Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 1 of 80 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 Purple Innovations, LLC IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION PURPLE INNOVATIONS, LLC, A Delaware limited liability company, MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiff, v. HONEST REVIEWS, LLC, a Florida Corporation, RYAN MONAHAN, an individual, and GHOSTBED, a Delaware corporation, Defendants. Case No.: 2:17-cv-00138-PMW Magistrate Judge Paul M. Warner Under Rule 65(b) of the Federal Rules of Civil Procedure, Plaintiff Purple Innovations, LLC (“Purple”), by and through its counsel MAGLEBY CATAXINOS & GREENWOOD, respectfully moves the Court for entry of a temporary restraining order against Defendants Honest Reviews, LLC, dba as or through www.honestmattressreviews.com, Ryan Monahan, and GhostBed, Inc. (collectively, “Defendants”). Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 2 of 80 INTRODUCTION Purple has recently become the target of a concerted, widespread, and public online smear campaign, which threatens to go viral if it has not already, falsely accusing Purple’s products of being unsafe and dangerous to the public,1 attacking Purple’s stellar reputation and goodwill, and attempting to displace its prominent position in the rapidly-expanding “bed-in-a-box” (“BIB”) market. These statements are both literally false, false by necessary implication, and likely to mislead and confuse consumers, taken separately or in the context of the overall message and the dozens of statements. These statements include (i) accusing Purple of “administer[ing] a poison,” “deceitful business practice[s],” “recklessly predisposing consumers to an untested substance,” using its customers as “guinea pigs,” and putting its employees’ health at risk; (ii) using inflammatory language in connection with Purple’s products, such as “ovarian cancer,” “made up tests,” “impact the[] health of tens of thousands of unknowing consumer[s],” “damaging to those with respiratory issues,” “short or long-term health,” “dragon breath,” “U.S. poison control, “lung and respiratory irritation,” and “inhaling gasoline; and (iii) analogizing Purple’s products to “Johnson & Johnson’s multiple multi-million dollar baby powder lawsuits.” These false and misleading statements are often bolded or otherwise 1 Purple is not a fly-by-night company. Its founders are engineers with experience in advanced aerospace materials, manufacturing, design, and project management. They have over 30 patents in cushioning technology, and they have designed and sold products in the medical-device industry, including cushioning for wheelchairs and used by licensees for critical care medical beds and knee and ankle braces. ii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 3 of 80 emphasized, so as to present them in the most alarming manner possible, including by attaching a large red circle with a big letter “X” in the center. The problem is compounded because Defendants are misleading the public into believing that they are independent and unbiased reviewers of mattress products, when in fact they are not. While the publishers of these false, misleading, and defamatory statements purport to be independent and unbiased, unaffiliated with any of Purple’s competitors, the drivers of the campaign are Ryan Monahan (“Monahan”), a former officer of Purple’s primary competitor, Defendant GhostBed, Inc. (“GhostBed”); Monahan’s newly-formed company, Defendant Honest Reviews, LLC (“HMR”), which owns and operates the affiliated website or blog www.honestmattressreviews.com (the “Blog”); and GhostBed. The evidence shows that GhostBed has surreptitiously conspired with Monahan and HMR to pursue the campaign against Purple. Until at least October 2016, Monahan was employed as GhostBed’s Chief Brand Officer. However, at about the same time he founded HMR and launched the Blog, Monahan took steps to remove from his online profile any references to his past affiliation with GhostBed. Specifically, while various websites, including Monahan’s Twitter profile, previously identified Monahan as having been affiliated with GhostBed, evidence of that affiliation is now curiously absent, or at least much more difficult to find. Moreover, Purple recently learned that the daughter of GhostBed’s CEO had previously made posts about Purple on Amazon.com, under a fake name, and – just as Defendants are now doing on the Blog – analogizing Purple’s products to those that cause “cancer,” like Johnson & Johnson baby powder. It is clear that the purpose of the iii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 4 of 80 campaign is to disparage Purple to the benefit of GhostBed, including by giving extremely negative reviews to Purple and extremely positive reviews to GhostBed on the Blog, such that GhostBed can unfairly disadvantage its chief, up-and-coming competitor. GhostBed has incentive to pursue this smear strategy. While GhostBed has been a leader in the BIB market for some time, Purple’s success and rapid growth have made it a strong new entrant. Since shipping its first mattress in 2016, Purple has become one of the top four players in the quickly-growing market. In accordance with this tactic, beginning in January 2017, HMR and Monahan have published five separate and lengthy posts or “articles” regarding Purple on the Blog, each of which is also readily available through basic internet searches and on various social media platforms, including Facebook and Twitter. These “articles,” which are specifically designed to appear as “official” news items, bearing taglines such as “BREAKING NEWS,” all contain demonstrably false and misleading statements to the effect that Purple’s products are unsafe and dangerous to the public. In addition, the “articles” falsely and misleadingly attack Purple as being untruthful, evasive, and seeking to hide pertinent safety information from its customers. The statements on the Blog are false and misleading in yet another respect. Through a series of “Disclaimers,” HMR and Monahan assert that the reviews and product comparisons they conduct and post on the Blog are fully independent and unbiased. Among other things, they claim that they are not affiliated with any mattress company appearing on the Blog, including those who purchase advertising on the Blog, iv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 5 of 80 and that they receive no monetary compensation from any mattress company. Given the affiliation with GhostBed, however, these statements appear to be false. If GhostBed or any other mattress company is receiving favorable reviews in exchange for monetary or other benefits, including by virtue of a mattress company’s purchase of advertising on the Blog, then the statements regarding HMR’s and Monahan’s “neutrality” are untrue and, at a minimum, materially misleading to the public. Purple is entitled to a temporary restraining order to enjoin Defendants’ improper conduct, and each of the requirements for obtaining such relief is clearly satisfied in this case. First, Defendants’ false and misleading statements have already caused and will continue to cause irreparable injury to Purple, including to its goodwill, reputation, and market position. In fact, numerous consumers have already reported being confused and made inquiries questioning the safety Purple’s products and the integrity of the company.2 Second, the requested temporary injunction will serve the public interest by ceasing the publication of false and misleading consumer information, encouraging the publication of truthful consumer information, protecting Purple’s goodwill, and promoting honest and fair competition. Third, the balance of harms weighs strongly in favor of issuing a temporary restraining order. While Purple faces the prospect of substantial and continuing irreparable harm, the requested temporary restraining order would restrain Defendants only from doing what they should not be doing in the first place; namely, creating and widely disseminating false and misleading statements about 2 Some of the consumer inquiries to Purple utilize language that is very similar or identical to the false and misleading statements being published online by Defendants. v Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 6 of 80 Purple and its products over the internet. Finally, as set forth below, the facts make clear that Purple is substantially likely to prevail on the merits of its claims for Lanham Act false advertising, tortious interference with economic relations, defamation, and trade libel. For all of these reasons, including the minimal or non-existent risk that Defendants will be harmed by any wrongfully-entered injunction, no bond should be required if a temporary restraining order issues. In short, Purple respectfully requests that the Court grant its motion and enter a temporary restraining order without bond against Defendants. STATEMENT OF FACTS3 Purple 1. 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. See Declaration of Sam Bernards (“Bernards Decl.”) ¶ 4, attached hereto as Exhibit “A.” 2. 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, all of whom are located in Utah and many of whom are involved in the manufacturing of Purple’s products. See id. ¶ 5. Many of the facts set forth herein and in the attached declaration of Purple’s CEO are included in Purple’s Complaint filed against Defendants on February 24, 2017. [See Doc. No. 2]. However, certain additional facts have been added since that date, such that it is not practical to incorporate the Complaint by reference. 3 vi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 7 of 80 3. 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. See id. ¶ 6. 4. 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. See id. ¶¶ 7-8. 5. By 1993, the Pearce brothers 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 Pearce brothers 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 (Top-Flite). 6. 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. See id. ¶ 9. The same feature turned out to provide highly effective back support in mattresses. 7. 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), vii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 8 of 80 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. 8. 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. See id. ¶ 10. 