191. Defendants’ express and implied statements about Plaintiff’s goods and services are not subject to privilege. 192. Defendants’ express and implied statements about Purple’s goods and services were intended to cause financial harm to Purple. 193. Defendants published the statements with negligence, or knowing that the statements were false, with reckless disregard of whether the statements were true or false, or with malice. 194. As a result of Defendants’ conduct, Plaintiff has been damaged and harmed in an amount to be determined at trial, which damages include, without limitation, damages for harm caused to Purple’s property, business, trade, profession, reputation, goodwill, and reputational damage in the BIB industry. 195. Purple has also suffered and will continue to suffer irreparable harm, including to its business, goodwill, reputation, and market position, due to Defendants conduct. 196. Defendants’ false statements constitute trade libel per se, in that that the statements implicate conduct that is incompatible with the exercise of a lawful business, trade, or profession, such that Purple is entitled to recover general damages without proof of special damages. 197. Purple is entitled to damages, costs, attorney’s fees, and pre- and post- judgment interest as allowed by law. 198. Because Defendants’ conduct was willful and/or reckless, Purple is entitled to punitive damages in an amount to be determined at trial. 60 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 61 of 64 FIFTH CAUSE OF ACTION (TEMPORARY RESTRAINING ORDER AND INJUNCTION) 199. Plaintiff incorporates the preceding paragraphs by reference. 200. Defendants have violated Purple’s rights and have otherwise acted in an unlawful manner, as set forth in the preceding causes of action. Purple has a substantial likelihood of prevailing on the merits of these claims. 201. Unless an injunction issues to require Defendants to remove their “Articles” and “PSA,” and to restrain Defendants and their officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them, from publishing any similar information, Purple will suffer irreparable harm, including but not limited to injury to its goodwill, ability to do business, market position, and/or loss of business in an amount difficult or impossible to quantify. 202. An injunction prohibiting the publication of false and misleading statements and descriptions would not be adverse to the public interest. 203. The threatened injury to Purple far outweighs whatever damage an injunction would or could cause to Defendants, who would not be prohibited from engaging in other lawful activities. 204. There is a substantial likelihood that Purple will prevail on the merits of the claims for which injunctive relief is sought, or there are serious issues on the merits which should be the subject of further litigation. 205. Therefore, under Rule 65 of the Federal Rules of Civil Procedure and 15 U.S.C. § 1116(a), Plaintiff is entitled to a temporary restraining order and preliminary injunction that includes, at a minimum, the following relief: 61 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 62 of 64 (a) That Defendants and their officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them, be ordered immediately to discontinue making any and all false and misleading statements with regard to Purple, in any medium or format, including but not limited to removing the “Articles” and “PSA” specifically referenced in this Complaint; (b) That Defendants be required to issue corrective advertising or statements on the Blog and elsewhere to remedy the confusion and deception caused by the false and misleading statements with regard to Purple; (c) That Defendants be required to issue corrective advertising or statements to correct any and all false and misleading statements regarding, and to fully disclose Monahan’s association or former association with GhostBed, and/or HMR’s association, affiliation, or receipt of compensation in any form from competitors of Purple; (d) That Defendants be required to file with the Court and serve upon Purple a report under oath setting forth in detail the manner and form in which Defendants have complied with the injunction; (e) That Defendants and their officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them, be restricted from making false or misleading or confusing posts or discussions on social media or otherwise about the existence of this lawsuit, the Court’s temporary restraining order or other any other orders that may be issued 62 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 63 of 64 by the Court, or Purple’s efforts herein to restrain Defendants from continuing to engage in the conduct at issue, in an attempt to circumvent the purpose of the injunctive relief sought by Purple; and (f) Any additional relief warranted at law or necessary to protect Plaintiff’s rights, to be determined by the facts and circumstances at the time of entry of the order. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the Court enter judgment against Defendants as follows: 1. For a temporary restraining order and preliminary and permanent injunction enjoining Defendants, their officers, agents, servants, employees and attorneys, successors and assigns, and all other persons acting in concert or participation with Defendants, as set forth above; 2. For damages sufficient to compensate Plaintiff for Defendants’ wrongful conduct and infringement, including for Plaintiff’s lost profits, lost sales, Defendants’ sales, and/or for lost license fees and royalties; 3. An award of pre-judgment and post-judgment interest and costs; 4. An award of reasonable attorneys’ fees pursuant to 15 U.S.C. § 1117, 35 U.S.C. § 285, and Utah law; and 5. For such other further relief to which Plaintiff may be entitled in law and in equity. 63 Case 2:17-cv-00138-PMW Document 2 Filed 02/24/17 Page 64 of 64 DEMAND FOR JURY TRIAL Purple demands a trial by jury on all matters herein so triable in accordance with Federal Rule of Civil Procedure 38(b). DATED this 24th day of February, 2017. MAGLEBY CATAXINOS & GREENWOOD /s/ James E. Magleby James E. Magleby Christine T. Greenwood Adam Alba Attorneys for Plaintiff Purple Innovations, LLC 64 Case Document 2?1 Filed 02/24/17 Page 1 of 6 Exhibit 1 Case 2:17-cv-00138-PMW Document 2-1 Filed 02/24/17 Page 2 of 6 https://www.honestmattressreviews.com/purple-mattress-powder/ Case Document 2-1 Filed 02/24/17 Page 3 of 6 I Sham on Twitter 9 in Share on Facebook - . n> at Over 1m ll) 3-Star Revwws it will ?kit?ill 70% Less Than iempur-Pedic norm One fact is certain Goldilocks and the ?Egg Test Video? reached viral status asking a simple question; 'Does your mattress pass the egg test?? A simple narrative with a comical infomercial style four-minute video changed the conversation amongst consumers. But, here at Honest Mattress Reviews we always ask one simple question; 'Does this benefit the consumer?? We have praised Purple?s creative team for their amazing videos. From Goldilocks to Big Foot, Purple has successfully captured the attention of mattress consumers. Having reviewed the mattress and currently reviewing the Purple Seat Cushion, we've anxiously awaited the arrival of the 10 pound Purple Pillow (launched on Kickstarted). We did stumble upon a question while reviewing the mattress layers. Specifically, the top layer that has a powder coating. What is this white powder? Is it safe? Is it safe to touch your skin? Is it safe to inhale? We spent months trying to reach different members of Purple?s team - but to no avail. Honest Rm? . "eOann-e awesome! We share that With our audanoe?. RS. Adam never responded to our email aa~w~w~ l==l @honestmattress They resoond if they are interested in doing business with people, but they may just be busy. Give them some more time. Having seen more interviews, more product review videos, and now the first shipments of Purple Pillows (that all show this powder) we continued to investigate what exactly is this mysterious paiva'er. Paull?wxh?c?i 52% e: I DID SEE Mattress Firm Hires Sicily Dickenson As New CMO DISCOUNTS AND PROMOTIONS Access All Of The Deals - Click Here Case Document 2?1 Filed 02/24/17 Page 4 of 6 The information is not readily accessible in the FAQ section of the website. The product pillow images on the website also do not show the powder on the product. YOUR NEWS OUR AUDIENCE Ready? Click Here To Learn Mom PR Platform PURPLE PILLOW .. I ACTIVE KICKSTARTER PROJECTS ?5 KICKSTARTER or Perso 99 Zghe Creel Since Purple elected not to respond via email or social networks we tried the most direct route to receive an answer by simply calling and asking. ?5 KICKSTARTER SC uht? 0 KICKSTARTER Lin? ,0 THE HYPER-ELASTIC (POLYMER). OR THE PURPLE After multiple calls, we finally received their ?material information documentation". ?5 KICKSTARTER Tc-r-rv PEARCE "The Purple? Bed is made up of three layers. The top is, of course, the hyper-elastic polymer" comfort grid that is soft where you want it and firm where you need it. The proprietary blend of materials used to create the polymer are FDA?approved food-grade or food-contact grade. Purple? is hypoallergenic and non-toxic. For the bottom two layers, we use premium high-density conventional (not memory) foams, which include: - purple piLLow 3.50 inches of 1.8 medium-soft comfort layer Case Document 2-1 Filed 02/24/17 Page 5 of 6 4.00 inches of 2.0 lb."ft3 medium?firm support layer All of our foam is certified by . approved foams are environmentally friendly and safe for users. I invite you to go to is to read about the high standards of certified foams. All of which is. of course. topped with and protected by 2 inches of Purple" so the foam is protected to last even longer. Bylaw. all mattresses sold must pass the national flammability standard. You can read all about that standard at ctr; :e by the 0.5. CPSC. The important thing to know about Purple is that unlike many other manufacturers. we use no cheriniicalI treatments to achieve this standard. Instead we use a special flame barrierfabric with unique non-toxic fibers that naturally slow flames. Both our flame barrier fabric and our glue are Gr. Dur cover is a patent-pending all-white cover that will stand out with its awesome knit design. all while looking chic in any room. The cover fabric content is as follows: Knit Fabric: 29% Viscose. 5??:13 Polyester. 4% Polyester-Lycra. weight ~45g gx?m2. The non-skid bottom panel is made of polyester. Purple proudly manufactures the Purple'? Eied in the 05A. in Alpine. Utah. Final Thought we were relieved to see some documentation regarding the materials used finally. As our focus is consumer interest and consumer safety. it"s crucial we ask the tough questions. In our opinion, Purple is world-class with their marketing. and they are great at product creation. As a consumer. the fact that you're not informed of this powered during the research or purchase phase of the customer journey is wrong. We tested multiple mattress reviewers to come into our office and simulate the purchase process. Then when they had the to opportunity see inside the mattress. the number one question was. ?what is this powder?? We were extremely concerned when we were informed (via telephone call) the power is a Talcum Powered after having watched Johnson 81 Johnson's multiple multi- million dollar baby powder lawsuits found to cause Ovarian Cancer. We've been reassured that Purpl'e does NOT use Talcum Powder. But, they remain under a blanket of secrecy answer that the powder is proprietary so they cannot disclose what exactly it consists of. The FDA approves many substances that they then later ban from the marketplace. Not being able to know what this substance is, leaves us in the dark today and in the future, should Purple or the FDA change their use or approval of said material[s). In a perfect world and in a transparency to consumers. we'd like Purple to better disclose what powder material they are introducing into consumers homes before the customer receives the product. Especially as consumers will spend 1f3 of their lives over the next yea rs with this powder directly touching their skin or even potentially inhaling. Major Key: Marketing Product Quality Disclosing Information F. OKIEKSTARTER FUTCI LAB '2'3l'r' TCIt-l?i' I STAY CONN HONESI Mattress 1.401 ?ies I Like Page Learn More :fvss'i's'Ios 1: 5 VUIHI I LATE ST REVIEWS Amorebede Mattress Review 1' i Nombed Mattress Review . GhostBe-d Mattress Review 6? . insure Case Document 2-1 Filed 02/24/17 Page 6 of 6 NOTE: We w0uld sb?ll LOVE to talk to Alex or any other team members at Purple. Simply emaii and your content will be published, unedited in the format 0 KICKSTARTER FUTD LAB submitted. Your content will then be syndicated via our website and social media channels. Please be aware, to provide complete transparency, everything you submit will be published. Should you provide additional information we would be more than happy to update this article. didt here to shop Purple OKICKSTARTER TONV PEARCE Best eviewed Ma ttress What Do You Think? Share Your Opinion 1 Comment Sort by' 0mm - I STAY CONNECTED A Honest Mattress REVIGWS I 1,401 hes '8 Alinda De La sz ?Miat isthe powder?? Cant someone