9. Additional innovations and improvements have been made over time, including as to the discovery of the proprietary non-toxic anti-tack powder, which is made from plastic from a family of plastics used for food containers and children’s toys, and which has been allowed for use in surgical implants by the FDA. The plastic powder used by Purple sticks to the Hyper-Elastic Polymer™ and prevents the mattresses and pillows from sticking to themselves when they are compressed for shipping. Purple is currently seeing patent protection for the use of the anti-tack powder in this manner. See id. ¶ 11. 10. The Pearce brothers own numerous cushioning-related patents and pending patent applications. See id. ¶ 12. 11. Purple would not sell product to consumers if it had any reason to believe its products were unsafe. See id. ¶ 13. viii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 9 of 80 12. Purple attempts to continually improve its processes to use the appropriate amount of powder on its products for shipping to consumers. Both mattress and pillow products having this powder have covers over the powdered Hyper-Elastic Polymer™ when shipped to consumers as finished products, and these products are typically used by consumers with a mattress protector and/or sheet (bed only) or a pillow case. See id. ¶ 34. 13. Apart from the obviously edited clips of telephone calls posted on the Blog, which purport to be calls to Purple from HMR representatives (who do not identify themselves as such, or the fact that the conversations are being recorded), Purple is unaware of any efforts by GhostBed, HMR, or Monahan to contact Purple about the safety of its products or the anti-tack powder, and is unaware of any Purple representatives who have refused to provide pertinent, non-confidential information. See id. ¶ 35. 14. Because Purple discovered the innovative anti-tack powder itself, the exact identification of the powder is currently proprietary. Purple has applied for patent protection related to the use of the powder. See id. ¶ 36. Purple’s Online Marketing Strategy 15. 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. See id. ¶ 14. ix Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 10 of 80 16. 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. See id. ¶ 15. 17. Purple’s competitors in the BIB market include GhostBed, Casper, Leesa, and Tuft & Needle, among others. 18. Purple passes along to its consumers the cost savings it achieves through its vertical integration strategy of innovation, manufacturing, and marketing, as illustrated by a graphic on Purple’s website: https://onpurple.com/mattress; see also Bernards Decl. ¶ 17. 19. In response to online orders, Purple delivers mattresses to consumers for a risk free trial. 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. See Bernards Decl. ¶ 18. x Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 11 of 80 20. The BIB segment is the fastest growing segment in the multi-billion-dollar mattress industry. See id. ¶¶ 19-20. 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. 21. 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. 22. 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. See id. ¶ 22. 23. Purple places a high value on the safety, reliability, and quality of its products. Purple has invested millions of dollars into research and development and our manufacturing processes. Its mattresses have passed all governmental safety requirements, enabling Purple to deliver on the promise of providing a superior sleep experience. See id. ¶ 23. 24. Purple’s 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, including our unique, effective, and innovative marketing and the development of our online presence. See id. ¶ 24. 25. Indeed, Purple’s website has drawn at least tens of millions of visitors, and its marketing videos have hundreds of millions of views. Purple’s popularity and high online visibility may actually be contributing to Defendants’ efforts to malign Purple by xi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 12 of 80 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. 26. 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 27. 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, see, e.g., id. ¶¶ 27, 44, 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. 28. Because Purple relies strictly on an e-commerce sales strategy, online comments and reviews are very significant to its business. See id. ¶ 27. 29. 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: 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. xii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 13 of 80 “Bed-in-a-Box Startups Challenge Traditional Mattress Makers,” Wall Street Journal, March 7, 2016, attached as Exhibit “B,” (emphasis added). 30. Defendants HMR and Monahan appear to agree with this perspective. As they posted on the Blog: https://www.honestmattressreviews.com/mattress-reviewers/. 31. Purple welcomes the intense customer and reviewer scrutiny that is found in the marketplace of ideas that is the internet, including factually accurate negative reviews, which can provide valuable input to the company. See Bernards Decl. ¶ 28. 32. 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. See id. The “honestmattressreviews.com” Blog and the Campaign Against Purple 33. 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. See id. ¶ 30. 34. 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, the anti-tack powder, and the integrity and honesty of the business. See. xiii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 14 of 80 35. 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. 36. 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. See id. ¶ 31. 37. The “Articles” are titled as follows: (a) “WHAT EXACTLY IS THAT WHITE POWDER ON PURPLE’S MATTRESS?” (the “White Powder ‘Article’”), https://www.honestmattressreviews.com/purple-mattress-powder/, attached hereto as Exhibit “C.” (b) “A DEEPER INVESTIGATION INTO PURPLE MATTRESS & PILLOWS WHITE POWDER” (the “Purple Investigation ‘Article’”), https://www.honestmattressreviews.com/purple-mattress-whitepowder/, attached hereto as Exhibit “D.” (c) “PSA DUE TO PURPLE’S UNKNOWN POWDER WE’RE REVOKING OUR ENDORSEMENT” (the “Revoked Endorsement ‘PSA’”), https://www.honestmattressreviews.com/purples-unknownpowder/, attached hereto as Exhibit “E.” (d) “PURPLE ACKNOWLEDGEMENT OF THE WHITE POWDER STILL MISLEADS CONSUMERS” (the “Purple Misleads Consumers ‘Article’”), xiv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 15 of 80 https://www.honestmattressreviews.com/purplesacknowledgement-white-powder/, attached hereto as Exhibit “F.” (e) “MATTRESS REVIEWERS HAVE A RESPONSIBITY TO ACKNOWLEDGE CONSUMER SAFETY” (the “Responsibility ‘Article’”), https://www.honestmattressreviews.com/mattressreviewers/, attached hereto as Exhibit “G.” Defendants Have No Evidence That Purple’s Products Are Unsafe 38. 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. 39. For instance, upon information and belief, none of the Defendants have conducted any safety or other testing of Purple’s products. 40. Defendants also have no evidence to suggest that Purple’s products are in any way unsafe. 41. Despite the lack of any support for their claims, 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 suggesting 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 are 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. xv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 16 of 80 The First Post: The White Powder “Article” (Exhibit C) 42. The White Powder “Article” was posted on the Blog in approximately mid- January 2017, setting the stage for Defendants’ smear campaign. 43. 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 44. The inflammatory questions in the White Powder “Article” include the following: 45. 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. 46. Moreover, the White Powder “Article” falsely suggests that the powder on Purple’s products is “Talcum Powered,” [sic] references multi-million dollar lawsuits involving babies,” and indicates that baby powder has been found to cause Ovarian cancer: xvi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 17 of 80 47. 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 48. 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: 49. The White Powder “Article” further falsely asserts that Purple is not interested in the consumer or consumer safety: 50. 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: xvii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 18 of 80 51. 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” (Exhibit D) 52. 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. 53. 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. 54. 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): xviii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 19 of 80 55. The Investigation “Article” also reiterates the inflammatory questions included in the White Powder “Article,” again strongly suggesting that Purple’s products are unsafe: “ 56. 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: 57. 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: 58. 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: xix Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 20 of 80 59. Again creating the impression that Purple’s products are unsafe and its product testing is inadequate, the Investigation “Article” makes statements that Purple’s 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:” 60. 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: 61. 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. See also xx Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 21 of 80 https://www.youtube.com/watch?v=KZ6bzrqjo4M. The video includes an opening image of a woman who appears to be exhaling a caustic, brown substance: 62. The title page of the video is as follows: xxi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 22 of 80 63. 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. 64. It has been reported in the media that some people have literally died as a result of the cinnamon challenge. 65. 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:” 66. 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: xxii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 23 of 80 67. 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: 68. 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” (Exhibit E) 69. 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. 70. 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: xxiii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 24 of 80 71. The top of the Responsibility “Article” also includes, in larger form, the image of a large “”X” in the red circle: 72. 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. xxiv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 25 of 80 73. 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. 74. 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. 75. 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. 76. 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: xxv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 26 of 80 77. 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: 78. Also included are statements that Purple is “subjecting consumers to a powder that could impair or impact their physical health:” 79. 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:” xxvi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 27 of 80 Purple Responds to the Misleading Posts by Defendants HMR and Monahan 80. 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: xxvii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 28 of 80 https://onpurple.com/blog/non-toxic-plastic-powder, attached as Exhibit “H;” see also Bernards Decl. ¶ 32. 81. Purple explained, among other things, that the purpose of the non-toxic plastic powder is to prevent Purple’s Hyper-Elastic Polymer™ from sticking to itself, that the powder is non-toxic and chemically inactive, and that it is from a family of plastics used for food containers and children’s toys. See Bernards Decl. ¶ 33. The website also indicates that the powder does not contain talc and contains no mineral products, and is entirely safe: ... 82. Purple also explained that the powder was so innovative as to be proprietary, and that it could not release the details – which are currently trade secrets – until after its pending patents became publicly available, a standard and well-known xxviii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 29 of 80 business strategy employed by every responsible corporate entity that is protecting its intellectual property: The Fourth Post: The Purple Misleads Consumers “Article” (Exhibit G) 83. The Purple Misleads Consumers “Article” was posted shortly after February 13, 2017. 84. 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: xxix Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 30 of 80 85. 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. xxx Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 31 of 80 86. 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. 87. 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. 88. 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: 89. The Purple Misleads Consumers “Article” falsely suggests that Purple is rejecting accountability for consumer safety: 90. 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: xxxi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 32 of 80 91. 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: 92. 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: 93. 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: xxxii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 33 of 80 94. 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): xxxiii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 34 of 80 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 y0u1ube com/watch7v= qCuPOfrquA Seeyus! how Purplo?: hype! No 1c 90 y'wr M. I give you the best nughis sleep you have we had' Purple You also seek sympathy in ?protecting 600 Jobs' and in your ?trade secrets? which provides you some form of shielding from disclosure. Our scaentists ddr": Just solve the problem they found a safe optio" .n colng so a'ic have aoaned fo' a patent U'itl the pate'i: lS Pope :s Recong exact type of oasnc a 'traCe secretf whic" helps voted the jobs of those 600 people from cornpetitors who won: love to ?gure Out now to do weak Purple does But khow that .t .s a very common type of plastic used 1h maay huma?t0uch p'oducts eveh. ih products for children But, your processes is patented and protected. If it wasn?t already protected inteIIiBED 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 Ton Pierce. inteIIiBED'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. INTELLIBEDCE) IS A REGISTERED TRADEMARK OF ADVANCED COMFORT TECHNOLOGIES INC. OF SALT LAKE CITY, UTAH Purple-'5 Footer, ?Protected by one or more of U.S. Patents 5,749,111; 6,026,527; 2,323,233; Laziness; :r',ss4,ss4; and 9,051,169, with others pending. Purple and all product names comprising Purple, Hyper?Elastic Polymer, and Ho Pressure are trademarks of E, LLE of Alpine, Utah Luna-Hurr- .- Aural-Fish: ?.ou hum: Imus up nan-?row. India-id? ru?q?l? aAcr-u- hurvvi'w'b?vl fella-v Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 35 of 80 95. 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: 96. 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: xxxv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 36 of 80 FOOD (ONIACI GRADE USEAGE HE Dom KNou IHE mm MAKEUP AS waommsv' Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 37 of 80 97. 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: xxxvii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 38 of 80 98. 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: 99. 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: xxxviii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 39 of 80 100. 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:”: xxxix Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 40 of 80 The Fifth Post: The Responsibility “Article” (Exhibit G) 101. The Responsibility “Article” was posted the next day, 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. 102. 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 or dangerous substance – as follows: xl Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 41 of 80 103. The top of the Responsibility “Article” also includes, in larger form, the image of the large “X” in the red circle: xli Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 42 of 80 104. 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. 105. 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. 106. For example, the Responsibility “Article” has statements suggesting that a physician’s Hippocratic Oath is applicable to mattress makers and referencing “poison,” xlii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 43 of 80 falsely suggesting that Purple’s products are not only unsafe, but might poison the customer: 107. 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). 108. 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: xliii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 44 of 80 109. 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: 110. 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: xliv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 45 of 80 Cumulative Impact and Grouping 111. 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 112. Despite Monahan’s efforts to hide his involvement with GhostBed, upon investigation, Purple discovered that Monahan had (at least in the past) been closely associated with Purple’s competitor, GhostBed. Specifically, Monahan was previously employed GhostBed’s Chief Brand Officer. See Bernards Decl. ¶ 37. 113. Purple believes that Monahan may still maintain an office at GhostBed and can be reached by calling the number on the GhostBed’s website. See id. ¶ 37. 114. On October 10, 2016, Monahan formed Honest Reviews, LLC. See Articles of Organization, attached as Exhibit “I” (listing registered agent as Monhan agent). 115. Upon information and belief, Monahan is the sole 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. xlv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 46 of 80 116. 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. 117. 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. 118. For example, a cached Google page showed that Monahan was an author on www.GhostBed.com: xlvi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 47 of 80 See search results attached as Exhibit “J.” 119. Similarly, a cached Google page identifies Monahan as an author on www.GhostBed.com: xlvii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 48 of 80 See search results attached as Exhibit “K.” 120. 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. 121. Similarly, Monahan’s Twitter profile previously identified him as the Chief Brand Officer of GhostBed: xlviii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 49 of 80 See search results attached as Exhibit “L.” 122. 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: xlix Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 50 of 80 See search results attached as Exhibit “M.” 123. Similarly, Monahan’s LinkedIn also previously identified him as the “Chief Brand Officer” for GhostBed: l Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 51 of 80 See search results attached as Exhibit “N.” 124. 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 125. As Purple has discovered, see Bernards Decl. ¶ 39, 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 li Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 52 of 80 appearing on the Blog, including purported concerns about the “powder,” a baby, “Johnson and Johnson,” “cancer,” and “safety:” See review attached as Exhibit “O.” Defendants Are Surreptitiously Working to Promote GhostBed Over Other Mattress Companies 126. 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. 127. 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. lii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 53 of 80 128. 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 129. 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. 130. Among other things, the numerous “disclaimers” on the Blog are designed to contribute to this overall perception. The Compensation Disclaimers 131. 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”). 132. For example, a statement that, “Our website receives zero affiliate commissions” appears on the footer of every page of the Blog: See, e.g. https://www.honestmattressreviews.com/. liii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 54 of 80 133. The “What is Honest Mattress Reviews” page includes the following statement: See https://www.honestmattressreviews.com/what-is-honest-mattress-reviews/ 134. The Responsibility “Article” includes additional statements disclaiming any commission or other relationship with mattress companies, and emphasizing integrity: See https://www.honestmattressreviews.com/mattress-reviewers/ The “Ethics and Free From Influence Disclaimers” 135. 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”). 136. 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. 137. 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] liv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 55 of 80 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.” See https://www.honestmattressreviews.com/disclaimer/ 138. 