just have Iested?? -92- . Like Page 0 Loam More Case Document 2?2 Filed 02/24/17 Page 1 of 9 Exhibit 2 Case 2:17-cv-00138-PMW Document 2-2 Filed 02/24/17 Page 2 of 9 https://www.honestmattressreviews.com/purple-mattress-white-powder/ Case Document 2-2 Filed 02/24/17 Page 3 of 9 Just over one week ago we launched an investigative article into the unknown chemical that's found on just about every product Purple mal-zes. We've been assured from Purple that the chemical powder that covers their products is "food grader and ?non-toxic'. E-utr as one of our core beliefs at Honest Reviews revolves around a single question, 'Does this benefit the consumer'? In case you missed it Having seen more interviewsr more product review videosr and now the first shipments of Purple Pillows (that all show this powder) we continued to investigate what exactly is this mysterious powder. The information is not readily accessible in the FAQ section of the website. The product pillow images on the website also do not show the powder on the product. Since Purple elected not to respond via email or social networks we trieoll the most direct route to receive an answer by simply calling and asking. amazun I SEE Mattress Firm Hires Sicily.r Dickenson As New 0M0 THE HYPER ELASTIC (POLYMER). THE PURPLE AU. THE bESl As you can clearly see there is a tremendous amount of powder coating the internal "Hyper- DISCOUNTS AND PROMOTIONS hccus?l Of?ine Denis - Clirji: Here SHARE YOUR NEWS UETH OUR AUDIENCE PURPLE MAETRESQMES IJR Case Document 2?2 Filed 02/24/17 Page 4 of 9 I ACHUE KICKSTARTER PROJECTS (5 KIEKETARTER CELESTIAL TFIIBE - YQHF Persia I the Crecl' CAMBRIDGE SOUND MANAG ?Hans? 9? a) Q: KICKETAHTER :me LAB WEBSITE PURPLE PILLOW SALES PICTURE 33;; at HG TONY PLERCE I STAY CONN - Honest Mattrees Reviews Case Document 2-2 Filed 02/24/17 Page TALKING ABOUT POWDER In last week's article, we asked these four simple questions; 1. What is this white powder? 2. Is it safe? 3. Is it safe to touch your skin? 4. Is it safe to inhale? As for question one Purple's staff, Goldilocks and Big Foot are all tight-Iipped when it comes to what this material is specifically. Just short of saying it's non-toxic and food grade they remain behind a wall of secrecy. Construction Is it safe? Sounds Hire .a si?'y question to ask when talking about a product that's soJ'd tens of thousands of mattresses of?ows. But, after spending some time to investigate what F'urple's materials consist of this is what we found. 1.3 HICKETAHTER FUTD LAB KICKSTARTEH PEA REE I STAY Honest Mattress Reviews 1.401 Sites 0 Loam \icre Amorebeds Mattress Review 1 ii Case Document 2-2 Filed 02/24/17 Page 6 of 9 Let's start with the mattress components; Top Layer The top is the ?hyper-elastic polymer' comfort grid. Understanding the makeup of this layer involves understanding Iwhat's used in this "hyper-elastic polymel". Hyper-Elastic Polymer is a fancy marketing term trademarked by LLC. I.I'Ii'hat does it really mean? "?Plasticized elastomeric gel material sold as an integral component of cushioned products, namely, seat cushions and mattress toppers.? CI-ti. are t: . F..li Plasticized Treat or make with plastic. Elastomeric An elastic substance occurring naturallyr or produced Gel Material A gel is a solid jelly-like material that can have properties ranging from soft and weak to hard and tough. Basic explanation Porple's top layer is produced plastic in a gel consistency. One major key that isn't included or very easin found via Purple's documentation is that they do not utilize new materials to make this plastic layer. Rather, they use recycled manufactured products. Bottom Two Layer Premium high-density conventional [not memory} foams. Many times in the construction of mattress you will see terminology describing the middle and bottom layer as "premium high-densityr foam. This is a well?branded way to describe what is simply 'base foam Its sole purpose is to provide support to the top layers and to distribute your natural body weight. You Iwill find base foam in just about every foam mattress on the market today. High-Density base foams are considerably cheaper than memory foamr gel memory foam or latex materials. Eiase foam is rated based on the density of the foam used. The heavier the mass the great support one would receive. So we can conclude the Purple Mattress' construction includes a top plastic layer in a grid shape with two highoensity foam support layers below. Aside from the plastic being made from recycled products, it seean to check out as safe. But, they are neglecting to disclose one major component a mysterious white powder that coats the entire top grid layer (also used heavily in the Purple Pillow). Purple continues to refuse to disclose the true chemical makeup, thus, predisposing consumers to powder without prior warning. They've told us multiple times it's either approved food?grade" or ?Food?Contact Grade." glar- KICKETARTER rum LAEI I Honest Mattress Reviews 1.11431 lites II Like Page 3e i o" (51"5 I LATEST REVIEWS 0 Loam "or! Amorebeds Mattress Review it: Nwosbed Mattress Review . .U Mattress Flouiow Case Document 2?2 Filed 02/24/17 Page 7 of 9 Initiallyr we were relieved by the security that the FDA approved the use of this substance that Purple refuses to disclose. This relief was short lived once we read the definition of approved'. Determining the Regulatory Status of a Food Ingredient Any substance that is reasonably expected to become a component of food is a food additive that is subject to premal'ket approval by unless the substance is generally recognized as safe (ERAS) among experts qualified by scientific training and experience to evaluate its safety under the conditions of its intended use. Click here to read more. The definition from the FDA is rather straight forward. Any substance that is recognized as safe among experts qualified by scientific training and experience to evaluate its safety under the conditions of its intended use. We draw your attention to those last two key words intended USE. This substance may be approved safe to use in small quantities after having been tested by scientific professionals. That same substance that's intended to be consumed via tablet form in small controlled doses may have very different outcomes regarding the effect on a human body or while inhaled for eight plus hours a night while you sleep. Multiple the hours you sleep, by the number of years you own the Purple mattressr and now we ask is that the same intended use that the FDA initially approved this substance? Does Purple have scientific proof from multl?le third party sources confirming throu comprehensive testing at this substance is safe to lay on an inhale for years? We certainly could not find any tests to support that position. If they (Purple) do, we'd love to publish those results right here for all consumers to see in their entiretyr ensuring they are in complete safety being subjected daily to this substance. While also warning any individuals with pre?existing respiratory health conditions. 