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 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.” See https://www.honestmattressreviews.com/what-is-honest-mattress-reviews/ The Blog’s Mattress Rankings Are Not Independent and Unbiased 139. 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. 140. 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. See https://www.honestmattressreviews.com/mattress-reviews/. 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. See Bernards Decl. ¶ 38. lv Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 56 of 80 141. 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:” 142. 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. 143. 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: lvi Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 57 of 80 The Blog and the Disclaimers are False and Misleading 144. 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. (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 fails to disclose that Monahan can still be contacted by calling GhostBed. (f) 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. lvii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 58 of 80 Purple Has Been Injured, Irreparably Harmed, and Faces Additional and Continuing Irreparable Harm 145. 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. See Bernards Decl. ¶ 40. 146. 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.” See id. ¶ 41. 147. The BIB market is in a period of rapid expansion and growth. See id. ¶ 19. 148. Capturing market share during a period of rapid expansion and growth is critical for competitors like Purple. See id. ¶ 21. 149. 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. See id. ¶ 22. 150. Purple is the fastest growing player in the BIB segment. 151. 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. 152. Because Purple relies strictly upon an e-commerce platform for selling its bedding products to its customers, its online reputation and goodwill are of critical importance to its success. lviii Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 59 of 80 153. Defendants’ actions have already harmed and will continue to tarnish Purple’s goodwill and reputation in the marketplace. 154. 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. 155. Defendants’ actions threaten to adversely affect Purple’s ability to attract and retain key employees needed to manage its growth. 156. 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. lix Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 60 of 80 ARGUMENT I. PURPLE IS ENTITLED TO A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION TO ENJOIN DEFENDANTS’ WRONGFUL CONDUCT The standard for a temporary restraining order is the same as for a preliminary injunction. See Klein-Becker USA, LLC v. Collagen Corp., No. 2:07-CV-873 TS, 2008 WL 4681781, *1-*2 (D. Utah Oct. 22, 2008) (citing Bauchman by and through Bauchman v. West High Sch., 900 F. Supp. 248, 250 (D. Utah 1995)). A federal court may issue preliminary injunctive relief when the movant establishes (1) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (2) that the balance of equities tips in movant’s favor; (3) that the injunction is in the public interest; and (4) a likelihood of success on the merits. See Community Television of Utah, LLC v. Aereo, Inc., 997 F. Supp. 2d 1191, 1197 (D. Utah 2014) (quoting RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009)). Here, each prong is met, and Purple is entitled to a temporary restraining order. A. PURPLE IS SUFFERING AND WILL CONTINUE TO SUFFER IRREPARABLE HARM ABSENT THE REQUESTED INJUNCTIVE RELIEF “[B]ecause a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (internal quotation marks and citations omitted). Irreparable harm is present where the injury at issue “is incapable of being 1 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 61 of 80 fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly arrive at the amount of the damages.” Southwest Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009). Courts have often recognized that the loss of goodwill or damage to a business reputation amounts to irreparable harm because “it is virtually impossible to ascertain the precise economic consequences of intangible harms, such as damage to reputation and loss of goodwill.” TY, Inc. v. Jones Group, Inc., 237 F.3d 891, 902 (7th Cir. 2001). Similarly, this district has stated that “irreparable harm findings are based on such factors as the difficulty in calculating damages, the loss of a unique product, and existence of intangible harms such as loss of goodwill or competitive market position.” Community Television of Utah, LLC v. Aereo, Inc., 997 F. Supp. 2d 1191, 1203 (D. Utah 2014) (emphasis added) (quoting Dominion Video Satellite, 356 F.3d at 1260). The United States Supreme Court has also stated that “a substantial loss of business . . . sufficiently meets the standards for granting interim relief, for otherwise a favorable final judgment might well be useless.” Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975). In this case, Purple is suffering and will continue to suffer irreparable harm if an order is not granted to enjoin Defendants from continuing to impugn Purple’s products and business without any legitimate basis or evidence for doing so. The harm facing Purple is irreparable in that Purple’s reputation and goodwill are seriously at risk, and it is faced with a substantial loss of business. These are harms that cannot be readily be quantified or fully compensated by monetary damages. Purple is a relatively young but 2 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 62 of 80 highly successful company that is in the process of establishing itself and its products as staples in the BIB market. To be successful in this process, Purple has expended significant resources and time, including by developing its exclusively e-commerce platform through innovative marketing and exposure. Purple’s products are highquality, innovative, and patented or patent-pending products that have been well received by the consumer market. Despite these successes, due to Defendants’ smear campaign, Purple’s efforts may prove fruitless. Defendants have taken steps to malign and create the impression that Purple’s products, including the Purple® Bed, are unsafe and even dangerous, even going so far as to suggest that Purple’s mattresses and pillows could cause cancer. Critically, Defendants have made these statements with no proof whatsoever. Instead, Defendants have merely observed the presence of a powder-like substance on Purple’s mattresses and pillows and utilized that fact to generate numerous “articles” and posts containing multiple inflammatory statements and accusations – which are now available not only on the Blog but on various platforms throughout the internet. The cumulative effect of these statements is unmistakably false and highly likely to lead to customer confusion, which has already commenced. Defendants’ widespread accusations regarding Purple’s integrity are likewise causing irreparable harm. By falsely stating over and over that Purple has “failed” to respond to inquiries regarding the safety of its products, has “failed” to adequately test its products, and has “failed” to provide any safety information about its products, Defendants are directly attacking Purple’s reputation and goodwill. The impact of such 3 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 63 of 80 statements is obvious. They will and have already led customers and potential customers to question the integrity of the company, resulting in undeniable irreparable harm. For these and other reasons, without an order enjoining Defendants from the above conduct, Purple stands to lose competitive position, its favorable reputation, and its goodwill in the market. These harms are unquantifiable and relate to Purple’s unique market position and investment in that market position. See, e.g., MonaVie, LLC v. Wha Lit Loh, Case No. 2:11-cv-265 TS, 2011 WL 1233274, *3 (D. Utah March 31, 2011) (granting an ex parte temporary restraining order where the threatened irreparable harm included “(1) diminished sales and diluted trademarks, trade names, and goodwill; (2) lost control and quality of its products and business . . .; or (3) exclusion from the market altogether.”). Consequently, Defendants’ conduct has and is causing Purple irreparable harm, entitling Purple an immediate temporary restraining order. B. THE HARM FACING PURPLE FAR OUTWEIGHS ANY POTENTIAL HARM TO DEFENDANTS FROM THE REQUESTED TEMPORARY RESTRAINING ORDER In determining whether to grant an injunction, consideration must be given to whether the defendant would suffer greater harm than the plaintiff if the requested injunctive relief is granted. See Davis v. Minetta, 302 F.3d 1104, 1116 (10th Cir. 2002). If a defendant’s alleged harm from the injunction is of a “self-inflicted nature,” this consideration will weigh in favor of granting injunctive relief. Id. There is little doubt that the equities weigh strongly in favor of granting Purple’s requested injunctive relief in this instance. As described above, Purple has and will suffer significant harm irreparable to 4 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 64 of 80 its reputation and goodwill, and it could lose substantial business and its market position. By contrast, any harm or loss of “investment” that Defendants may purport to claim as a result of the injunction is harm that Defendants inflicted upon themselves. Defendants have knowingly posted false and materially misleading information regarding Purple and its products on the internet, in the process generating substantial controversy about the issues and causing consumers to question Purple’s products and integrity. Defendants are likely to suffer very little harm, if any, and any harm they may suffer is self-inflicted because they took the risk of posting unsubstantiated and false statements and claims for the sole purpose of harming Purple and confusing the public about the company and its products. Moreover, given the circumstances, Purple should not be required to post a bond to cover any harm, if the temporary restraining order issues. Accordingly, the balance of harm weighs significantly in favor of Purple, and Purple’s requested temporary restraining order should be entered. C. ISSUANCE OF THE REQUESTED INJUNCTIVE RELIEF WILL SERVE THE PUBLIC INTEREST Injunctive relief in this case is not adverse to the public interest, but instead will serve the public interest. To prevail on this element, Purple need only establish that injunctive relief will not be adverse to the public interest. See City of Chanute v. Kansas Gas & Elec. Co., 754 F.2d 310, 312 (10th Cir. 1985). The public interest favors protection of the goodwill of businesses. See, e.g., Morgan Stanley Smith Barney LLC v. O’Brien, No. 3:13-CV01598 (VLB), 2013 WL 5962103, at*8 (D. Conn. Nov. 6, 2013) (explaining that “there is 5 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 65 of 80 a public interest in the protection of the goodwill of businesses.”); Tootsie Roll Indus., Inc. v. Sathers, Inc., 666 F. Supp. 655, 661 (D. Del. 1987) (recognizing that “the public has an interest in protecting business goodwill.”). The public interest is also served by “preventing customer confusion or deception” and preventing the spread of “unsupported statements.” Osmose, Inc. v. Viance, 612 F.3d 1298, 1321 (11th Cir. 2010) (affirming trial court’s conclusion that injunction did not disserve public interest). In this case, temporary injunctive relief will protect and prevent additional harm to Purple’s reputation and goodwill, just as it will prevent consumer confusion and deception, deter unfair business practices, and promote fair and honest competition. Thus, this factor also weighs significantly in favor of issuing a temporary restraining order. D. A TEMPORARY RESTRAINING ORDER IS APPROPRIATE BECAUSE PURPLE IS LIKELY TO PREVAIL ON THE MERITS OF ITS CLAIMS Purple is also entitled to a temporary restraining order because it is highly likely to prevail on the merits of its substantive claims, including for false advertising under the Lanham Act, tortious interference with economic relations, defamation, and trade libel. With respect to this element of the standard for injunctive relief, the Tenth Circuit has explained that “[t]he very purpose of an injunction under Rule 65(a) is to give temporary relief based on a preliminary estimate of the strength of the plaintiff's suit, prior to the resolution at trial of the factual disputes and difficulties presented by the case.’ Although “[t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success,” “[a]ll courts agree that plaintiff must present a prima facie case but need not show a certainty of winning.” 6 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 66 of 80 Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d 1245, 1252 (10th Cir. 2016) (emphases added) (citations omitted). Further, Purple need not establish a likelihood of success on all of its claims; instead, Purple is entitled to an injunction even if it meets the standard as to just one of its claims. See, e.g., id. at 1252 (holding that plaintiff was entitled to a preliminary injunction where it established a likelihood of success on the merits on two of its three claims). The Tenth Circuit has also held that, “[i]f the plaintiff can establish that the . . . three requirements [other than likelihood of success] tip strongly in his favor, the test is modified, and the plaintiff may meet the requirements for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1255-56 (10th Cir. 2003) (quoting Davis v. Mineta, 302 F.3d 1104,1111 (10th Cir. 2002); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. 2003). Because the first three elements of the standard weigh heavily in favor of granting a temporary restraining order in this case, Purple need only meet the modified standard. Nevertheless, as set forth below, the evidence shows that Purple readily satisfies the traditional standard. Lanham Act – Section 43(a)(1)(A)-(B) To prevail on a claim of false advertising under the Section 43(a) of the Lanham Act, a plaintiff must show by a preponderance of the evidence that the defendant made a materially “false designation of origin, false or misleading description of fact, or false 7 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 67 of 80 or misleading representation of fact” in commerce in connection with its advertising of a product which is either: (A) likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities. 15 U.S.C. § 1125(a)(1)(A)-(B). A plaintiff must also show that it is “likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.” Zoller Labs., LLC v. NBTY, Inc., 111 F. Appx. 978, 982 (10th Cir. 2004); see also Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 980 (10th Cir. 2002) (“The elements of a claim for false statements under the Lanham Act are “(1) that the defendant made material false or misleading representations of fact in connection with the commercial advertising or promotion of [a] product; (2) in commerce; (3) that are either likely to cause confusion or mistake as to . . . the characteristics of the goods or services; and (4) injure the plaintiff.”). With respect to the first element, “[t]o show a qualifying false or misleading statement, a plaintiff must demonstrate that the defendant's statement was either (1) literally false or (2) literally true or ambiguous but implicitly false, misleading in context, or likely to deceive.” Gen. Steel Domestic Sales, LLC v. Chumley, 627 F. App'x 682, 684 (10th Cir. 2015); accord Novartis Consumer Health, Inc. v. Johnson & JohnsonMerck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002) (“Liability arises if the commercial message or statement is either (1) literally false or (2) literally true or 8 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 68 of 80 ambiguous, but has the tendency to deceive consumers.”); Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir.1993) (“[A] plaintiff must prove either literal falsity or consumer confusion, but not both.”). There are two ways to satisfy the false and misleading element of the claim for a reason: “‘Section 43(a) . . . encompasses more than literal falsehoods,’ because otherwise, ‘clever use of innuendo, indirect intimations, and ambiguous suggestions could shield the advertisement from scrutiny precisely when protection against such sophisticated deception is most needed.’” Cotrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d 1248, 1252 (10th Cir. 1999) (citations omitted). Defendants’ actions in this case meet both standards for the first element because their statements are literally false and because the statements, even if ambiguous or true, have already led and are likely to continue to mislead consumers and cause consumer confusion. The standard for literal falsity may be met in two different ways. “A ‘literally false’ message may be either explicit or conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as it if had been explicitly stated.” Vitamins Online, Inc. v. HeartWise, Inc., No. 2:13-CV-982-DAK, 2016 WL 5106990, at *9 (D. Utah Sept. 19, 2016) (citations omitted) (denying summary judgment in Lanham Act false advertising case). Here, as to explicit literal falsity, many of the statements and much of the information published by Defendants on the Blog are untrue in numerous respects, including the wholly unsubstantiated and false statements regarding the alleged dangers of Purple’s products, the alleged lack of adequate product testing by Purple, Purple’s alleged unwillingness to respond to inquiries about the safety of its products, and the alleged 9 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 69 of 80 neutrality of the reviews on comments on the Blog. These statements are also literally false when considered in their entirety and in light of their cumulative effect, because the viewers of the Blog are likely to “recognize the claim[s] as readily as it [they] had been explicitly stated.” Vitamins Online, 2016 WL 510990, at *9. That is, the overall impact of the statements is to convey the (false) messages that Purple’s products are dangerous, that Purple is not truthful and is hiding information, and that the information posted on the Blog is entirely without bias or affiliation. Even if Defendants’ statements were ambiguous or true, which they are not, they satisfy the first element of the Lanham Act claim because they are “implicitly false, misleading in context, [and] likely to deceive.” Gen. Steel Domestic Sales, 627 F. App'x at 684. As detailed above and in the Complaint, many of the statements on the Blog and in the “Articles” clearly imply that Purple is not forthcoming and that its products are unsafe, even where broad qualifying language is used. This is particularly true with regard to many of the inflammatory questions in the “Articles,” which ask, for example, whether the powder is safe, but which obviously intentionally raise the question and cause confusion in the minds of consumers as to that very issue, despite the lack of any proof to show that the powder is unsafe, and despite the fact that the only available evidence (of which Defendants are aware) is that the powder is safe. The vast number of the statements and assertions involved, especially when viewed in context and as a whole, are highly misleading to consumers, some of whom have already expressed confusion as to whether Purple’s products are safe and whether Purple is being honest. 10 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 70 of 80 Second, under Section 43(a)(1)(B), Defendants’ statements and representations constitute “commercial advertising or promotion,” and are clearly misrepresenting the nature and characteristics of Purple’s products, services, and commercial activities. Not only do the statements – without any substantiation at all – accuse Purple of selling unsafe products and refusing to disclose information related to those products, but they also falsely inform the public that Purple is not to be trusted. Further, Defendants’ statements misrepresent the nature and characteristics of their own services, in that HMR’s reviews and rankings are not unbiased or neutral, including because of HMR’s and Monahan’s affiliation with GhostBed. Likewise, the evidence establishes that Defendants’ misrepresentations of fact are likely to cause confusion or mistake as to the affiliation of Defendants with the mattress companies that appear and are reviewed on the Blog, including GhostBed in particular, satisfying section 43(a)(1)(A) of the Lanham Act. Specifically, the Blog and Monahan repeatedly assert they are unbiased and neutral, and that they receive no compensation of any kind from any mattress company. If this proves to be untrue, as the evidence strongly suggests, due to Monahan’s prior and/or continuing affiliation with GhostBed and the highly favorable reviews of GhostBed’s products on the Blog, among other things, then the statements are causing and likely to continue to cause confusion as to Defendants’ affiliation, whether HMR and Monahan are in fact neutral, and whether HMR or Monahan are being compensated