0n the contrary, if they do not have scientific proof from multiple credible sources that confirms the use long-term use of this substance with Purple's intended use, {to reduce the sticking of the plastic grids) as safe for long-term contact and inhalation then we feel they are recklessly predisposingl consumers to an untested substance that could directly impact one's short or long-term health. When we asked hyper-specifically this question we found the same answer, ?It's food?grade material'. The second part of their statement "Food?Contact Grade" makes us even more concerned for the overall health and wellbeing of consumers. What are Food-Con tact Grade Materials? KICKSTARTER FU To Em? sol?- KICKETARTER PEARCE I STAY CDNN Honest Mattress Reviews 1.401 sales Like Page 351'151"51'2"f24'f'512512 5 I LATEST REVIEWS 0 Learn More Amorebeds Mattress Review tit? ?meshed Mattress Review it i i Case Document 2-2 Filed 02/24/17 Page 8 of 9 Food contact materials are materials that are intended to be in contact with food. These can be things that are quite obvious like a glassr a can for soft drinksr but also machinery in a food factory or a coffee machine. Food contact materials can be constructed from a variety of materials like plasticsr rubberr paperr coatingsr metal etc. In many cases a combination is used; for example a carton box forjuices can include (from the inside to the outside): plastic layerr aluminiumr paperr printing and top coating. During the contact of the food contact materials with the food, molecules can migrate from the food contact material to the food. Because of this, in many countries regulations are made to ensure food safety. In this instance we know it's safe to touch a plastic mustard container or a glass coke bottle. But, the applications of those food-contact material's are not ground down into a anaJ'J' microscopic powder .and inhaled for eight to ten hours .a night over the course of the ma ttresses lifespan. Powered, even powered sugar or cinnamon can cause irritation of the lung after inhalation. ?Natural" approved" is not always safe. Just because cinnamon is a naturally-occurring spice it's harvested from the dried bark of several Cinnamomum tree species doesn't mean it can't be harmful. Cinnamon is deemed safe for consumption as a food additive under the U.S. Food and Drug Administration's classification of Generally Recognized As Safer or list. But the FDA is siient on spice inhaiation. I Should a person elect to consume a teaspoon of cinnamon based on the knowledge of what this will physically do to one's body, the fault resides on the individual. The ingestion of the (cinnamon) powder invariably stimulates the gag reflex followed by inhalation of the powder that's stuck inside the mouth and throat. The pain then causes rapid exhalation characterized by ?dragon breath" upon blowing the powder out. Over 200 different reported cases by the ULS. Poison controlI this year atone. {5 KICKSTAHTER FUTCI LAEI Win PEARCE I STAY CONN Honest Mattress Reviews 1.461 lites ?Like Page Elet'lef's'. 1C Icet'ls I LATEST REVIEWS 0 Learn Mots Amorebeds Mattress Review tit Nmbed Mattress Review . GhostBe-d Mattress Review .. i If? I . El Case Document 2-2 Filed 02/24/17 Page 9 of 9 Inversely, Purple's prior and current business practices involve deliberately choosing {5 KICKSTAHTEH TD LAEI not to inform consumers of the powders existence in the first place. When pressed by customers with respiratory conditions such as Asthma, Purple remains secure in their position not to disclose the contents that consumers are subjected to. PLAY When you look on Purple's website, their high?resolution product images do not show - the final product they are shipping. We believe this is a deceptive business practice that could potential irritate or even impact they health of tens of thousands of unknowing consumers. irrecon- In a consumer safe perfect world, Purple would willing disclose the substance, include PEARCE it on their law tag and have a warning to consumers before the point of purchase. NOTE: We woul?d stitt LOVE to tail: to Aiex or any other team members atPuer'e. Simpiy emait beiio@bonesmiattressreviewseom and your content wiit be pubiisbed, unedited in the format Submitted. four content writ then be syndicated via our website and social media channeis. Piease be aware, to provide compiete transparency, everything you submit Witt be pubiisbedpuree PILLOW Sboutd you prowde addrbonat information we woutd be more than happy to update this artreie. did: here to ?iop Purple Prado-tie I STAY CONNECTED Case Document 2?3 Filed 02/24/17 Page 1 of 4 Exhibit 3 Case 2:17-cv-00138-PMW Document 2-3 Filed 02/24/17 Page 2 of 4 https://www.honestmattressreviews.com/purples-unknown-powder/ Case Document 2-3 Filed 02/24/17 Page 3 of 4 Our core beliefs at Honest Reviews revolve around one core question, ?Does this benefit the consumer?" As we prior published our concern for an unknown substance Purple continues to coat their products in without consumer warning. Purple's previous and current business practices involve deliberately choosing not to inform customers of the powders existence in the first place. when pressed by customers with respiratory conditions such as Asthma, Purple remains secure in their position not to disclose the contents that consumers are subjected to. We've reached out to Purple on via multiple communications platforms, and yet they continue to ignore the potential seriousness of inhalation of this powder. Reference Articles I A T?ir?uuir" Nausea.