for their “sponsorship.” False or misleading statements regarding endorsements, including endorsements that mislead consumers as to whether they are biased and independent, 11 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 71 of 80 are also in violation of the regulations and guidelines promulgated under Section 5 of the Federal Trade Commission Act (the “FTC Act”). See 16 C.F.R. §§ 255.0-255.5. Although these regulations do not provide a private cause of action, “a plaintiff may and should rely on FTC guidelines as a basis for asserting false advertising under the Lanham Act.” Manning Int’l, Inc. v. Home Shopping Network, Inc., 152 F. Supp. 2d 432, 437 (S.D.N.Y 2001); see also Casper Sleep, Inc. v. Mitcham, No. 16 Civ. 3224, ___ F. Supp. 3d ___, 2016 WL 4574388, *4 (S.D.N.Y. Sept. 1, 2016 ) (same). Finally, there is no doubt that Purple faces substantial harm as a result of Defendants’ conduct. Customers who otherwise might have purchased from Purple are highly likely, upon viewing Defendants’ false statements, to reconsider their decisions or be steered to competitive products such as GhostBed’s mattresses. These diverted sales will result in substantial losses of profits that would otherwise come to Purple, which is not to mention the harm resulting to Purple’s goodwill and reputation. In the absence of injunctive relief, Defendants will continue to flood the internet with false and misleading statements, drowning out Purple’s efforts to counteract those statements and maintain its place in the BIB market. In addition to the other remedies offered under the Lanham Act, the statute specifically authorizes injunctive relief in these circumstances, stating that courts may grant injunctions to prevent violations under, among other provisions, 15 U.S.C. § 1125(a). See 15 U.S.C. § 1116(a). In short, because Purple is likely to prevail on its claim under Section 43(a)(1) of the Lanham Act, immediate injunctive relief is warranted. 12 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 72 of 80 Tortious Interference with Economic Relations Purple is also likely to prevail on the merits of its claim for tortious interference with economic relations. To establish tortious interference, a plaintiff must show “(1) that the defendant intentionally interfered with the plaintiff's existing or potential economic relations, (2) by improper means, (3) causing injury to the plaintiff.” Eldridge v. Johndrow, 345 P.3d 553, 565 (Utah 2015). The improper means element is satisfied when “the means used to interfere with a party's economic relations are contrary to law, such as violations of statutes, regulations, or recognized common law rules. Improper means include violence, threats or other intimidation, deceit or misrepresentation, bribery, unfounded litigation, defamation, or disparaging falsehood.’” Keith v. Mountain Resorts Dev., L.L.C., 2014 UT 32, ¶ 46, 337 P.3d 213 (emphasis added) (quoting Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 18, 192 P.3d 858). The evidence in this case readily shows that Defendants are acting intentionally to harm and interfere with Purple’s economic relationships with both its existing and prospective customers. Absent their desire to harm Purple, the reviews on the Blog would likely appear just as the reviews it conducts for any other mattress company. Instead, Defendants have deliberately elected – with no evidence at all – to launch a campaign attacking the safety of Purple’s products, the company’s business practices, and its honesty with consumers. As noted above and as reflected in posts to Purple’s Facebook page, customers who would otherwise have purchased from Purple are being 13 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 73 of 80 diverted, including to GhostBed, as a result of Defendants’ campaign of false, misleading, and confusing statements. Moreover, Defendants are utilizing improper means to achieve their goals, satisfying the second element of the claim for tortious interference. As set forth in detail above and in the Complaint, Defendants’ statements on the Blog and elsewhere regarding Purple are in violation of the Lanham Act, which alone is sufficient to constitute improper means. The statements also constitute deceit or misrepresentation, defamation, and disparaging falsehood, any one of which is sufficient to meet this element. The injury element of tortious interference is also met, as Purple is already experiencing irreparable harm to its reputation and goodwill, lost profits, and diverted sales. Customers who otherwise might have purchased from Purple are highly likely, upon viewing Defendants’ false statements, to reconsider their decisions or be steered to competitive products such as GhostBed’s mattresses. These diverted sales will result in substantial losses of profits that would otherwise come to Purple, which is not to mention the harm resulting to Purple’s goodwill and reputation. Absent injunctive relief, these injuries will only worsen and increase. Accordingly, Purple is likely to succeed on the merits of its claim for intentional interference with economic relations. Defamation A plaintiff makes a prima facie case for defamation if he shows that “(1) the defendant published . . . statements [in print or orally]; (2) the statements were false; 14 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 74 of 80 (3) the statements were not subject to privilege; (4) the statements were published with the requisite degree of fault; and (5) the statements resulted in damages.” Jacob v. Bezzant, 2009 UT 37, ¶ 21, 212 P.3d 535 (quotations omitted). The requisite degree of fault for a defamation claim brought by a private plaintiff is negligence. See Seegmiller v. KSL, Inc., 626 P.2d 968, 973 (Utah 1981). That is, if the defendant published the statement with negligence as to the truth or falsity of the statements, then the defendant will be liable if the other elements of the claim are met.4 See id. Statements are defamatory per se if they “charge of conduct that is incompatible with the exercise of a lawful business, trade, [or] profession[.]” Baum v. Gillman, 667 P.2d 41, 43 (Utah 1983). Even if the statements are qualifiedly privileged, a defendant may still be liable if the statements were made with reckless disregard for their truth or falsity or with malice. See Alford v. Utah, 791 P.2d 201, 204 (Utah Ct. App. 1990); see also Seegmiller, 626 P.2d at 978-9. Defendants’ false statements are not subject to any kind of privilege, and Purple has been damaged as a result. Accordingly, the temporary restraining order should be granted. First, there is no question that Defendants have published statements concerning Purple, including on the Blog and on various social media platforms. Second, the 4 The degree of fault for a defamation claim brought by a public figure is reckless disregard for the truth or falsity of the statements, or actual malice. See Wayment v. Clear Channel Broadcasting, Inc., 116 P.3d 271, 278 (Utah 2005). Even if this higher standard of fault were applied to Purple’s claims, Defendants would still be liable, since they published their statements with reckless disregard as to their truth or falsity, as demonstrated more fully above. 15 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 75 of 80 express and implied statements are false. Indeed, Defendants are clearly misrepresenting the nature and characteristics of Purple’s products, services, and commercial activities. Not only do the statements accuse Purple of selling unsafe products and refusing to disclose information related to those products, but they also falsely inform the public that Purple is not to be trusted. Defendants are making these statements in an effort to create a viral online controversy related to Purple and the alleged lack of safety of its products. The statements are false because Purple has extensively tested its products for safety, and Purple is responsive to customer concerns and inquiries. Purple would not sell an unsafe product. Third, Defendants published the statements with negligence, or with reckless disregard as to the truth or falsity of the statements. In determining whether a defendant published a statement with negligence, the question is whether the defendant “acted reasonably in checking on the truth or falsity” before publishing. Seegmiller, 626 P.2d at 976 (quotations omitted). Here, there is no question that Defendants acted unreasonably before publishing the false statements, including because Defendants have absolutely no reason to believe or suggest that Purple’s products are harmful or somehow unsafe. Additionally, by stating that Purple is unresponsive to its customers concerns, Defendants have blatantly disregarded Purple’s repeated and public efforts to address the safety of its products. These facts demonstrate that Defendants have not acted reasonably, and have therefore published their statements with negligence. Reckless disregard as to falsity “exists when there is a high degree of awareness of probable falsity or serious doubt as to the truth of the statement.” Ferguson v. 16 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 76 of 80 Williams & Hunt, Inc., 2009 UT 49, ¶ 30, 221 P.3d 205. While reckless disregard is subjective, “certain facts may show . . . that there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. (quotations omitted). Here, Defendants had more than “obvious reasons” to doubt the veracity of their statements. As noted above, Defendants have absolutely no reason to believe or suggest that Purple’s products are harmful or somehow unsafe. Additionally, by stating that Purple is unresponsive to its customers concerns, Defendants have blatantly disregarded Purple’s repeated and public efforts to address the safety of its products. These facts demonstrate that Defendants have acted with reckless disregard of the truth, or with actual knowledge of the falsity of their statements. Fourth, the statements are not subject to any privilege.5 However, even if the statements are subject to a qualified privilege, that privilege can be overcome because Defendants have published their statements with reckless disregard or knowledge of 5 There are two types of privilege in the defamation context: absolute privilege and qualified privilege. Statements made by a party in the course of judicial proceedings, for example, are absolutely privileged, and the publisher is free from any liability. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997). On the other hand, the publisher of statements that are qualifiedly privileged may still be liable if he published the statements with knowledge of their falsity, with reckless disregard of the statements’ truth or falsity or with malice. See Alford v. Utah, 791 P.2d 201, 204 (Utah Ct. App. 1990); see also Seegmiller, 626 P.2d at 978-9. Statements are qualifiedly privileged if they are intended to “protect a legitimate interest of the publisher, the recipient, or a third person.” Ferguson, 2009 UT 49 at ¶ 27. Such statements would include an employer’s communication to other interested parties concerning the reasons for an employee’s discharge. See id. Defendants cannot claim any privilege, absolute or qualified, in this case. 17 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 77 of 80 their falsity, as demonstrated above. See Alford v. Utah, 791 P.2d 201, 204 (Utah Ct. App. 1990); see also Seegmiller, 626 P.2d at 978-9. Fifth, the statements are defamatory per se, and have resulted in damages. Because the statements impugn Purple’s customer-service practices and the safety of its products, they “charge conduct that is incompatible with the exercise of a lawful business,” and are defamatory per se. See Baum, 667 P.2d at 43. Moreover, the damages caused by the false statements is evident from the voluminous customer inquiries concerning the safety of the anti-tack powder. Additionally, there is no doubt that Purple has been damaged as a result of Defendants’ conduct. Customers who otherwise might have purchased from Purple are highly likely, upon viewing Defendants’ false statements, to reconsider their decisions or be steered to competitive products, such as GhostBed’s mattresses. These diverted sales will result in substantial losses of profits that would otherwise come to Purple, which is not to mention the harm resulting to Purple’s goodwill and reputation. Therefore, because Purple is likely to prevail on its claim for defamation, immediate injunctive relief is warranted. Trade Libel / Injurious Falsehood In order to recover under a claim of injurious falsehood or trade libel,6 a plaintiff must prove “(a) falsity of the statement made, (b) malice by the party making the The terms “injurious falsehood” and “trade libel” are synonymous. Farm Bureau Life Ins. Co. v. American Nat. Ins. Co., 505 F.Supp.2d 1178, 1191 (D. Utah. 2007). At its core, this cause of action “concerns statements regarding the quality of the plaintiff’s product or the character of the plaintiff’s business.” Watkins v. General Refractories 6 18 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 78 of 80 statement, and (c) special damages.” Farm Bureau Life Ins. Co. v. American Nat. Ins. Co., 505 F.Supp.2d 1178, 1191 (D. Utah. 2007). Here, Purple has demonstrated that Defendants made false statements, that the statements were made with malice, and that Purple has suffered special damages, namely, the revenue from the loss of potential customers. As to the first element, Purple has demonstrated that the statements are false. There is absolutely no basis in fact for Defendants to claim or imply that Purple’s products are hazardous, or that Purple is unresponsive to its customers’ questions and concerns. As to the second element, Purple has demonstrated that Defendants made the statements with malice. To show malice, a plaintiff may demonstrate that the statements were “were excessively published,” or that the publisher “did not reasonably believe his or her statements.” Wayment v. Clear Channel Broadcasting, Inc., 116 P.3d 271, 288 (Utah 2005) (quotations omitted). Here, Defendants could not have reasonably believed their statements concerning Purple’s products. As noted above, Defendants have absolutely no reason to believe or suggest that Purple’s products are harmful or somehow unsafe. Additionally, by stating that Purple is unresponsive to its customers concerns, Defendants have blatantly disregarded Purple’s repeated and public efforts to address the safety of its products. Co., 805 F.Supp. 911, 917 (D. Utah. 1992) (citing Direct Import Buyers Ass’n v. KSL, Inc., 538 P.2d 1040 (Utah 1975)). 19 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 79 of 80 With regard to the third element, special damages are those damages representing actual pecuniary losses suffered, as opposed to general damages, which cover pain and loss of reputation. See e.g., Balderas v. Starks, 2006 UT App 218, ¶ 16, 138 P.3d 75. Here, Purple has adequately demonstrated that it has suffered special damages, namely, the revenues from customers who otherwise might have purchased from Purple and are highly likely, upon viewing Defendants’ false statements, to reconsider their decisions or be steered to competitive products, such as those offered by GhostBed. These diverted sales will result in substantial losses of profits that would otherwise come to Purple. Because Purple is likely to prevail on its claim for injurious falsehood, immediate injunctive relief is warranted. CONCLUSION For all of the foregoing reasons, Purple respectfully asks the Court to grant its motion for temporary restraining order without bond, and to set a hearing for a preliminary injunction at a reasonable interval thereafter. DATED this 27th 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 20 Case 2:17-cv-00138-DB Document 8 Filed 02/27/17 Page 80 of 80 CERTIFICATE OF SERVICE I hereby certify that I am employed by the law firm of MAGLEBY CATAXINOS & GREENWOOD, 170 South Main Street, Suite 1100, Salt Lake City, Utah 84101, and that pursuant to Rule 5 of the Federal Rules of Civil Procedure, I am attempting to serve a true and correct copy of the foregoing MOTION FOR TEMPORARY RESTRAINING ORDER upon the following via personal service: HONEST MATTRESS REVIEWS c/o Ryan Monahan 900 North Federal HWY Suite 220 Boca Rotan, Florida 33432 Ryan Monahan 900 North Federal HWY Suite 220 Boca Rotan, Florida 33432 GHOSTBED 7143 West Broward Blvd. Plantation, Florida 33317 A report concerning service will be made to the Court as soon as possible. Dated this 27th day of February, 2017. /s/ Adam Alba________________________ 21 Case 2:17-cv-00138-DB Document 8-1 Filed 02/27/17 Page 1 of 4 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 Purple Innovations, LLC IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION PURPLE INNOVATIONS, LLC, A Delaware limited liability company, TEMPORARY RESTRAINING ORDER Plaintiff, v. HONEST REVIEWS, LLC, a Florida Corporation, RYAN MONAHAN, an individual, and GHOSTBED, a Delaware corporation, Defendants. Case No.: 2:17-cv-00138-PMW Magistrate Judge Paul M. Warner Based upon the Motion for Temporary Restraining Order filed by Plaintiff Purple Innovations, LLC (“Plaintiff” or “Purple”), against Defendants Honest Reviews, LLC, dba as or through www.honestmattressreviews.com (“HMR”), Ryan Monahan (“Monahan”), and GhostBed, Inc. (“GhostBed”) (collectively, “Defendants”), for good cause shown, and pursuant to Federal Rule of Civil Procedure 65, the Court orders as follows: Case 2:17-cv-00138-DB Document 8-1 Filed 02/27/17 Page 2 of 4 1. This Order was issued on ____________________ ___, 2017, at the hour of ___:___ ___.m. 2. This Order shall remain in effect for 14 days following the entry of this Order, unless the Court for good cause extends the Order or Defendants otherwise consent to a longer extension. 3. Plaintiff has a substantial likelihood of prevailing on the merits of the claims for which injunctive relief is sought, and there are serious issues on the merits of those claims that merit further litigation, including Plaintiff’s claims that Defendants have violated the Lanham Act, defamed Purple and its goods, and tortiously interfered with Purple’s economic relations. 4. Unless an injunction issues, Plaintiff will suffer irreparable harm, including but not limited to permanent injury to its goodwill and reputation, its ability to do business, and/or a loss of business in an amount difficult or impossible to quantify in monetary amount. 5. Plaintiff is attempting or has attempted to provide Defendants with notice of the motion. Given the irreparable harm Plaintiff has suffered and will continue to suffer until an injunction is issued, further delay is unwarranted and notice is not required at this time. 6. An injunction would not be adverse to the public interest. 7. The threatened injury to Plaintiff outweighs whatever damage an injunction could cause to Defendants. 2 Case 2:17-cv-00138-DB Document 8-1 Filed 02/27/17 Page 3 of 4 8. 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. 9. Defendants are hereby ORDERED as follows: (a) Defendants shall immediately discontinue making any and all false and misleading statements with regard to Purple and its products or services, from the website entitled www.honestmattressreviews.com and any other website or social media platform, including, without limitation, Facebook, Twitter, YouTube, and Instagram, in any medium or format; (b) Defendants shall immediately remove all false and misleading statements regarding Purple and its products or services, including but not limited to the “Articles” and “PSA” specifically referenced in Purple’s Complaint, from the www.honestmattressreviews.com website, from all social media forums, including, without limitation, Facebook, Twitter, YouTube, and Instagram, and from any other online location where the statements are located; (c) Defendants shall, within five days from the date of this Order, issue corrective advertising or statements on the www.honestmattressreviews.com website and anywhere else the false and misleading statements have been posted to remedy the confusion and deception caused by the false and misleading statements with regard to Purple; (d) Defendants shall, within five days from the date of this Order, issue corrective advertising or statements to correct any and all false and misleading statements regarding Monahan’s association or former association with 3 Case 2:17-cv-00138-DB Document 8-1 Filed 02/27/17 Page 4 of 4 GhostBed, and/or HMR’s association, affiliation, or receipt of compensation in any form from GhostBed or any other competitor of Purple; (e) In accordance with 15 U.S.C. § 1116(a) Defendants shall, within thirty days from the date this Order is served upon them, 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; and (f) Defendants are hereby restrained from making false, 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 by the Court, or about Purple’s efforts in this lawsuit 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. 10. This Order binds and is enforceable against not only Defendants, but also Defendants’ officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with Defendants and/or Defendants’ officers, agents, servants, employees, and/or attorneys. 