- lm (mm In I Who: tam. in Jim! err F'tu/ilnr i'n I A (heaps)? [Irwwirnmr/nn {Ill-I THE HYPER-ELASTIC (POLYMER). OR THE PURPLE We have stated clearly in the past that Purple offers close to, if not, the best comical infomercial style viral videos. They've already done a tremendous Job creating mattress tests to sell consumers on the one track narrative. Competition and commerce drive innovation. But, as some companies become red hot they tend to run fast and figure out problems later. It?s clear the unknown white powder used is there to help the plastic grid walls as they stick together. Mattress Firm Hires Sicily Dickenson As New CMO ALL THE NET DISCOUNTS AND PROMOTIONS Access All OfTheDeals - Here SHARE YOUR NENS Case Document 2?3 Filed 02/24/17 Page 4 of 4 Success and rapid growth is no excuse for subjecting consumers to a powder that could impair or even impact their physical health. HtllIBSt Platform Honest Mattress Reviews does not have any affiliate commission sales relationships with mattress companies. This is by design to ensure that our focus is on the consumer, not direct commissions for ourselves. We believe that long-term integrity:r is I ACTIVE KICKSTAETER PROJECTS more valuable tha short?term moneta ry gain. (5 KICKSTARTEH CELESTIPIL With that, we regret to inform you that until Purple Mattress discloses to consumers Y?gr Parser-?1 that they will be subjected to and directly inhaling a white powder substance that Emmi? could be damaging to those with respiratory issues we're going to revoke our - endorsement of this mattress. We value consumer knowledge and safety far greater to our organization that tunn',r videos and made up tests. Once Purple publishes supporting documentation for consumers about the safety of this substance used in the context in which they use it, we will reinstate our recommendation. As a consumer, you have the right and responsibility to research 0 SOUND your mattress before you complete your purchase. We're not saying that you should . I i not buy a Purple Mattress. What we are clearly saying is that until consumers are r/ properly informed of this substance we are revolting our recommendation. a PLAY NOTE: We would still LOVE to talk to Alex or any other team members at Purple. Eimply email and your content will be published, unedited in the format 0 submitted. Your content will bl?len be syndicated via our website and social media channels. Please be aware, to provide complete transparency, everything you submit will be published. Should you provide additional information we would be more bl?Jan happy to updam this article. QKICKSTARTER FU To LAEI Case Document 2-4 Filed 02/24/17 Page 1 of 12 Exhibit 4 Case 2:17-cv-00138-PMW Document 2-4 Filed 02/24/17 Page 2 of 12 https://www.honestmattressreviews.com/purples-acknowledgement-white-powder/ Case Document 2-4 Filed 02/24/17 Page 3 of 12 In the introduction of their public response for the first timer they start by touting rapid growth and success (see here}. Ii'u'e've been a huge fan of Purple's innovative and disruptive marketing approach. We also backed and supported their record Kicl-cstarter campaign. Need proof? Lool-t at all of these posts. Honest Reviews Coverage Df Purple If this Powder is completely brand new to you here are some reference articles What Exazrtiy is Thar White Pom-o'er u?fatrm-?ssj I A De?ner int-.1 F?Uroic' Natrr-c-ss Wl-rte Pan-?der- PEA - Lin-e Tr.? Ptu'pie Pam-{fer We're t'mr Endorsement 1When a company, regardless of size, elects to sell consumer products they wil ingly enter into a social responsibility commitment with their customers. Th us, every business inna tei'y inherits the highest here! of accoun regarding cons umer safety. Although we completely disagree with your secretive approach to consumer safetyr hiding behind ?propriety powder.?r we do directly pose this question to you is stopping you {Purple} from conducting and releasing independent accredited laboratory tests that prove this is safe under the use case of coating Purple mattresses and pillows? Thusr protecting your secret ?Plastic? while simultaneously ensuring consumer safety. 1 is stopping you?Purple) from conducting and releasing independent accredite laboratory tests that prove this is safe under the use case of coating Purple mattresses and pillows? In your published statement to the publicr although comically writtenr clearly shows your position remains that consumer safety should reiy soieiy on your written word. as e; i Everything we do here at Dc?ple or our customers. We want everyoce's life to be mace better by Tits one-oi-a-km? tec'icology. We encotnage a healthy and happy Iltoswu: torough our procucts. Sammy 5a-.d_ we churcatey wan: you feel better and we believe Pc'ple ca" help I Lu? SEE Yr-lsti? Mattress Firm Hires Sicily Dickenson As New CMD ALL THE EEST ANDPROMOUDNS Of'i?he Denis - ClickHere Case Document 2-4 Filed 02/24/17 Page 4 of 12 lttk159d1f' 'f Id 't;l t? he if?re're 35105:: $333: gird? ease orgwe OUR AUDIENCE Your track record continues to show a reactiye transparency approach. You only began to I Tom". acknowledge custorr-ers if they contact you {in regards to the powder}. To dater you still do not mt include this ation directly on your product page (see screenshot below). You clailnI ?Everything we do here at Purple centers on our customers" when will 1you be ll ACTIVE KICKSTARTER PROJECTS honest and upfront about the use of this in a microscopic powder form that could he inhaled? Don't customers have a right to be informed? We have arc shipping pactaqmq?taat giant :hat was becoc?t' sy?ocy'wos wit? comfort "om-ever cue to Folio-'0 of CILJ we kr?ew witt?oc: some so". of Litre-light coating :woc-o stirs to .tsc;f o"ce rec-r re presso'u of the rolrg T'tis is where our "octet-L plast; coc?cs We now coat our Doraei: 'nott-ess ard Pat go tmooga e. :Ig'nt :thitt?feta rim-51:11 tr.) fr: The 'emoes tunic. it?! Polyrce?? ?rto'r SELCEHFQ to .tset V5. - ass-wry 0 WHERE DO YOU CLEARLY EXPLAIN THE USE or -. 0 51M CONNECTED Case Document 2-4 Filed 02/24/17 Page 5 of 12 We understand that when a product experiences an unforeseen problem that adjustments might in?rm. have to he made. Consumers understand andI also seek a solution. {5 KICKSTARTEH FUTD LAE Here's where the issue arises. Since you're not willing to educate and pro-disclose (at the point of sale}; - PLAY a} the existence h) what it is or {root-71y Ell that's it'5 53f? QHICKSTAHTEH How do we, the consumer know what you're coating all oyer your products today are the same as what you coated products in last week, last month or during your ?product solution testing?" Consumers are not guinea pigs. It's the responsibility of the company to conduct all of these product safety tests before shipping product and clearly disclosing the results to inquiring purple PILLOW. consumers. Science is rooted in truth and proven fact. I 5an CONNECTED For a company that claims to he Super Sc1encey, you continue to neglect a few:r very Honest l'u'l?tt?ESS scientific components (such as material disclosure)r that you clearly don 't see as 1,401 ?es important per your comical response. Purple: 30 Sciencey it?ll Put You To Sleep - VouTube 1' Lea? ?m - comrwaich1v=qCuP?fmqu Fer-"1 :71'3 Cir-"1 J) 9-1: i-?il' Ele 1-19 I of It; trends 1-: 1" a See Jusl how Purpla') hyper-Plague polymer will gone you the,l hem mains sleep you - mm Mines You also seek sympathy In protecting EIZIIZI jobs and In your trade secrets Iwhich proyides you I LATEST REVIEWS some form of shielding from disclosure. Our suentists don't Just solve the problem. they found a sale option in doing so and have applied tor a patent. Ll'lt; the patent is issued, Purple I5 keeping the exact type of pLastic a ?trade seUet' which helps arotect the ijE of those 600 people from competitors I.yho wowo love to ?gure Out now to do mar Purple does. But know that it as a very common type of Dl?SllC used in many human-touch products. even in products for children. Amorebeds Mattress Review i i i it But, your processes is pa ten ted and protected. If it wasn 't already protected in telliBED wouldn 't have to have this disclosure on the footer of their website. After all, they use N?mhed Review the same technology or process, right? It says it's licensed to a company owned by it 11? Ton Pierce. Case Document 2-4 Filed 02/24/17 Page 6 of 12 intelliE-ED's Footer, IS A REGISTERED TRADEMARK DF EDIZDN E, LLI: or ALPINE, UTAH USA. PRDTEETED 02 U.S. PATENTS 5,249,111, 6,026,522, 6,413,450, 2,060,213, 2,026,022, 2,666,341. INTELLIBEDIEI IS A REGISTERED TRADEMARK DF ADVANCED COMFORT INC. DF SALT LAKE CITY, UTAH Purple-'5 Footerr ?Protected by one or more of U.5. Patents 5,?49,111; 6,026,523"; 2,026,022; 2,230,566; 2,023,233; 2,022,636; 2,964,664; 0,602,302, and 9,051,169, with others pending. Purple and all product names comprising Purple, Hyper?Elastic Polymer, and No Pressure are trademarks of LLC of Alpine, Utah .i-nkb'ulh. "Lin 1: LI. (win-I1 I aunts-.4- . - ua'in 'vllr.? u, 1. Purple's publication is proof of how naive theyr truly believe American Consumers are. To say, it's safe because it comes from the same family of plastic forks, neglecting the fact that in Fur le's use case (coating mattresses and pillows} it could be inhaled irectly into your lungs, is downright insulting. ?It is a food-contact-grade material. meaning that this family of plastic materials can be used for eating utensils, children?s toys, etc. You can think of it being as safe as eating with a plastic fork, so you can rest easy on our bed! In fact, it may be even safer?no Purple product ever Qt KICKSTARTER =0 20. LA0 ?3 KICHSTARTEH FII EA Ft CE I CONN Mattress 1.11431 ?ies II Lilia Page 0 Learn mm Idli?i??v I LATEST REVIEWS Amara-beds Mattress Review it it! Nouns bed Mattress Review i i i i 12': GhostBE-d Mattress Review Case Document 2-4 Filed 02/24/17 Page 7 of 12 stabbed anyone in the lip!" - PURPLE INTENDED TOOD CONTACT GRADE USEAGE USE NUMBER I la RCE STORES TODD KETCHUP Honest Reviews ?es II Uke Page fut INTENDED TOOD comm GRADE USEAGE ?mm USE CASE NUMBER 2 I TNGEST EGGS EDA APPROVED T0 STORE KETEHUP - NOT TO INHALE THE BOTTLE SAFE USE Amcrebeds Mattress Review 4 Hm APPROVED to USE WITH mun NOT to INHALE THE roan coma GRADE USEAGE -. Case Document 2-4 Filed 02/24/17 Page Donn KNUH {5 ICKSTARTE TONY EARC I STAY CEINN Honest ii'lattress Reviews 1,401 ?llies Like Page a Leam Mme 1c 5 I LATEST REVIEWS Amorebeds Mattress Review Mamba-d Mattress Rewiew i i i UNITED THE ENHHE HUGH Case Document 2-4 Filed 02/24/17 Page 9 of 12 PURPLE HAS TAKEN THE POSITION THAT COVERING THEIR MATTRESS AND PILLOH IN THIS PLASTIC POHDER INHALED NIEIITLY EOR THE DURATION Of THEIR LITECTCLE IS THE EOUIHALENT OT EATING 'iillTH A PLASTIC FORK. YES, SAFE TO EAT HITII A PLASTIC TORII. PURPLE CONSUMERS EATING IN DED - THEIR INHALINO THE MATTRESS. PLEASE DISCLOSE THE SCIENTIFIC PROOF THAT INHALING THAT PLASTIC WILL NOT INDUCE LUNG OR RESPIRATORY IRRITATION. ONCE DIE RECEIVE THIS PROOF ?lle HILL UPDATE OUR REUIEN IMMEDIATELY. ADDITIONALLT. PLEASE SHARE ACCREDITED THIRD PARTY STUDIES THAT SHOSI SCIENTIFIC EVIDENCE SUPPORTING YOUR POSITION IN A TEST HITH EIGHT HOURS USE PER NIGHT. ONCE RECEIVE THIS PROOF TIE HILL UPDATE OllR IMMEDIATELY. Your blanket statement quoted aboye is like saying ?Gas is safe in a car, so inhaling gasoline must also be safe." Obviouslyr you're not using gasoline but it's an example that a different use cases a product, chemical or substance can haye yery different effects. Intended Use is the issue at hand. Merely acknowledging existence {only after constant questioning) is not putting consumer safety first in our opinion. Which is a direct contradiction of your published response (again, see here). Everytting we do hers.1 at purple cents-rs or- our customErs. We went everyor-e's lilo to be made better By this orie-of--a-'rund tenor-elegy We escourege r1 healtr?y arid taupy tnrough our prGCuL?rE. Smoly said. we u.ti'nate.y want you feel better and we believe Purple car help (5 KICKSTARTER LAB My: KICKETARTER TGHV RCE - purple moon: I STAY CDNN Honest Mattress Reviews 1.401 Iii-es Lille Page 0 Learn More dn?i'?e I ST REVIEWS Am-orebeds Mattress Review ii LE. shed Mattress Review GhostBed Mattress Review i i- 15' Case Document 2-4 Filed 02/24/17 Page 10 of 12 In our humble opinion, your response is a meek attempt to provide a comical answer in hopes customers will stop the flow of powder inquiries. 5. You can think of it Doing as safe as eating with a plastic for?nt, so you can rest easy on our bed! In [act it may be even safer?no Purple product ever stabbed anyone in the lip'. With the utmost respect, we ask, when will you release your due dih'gence ensuring the product we consumers are buying J's safe to inhale? You did raise one point in your response that we did not initially think to question. Your EDD employees who are in direct contact with this substance don't appear to have protected masks to shield their inhalation. If a factory worker's shift is eight hours, then sleeps eight hours on a Purple mattress; what are the effects of 16 hours a day exposure? Do you provide training and education to your employees who are on the floor manufacturing these products? Do you provide gloves and mask to everyr employee? Fr: 03:! l'y' 0 KICKSTARTER FUTO LAB c; v: .2 ?y KICKSTARTEH TONY PEAR CE airy: I STJW CDNN EUED Honest Mattress Reviews 1,401 II Like Page 0 Learn More Eet'let's'. otyoyf'e?rds Mii'?v I LATEST REVIEWS Amorebeds Mattress Review i it? News bed Mattress Review GhostBed Mattress Review Case Document 2-4 Filed 02/24/17 Page 11 of 12 KICKETAHTER rum LAB TONY PEARCE I STAY CONN Honest Mattress Reviews 1 31-31 times II LIiit.l Page 0 Learn Hare I LATE 5T REVIEWS Amrebeds Mattress Review it I'u'l attress Review GhostBed Mattress Review itii? Case Document 2-4 Filed 02/24/17 Page 12 of 12 (Q KICK STARTER Honest Mattress Reviews does not have any affiliate commission sales relationships with mattress companies. This is by design to ensure that our focus is on the consumer, not direct commissions for ourselves. We believe that long-term integrity is more valuable than short?term monetary gain. With that, we regret to inform you that untii' Purpie Mattress discioses to consumers that they wi?' be subjected to and directly inhaiing a white powder substance that couid be damaging to those with respiratory issues we're going to revoke our endorsement of this mattress. We value consumer knowledge and safety far greater to our organization that funny I.rideos and made up tests. Once Purple pubiishes supporting documentation for consumers about the safety of this substance used in the context in which they use it, we wii'i reinstate our recommendation. As a consumer, you have the right and to research your mattress before you compiete your purchase. We're not saying that you shoui'd not buy a Purple Mattress. What we are cieariy saying is that untii consumers are properiy informed of this substance we are revoking our recommendation. . NOTE: We would still LOVE to talk to Alex or any other team members at Purple. Simply email I STAYCONNECTED and your content will be published, unedited in the format submitted. Your content will then be syndicated our website and social media channels. Honest Mattress Please be aware. to proyide complete transparency. everything you submit will be published. 1.1101 ?"95 Should you provide additional information we would be more than happy to update this article. Case Document 2-5 Filed 02/24/17 Page 1 of 6 Exhibit 5 Case 2:17-cv-00138-PMW Document 2-5 Filed 02/24/17 Page 2 of 6 https://www.honestmattressreviews.com/mattress-reviewers/ Case Document 2-5 Filed 02/24/17 Page 3 of 6 A doctor is required to take the Hippocratic Dath before officiaiiy becoming a doctor. Reviewers possess a unique, infiuentiai power that if misused couid unintentionally for intentionaiiy) steer a consumer into the wrong decision. In this oath doctors truly commit to the mindset, ?First do no harm." Followed by humilityr will not be ashamed to say know not." Finallyr orally con?rmingr ?Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a cotlrse.?r Nowr it's true the responsibility of a physician is far greater than that of a reviewer. But as more consumers turn to the internet for honestr unbiased opinions the importance of a Reviewer Integrity Dath should now be the leading emerging topic amongst reviewers. taken it upon ourselves to draft the first version of a Reviewer Integrity Dath. We wiin' pubiish this seeking the input olr other top reviewers as this m'l'l' be a cel'l'aboratr've el?l?ortto create a Fair, trut?hl?ui and sincere review genera? guidei'ines. Do Mattress Reviewers Have A To Ackno wiedge Consumer Safety? We certainly believe so! About the Mattress Review Space, we at Honest Mattress Reviews believe truly there is a mattress for everyone. So it's not about which is the best-rated mattress on the in ternet. 1 Rather, our mission at Honest Mattress Reviews is to help you identify on an individual basis which mattress will best suit your needs and exceed your personal comfort expectations. In recent days we've published research information regarding Purple's use of ?Plastic? powder. Reviewers behavior and actions stand as the precedent for consumer interests moving forward. We have along history of publishing a lot of content about Purple and their amazing videos and we truly look forward to publishing documentation that addresses consumer concerns so we can again promote the Purple Mattress. .55 more companies enter the direct to consumer mattress space its the responsibility of each individual company to ensure the products they ship are completely safe. I We also believe it's the responsibility of mattress reviewers to question. research, conduct tests, and ultimately advise your audience based on the best available knowledge. As each of these mattress reviewers has iongstanding within this industry as subject matter experts we pose this question to the industry's top reviewers. What is your position on Purple's use of a plastic powder without any clear and concise evidence this is safe under these conditions? Mattress Firm Hires Sicily Dickenson As New CMD til THE BEST DISCOUNTS ANDPROMOUUNS Access All Dents - Click Here SHARE YOUR NENS OUR AUDIENCE Case Document 2-5 Filed 02/24/17 Page 4 of 6 Mattress Insiders Copyright Mattress Insiders . Van/ass Ins dc's We are acme look n9 "?Is ussw as we? 50 13' we a Wave not been 912?! a ey a?swecveva' 'ewew 1 The Sleep Sherpa Copyright The Sleep Sherpa Honest PR Platform I ACTIVE KICKSTARTER PROJECTS ?5 KICKSTARTER PLAY ?5 KICKSTARTER I STAY CONNECTED Honest Mattress Reviews 1,401 Res Case Document 2?5 Filed 02/24/17 Page 5 of 6 KICKSTARTER Futo LAB T0 MKNOHLEDGE CONSUHEILSAFETY Honest Reviews I Him, 1 @jhcnestmamess 0 KICKSTARTER TONY PEARCE Do Mattress Revrewers Have A Responsibllity To Acknowledge Consumer Safety? @tr?esteepsheroa What Are Your Thoughts 11-53 :111? 1-3 Feb :31? ?3 purpie pnuow Firm-r Sleepopolis I STAY CONNECTED Honest Mattress ReVIews 1.401 ates II Like Page . Lum Mort Se c? ya; I LATEST REVIEWS Amorebeds Mattress Review Copyright Sleepopolis .. Novosbed Mattress Review Honest Reviews i - Do Mattress Reviewers Have A Responsmnity To Acknowledge Consumer Safety? WhatAre Your Thoughts Ghosts?, Mame? Review nonestmanressre-wevas 3 41:. 11.. .111 1. . ?4 Case Document 2-5 Filed 02/24/17 Page 6 of 6 Do Mattress Reviewers Have A We also believe it's the responsbility of metres: reviewers to question. research. conduct tests, and ultimateiv advuse audiences based on murmurs an ?isms: .uxmnu (mu ?t1. Update yesterday we published to Purple, ?With the utmost respect, we ask, when will you release your completed due diligence ensuring the product we consumers are buying is safe to inhale? As of this publication, they have yet to respond to us at all. We will keep you posted if we hear an answer to this inquiry. Honest Mattress Reviews does not have any affiliate commission sales relationships with mattress companies. This is by design to ensure that our focus is on the consumer, not direct commissions for ourselves. We believe that long-term integrity is more valuable than short-term monetary gain. With that, we regret to inform you that until Purple Mattress discloses to consumers that they will be subjected to and directly inhaling a white powder substance that could be damaging to those with respiratory issues we?re going to revoke our endorsement of this mattress. We value consumer knowledge and safety far greater to our organization that funny videos and made up tests. Once Purple publishes supporting documentation for consumers about the safety of this substance used in the context in which they use it, we will reinstate our recommendation. As a consumer, you have the right and responsibility to research your mattress before you complete your purchase. We?re not saying that you should not buy a Purple Mattress. What we are clearly saying is that until consumers are properly informed of this substance we are revoking our recommendation. If this Powder is completely brand new to you here are some reference articles What Exactly Is That White Powder Purple 5 Mattress? A Deeper Investigation Into Purple Mattress 8: Pillciws White Powder I - Due To Purple's Unknown Powder We re Revokirnj Our Endorsement Purples Acknowledgement Of The White Powder 5 TIM Misleads Consumers NOTE: We would still LOVE to talk to Alex or any other team members at Purple. Simply email and your content will be published, unedited in the format submitted. Your content will then be syndicated via our website and social media channels. Please be aware, to provide complete transparency, everything you submit will be published. Should you provide additional information we would be more than happy to update this article. an; 0 KICKSTARTER rum LAB ?3 KICKSTARTER TONY PEARCE I STAY CONNECTED Honest Mattress Revrews 1,4Cl Like Page 3-3- yz.? "eras I LATEST REVIEWS 0 Loam More Amorebeds Mattress Review *itt? Novosbed Mattress Review GhostBed Mattress Review i it i) Case Case2:17-cv-00138-PMW 2:17-cv-00138-PMW Document Document2-6 1 Filed Filed02/24/17 02/24/17 Page Page11ofof11 CIVIL COVER SHEET JS 44 (Rev, 08/J 6) The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service ofpleadin&s or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conforence of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. !SEE !NSTRUCTlONS ON NEXT PAGE OF THIS FORM) I. (a) DEFENDANTS PLAINTIFFS HONEST REVIEWS, LLC, a Florida Corporation, RYAN MONAHAN, an individual, and GHOSTBED, INC., a Delaware corporation PURPLE INNOVATIONS, LLC, A Delaware limited liability company, (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT JN U.S. PLAINTIFF CASES) (IN US PLAINTIFF CASES ONLY) NOTE: ( C) Attorneys (Firm Name, Address, and Telephone Number) James E. Magleby, Christine T. Greenwood, Adam Alba Magleby Cataxinos & Greenwood, 170 South Main Street Suite 1100, Salt Lake City, Utah 84101; 801.359.9000 Attorneys (If Known) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an II. BASIS OF JURISDICTION (Place an ''X" in One Box Only) ::J I 0 3 U.S. Government Plaintiff 0 2 ~ 4 U.S. Government Defendant lN LAND CONDEIMNATION CASES, USE THE LOCA TJON OF THE TRACT OF LAND INVOLVED. Federal Question (U.S. Government Not a Party) (For Diversity Cases Only) PTF Citizen of This State ;:l>I( I Diversity Citizen of Another State DEF 0 IV. NATURE OF ~ 2 0 2 ::J 110 Insurance 120 Marine 130 Miller Act ::J 310 Airplane 0 3 I 5 Airplane Product 0 5 0 5 Foreign Nation 0 6 0 6 0 365 Personal Injury - 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulled Student Loans (facludes Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liabillty 196 Franchise 2 I 0 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment ~:J 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property CJ 440 Other Civil Rights 0 441 Voting 0 442 Employment 0 443 Housing/ Habeas Corpus: n 830 Patent 0 840 Trademark 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act Accommodations 0 0 445 Amer, w/Disabihties - :0 0 Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement 400 State Reapportionment 410 Antitrust p 0 820 Copyrights 0 463 Alien Detainee .0 510 Motions to Vacate Employment 0 446 Amer. w/Disabilities - CJ 0 Other 0 448 Education 0 V. ORIGIN 3 Incorporated and Principal Place of Business In Another State SUIT(Placean "X"inOneBoxOnlyJ Product Liability Liability 0 367 Health Carel ::J 320 Assault, Libel & Pharmaceutical Slander Personal Injury n :J 330 Federal Employers' Product Liability Liability 0 0 368 Asbestos Personal 0 340 Marine Injury Product 0 345 Marine Product Liability Liability 0 PERSONAL PROPERTY 0 0 350 Motor Vehicle 0 370 Other Fraud n 355 Motor Vehicle 0 371 Truth in Lending ::J '1 Product Liability n 380 Other Pecsonal Cl 0 0 360 Other Personal Property Damage 0 Injury CJ 385 Property Damage 0 0 0 362 Personal Injury Product Liability Medical Mal actice '.J ._,....,.....,•;:RE;:.~A":!L-.PR:: ... ~0::::: .. =.·J!:~Rl:TY'='·.=•·..-•...,.......,....,....,.,£:;:.;:ML;,:;· ··::.·-..JU:::·~G;o:HTS~• .·.~_,.,.....,T"'l======m:::=-10 .n I (Indicate Ctlizenship of Parties in !lem rI!j Citizen or Subject of a Forei n Coun Cl 0 0 0 0 "X" in One Box for Plaintiff and One Box for Defendant) PTF DEF Incorporated or Principal Place ::J 4 0 4 of Business In This State 0 861 HIA ( 1395ff) :0 862 Black Lung (923) :J 863 DIWC/DJWW (405(g)) 0 864 SSID Title XVI 0 865 RSI (405(g)) ::J :J n C!l O t:'!'°:'l:F;;E=mmr~L,;:T:r::AX-:·~s~u::1a=: :r-"1 0 870 Taxes (U.S. Plaintiff or Defendant) 0 87 J IRS··~Third Party 26 USC 7609 IM 0 Cl 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securittcs/Commodities/ Exchange 890 Other Statutory Actions 89 I Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act '1 896 Arbitration 0 899 Administrative Procedure Act/Review or Appeal of Agency Decision Cl 950 Constitutionality of State Statutes 0 462 Naturalization Application 0 465 Other Immigration Actions (P/acean"X"inOneBoxOnly) i:i( l Original 0 2 Removed from Proceeding 0 3 State Court Remanded from Appellate Court 0 4 Reinstated or Reopened 0 5 Transferred from Another District (s ecify) 0 6 Multidistrict Litigation Transfer 0 8 Multidistrict Litigation Direct File Cite the U, S, Civil Statute under which you are filing (Do not cite juri.•dictional statures unless diversity): VI. CA USE OF ACTION Section 43 a) of the Lanham Act and Utah common law t-B-'-r-'-ie-'-f-'-de..;.s..;.cn...;'p..;.t.1.io"'n'-0.;...f_ca...;u...;se_:...;....;._..;._._.;._.;.....;.;.....;...;__;;..;__..;___- ' - - - - - - - - - - - - - - - - - - - - - - - - VII. REQUESTED IN 0 COMPLAINT: VIII. RELATED CASE(S) IF ANY D,\TE CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv,P. CHECK YES only if demanded in complaint: JURY DEMAND: M Yes 0 No (See instructions): JUDGE DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD Isl Christine T. Greenwood 02/24/2017 FOR OFFICE USE ONLY RECEIPT# DEMANDS AMOUNT APPL YING IFP Case: 2:17-cv-00138 Assigned To : Warner, Paul M. Assign. Date: 2124/2017 Description: Purple Innovations v. Honest Reviews et al