11. This Order is issued without bond. DATED this ____ day of ____________________, 2017. UNITED STATES DISTRICT COURT _______________________________ 4 Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 1 of 12 Exhibit A Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 2 of 12 James E. Magleby (7247) maqlebv@mcqiplaw.com Christine T. Greenwood (8187) qreenwood@mcqiplaw.com Adam Alba (13128) alba@mcqiplaw.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 Purple Innovation, LLC IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION PURPLE INNOVATION, LLC, A Delaware limited liability company, Plaintiff, v. HONEST REVIEWS, LLC, a Florida Corporation, RYAN MONAHAN, an individual, and GHOSTBED, a Delaware corporation, Defendants. DECLARATION OF SAM BERNARDS IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER Case No.: Magistrate Judge Paul M. Warner I, Sam Bernards, hereby declare as follows: 1. I am over 21 years of age and have personal knowledge of the facts set forth in this Declaration. If asked to testify, I could and would testify as to the matters set forth below. 2. I am the Chief Executive Officer of Purple Innovation, LLC (?Purple?). I have been with Purple since September 2018. Case Document 8-2 Filed 02/27/17 Page 3 of 12 3. My duties include overseeing development and manufacturing of Purple?s products. 4. Purple is an innovative and successful company located and operating in Utah focused upon bringing technologically advanced comfort products and related products to the market to resolve and alleviate pain experienced by individuals while lying in bed or sitting. 5. Since the launch of Purple?s ?rst mattress product, the Purple? Bed, Purple has grown from having fewer than 50 employees in January 2016 to over 550 employees in February 2017, all of whom are located in the State of Utah and most of whom are involved in the manufacturing of Purple?s products. 6. Purple has expanded its business beyond the Purple? Bed, and we now provide a variety of innovative, quality products related to the mattress and sleep market, including the Purple? Pillow. 7. Purple was founded by brothers Tony and Terry Pearce, and they both are engineers. 8. The seeds of the business were planted in 1989, when the Pearce brothers decided to apply their engineering skills to develop innovative products that would improve people?s quality of life. 9. Purple?s mattress and pillow products are manufactured in Utah using Hyper-Elastic PolymerTM, which is molded into a shape that relaxes under pressure points, redistributing the pressure to other areas. Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 4 of 12 10. Purple utilizes its patented machine, called Mattress to manufacture Hyper-Elastic PolymerTM 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. 11. Purple has made innovations and improvements to its products over time, including discovering a proprietary use of a non-toxic, anti-tack powder made from plastic of a family of plastics that is used for food containers and children?s toys, and has been allowed by the FDA for use in surgical implants. The plastic powder used by Purple sticks to the Hyper-Elastic PolymerTM and prevents the mattresses and pillows from sticking to themselves when they are compressed for shipping. Purple is currently seeking patent protection for use of the anti-tack powder in this manner. 12. Purple has a number of cushioning-related patents and pending patent applications. 13. Purple would not sell product to consumers if we had any reason to believe our products were unsafe. 14. Beginning in 2016, Purple embarked upon an e-commerce marketing and sales strategy designed to get its products quickly into the hands of consumers at competitive prices. 15. Purple has successfully focused its efforts upon the ?Bed in a Box? mattress market segment. Purple does not have brick and mortar stores but instead sells its bedding products through an e-commerce platform. Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 5 of 12 16. Purple?s competitors in the BIB market include GhostBed, Inc. (?GhostBed?), Casper, Leesa, and Tuft Needle, among others. 17. Purple passes along to its customers the cost savings it achieves through its vertical integration strategy of innovation, manufacturing and marketing. 18. Purple delivers mattresses to consumers for a risk free trial. Purple currently offers consumers 100 days to try out the Purple? Bed, and it provides a full refund if the customer is not satis?ed. 19. The BIB segment is a fast-growing part of the mattress industry, with revenues estimated to be over one billion dollars. 20. The BIB segment is disrupting the mattress industry and experiencing a remarkable period of growth. For example, Google reports through its system for capturing trends that mattress internet search volume has doubled since 2012. 21. Capturing market share during a period of rapid expansion and growth is critical for Purple?s success. 22. 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 out of over 100 such companies, experiencing exponential and rapid growth. 23. Purple places a high value on the safety, reliability, and quality of its products. Purple has invested millions of dollars into research and development and our manufacturing processes. Its mattresses have passed all governmental safety requirements, enabling Purple to deliver on the promise of providing a superior sleep expedence. Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 6 of 12 24. Purple?s 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, including our unique, effective, and innovative marketing and the development of our online presence. 25. Purple?s website has drawn millions of visitors, and its marketing videos have been viewed by tens of millions of viewers. 26. Purple has received positive reviews from thousands of customers who have bene?tted from Purple?s products. 27. Because Purple relies heavily on an e-commerce sales strategy, online comments and reviews are significant to our business. 28. Purple welcomes and appreciates the intense customer and reviewer scrutiny of its products on the internet, including factually accurate negative reviews, which can provide valuable input that Purple can use to improve its products and business. However, because of our extensive e-commerce platform, reviews that are false or likely to mislead consumers can have a drastic impact on our reputation and sales. 29. Purple recently became aware of a new mattress review website, ?honestmattressreviews.com? (the ?Blog?), which purportedly is owned by Honest Reviews, LLC 30. Starting in January 2017, Purple discovered that the Blog had begun posting false and seriously misleading information regarding Purple and its products, including multiple posts calling into question the safety of the Purple? Bed products, Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 7 of 12 including the proprietary anti?tack powder, and the honesty and integrity of our business. 31. After investigating further, we discovered that five separate articles containing false and misleading information and innuendo have been posted on the Blog. We also learned that these articles can be found through simple internet searches and that they have been reposted to social media sites like Facebook and Twitter. 32. In an attempt to respond to the false, misleading, and confusing statements on the Blog and elsewhere, we have posted extensive, truthful information about our proprietary powder on the Purple website, which can be accessed at 33. Among other things, we explain that the purpose of the powder is to prevent Purple?s Hyper?Elastic PolymerTM from sticking to itself, that it is non?toxic and chemically inactive plastic, and that it is from a family of plastics used for food containers and children?s toys. Purple is unaware of any information or evidence showing that its products which have the anti?tack powder are in any way unsafe or dangerous to consumers using those products as intended. 34. Purple attempts to continually improve its processes to use the appropriate amount of powder on its products for shipping to consumers. Both mattress and pillow products having this powder have covers over the powdered Hyper?Elastic PolymerTM when shipped to consumers as finished products, and these products are Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 8 of 12 typically used by consumers with a mattress protector and/or sheet (bed only) or a pillow case. 35. Apart from the obviously edited clips of telephone calls posted on the Blog, which purport to be calls to Purple from HMR representatives (who do not identify themselves as such, or the fact that the conversations are being recorded), we are unaware of any efforts by GhostBed, HMR, or Monahan to contact Purple about the safety of its products or the anti-tack powder, and we are unaware of any Purple representatives who have refused to provide pertinent, non-con?dential information. 36. Because Purple discovered the innovative anti-tack powder itself, the exact identi?cation of the powder is currently proprietary, and we have applied for patent protection related to our use of the powder. 37. Purple just recently discovered and believes that Kyle Monahan was previously employed by Purple?s competitor, GhostBed, as its Chief Brand Officer. 38. GhostBed is third on the long list of mattress companies on the ?Reviews? page of the Blog, near Tempur Sealy so as to associate itself with the leading mattress company, both receiving a ?world-class? rating, and Purple is the only company having a ?poor? rating represented by a red circle with an in it. 39. Purple is informed and believes that, in mid-2016, GhostBed?s daughter, or some relation, posted a review of the Purple? Bed on Amazon.com under a 1! false name, which referenced the ?powder,? a baby, ?Johnson and Johnson, cancer,? and ?safety." Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 9 of 12 40. Since HMR began publishing the ?Articles? and the on the Blog, Purple has already been experiencing harm to its reputation. A number of consumers have recently indicated confusion regarding Purple and the safety of its products as a result of the false information being spread around the internet. 41. For example, consumers have recently begun posting a variety of comments addressing these issues on Purple?s Facebook page, including the following: ?Hey purple! lm loving all the reviews and hope to purchase a mattress by mid march, however I have heard something about a white powder inside they can be toxic? Would like to hear some more information before I make a desecison." ?Lol, is this the answer to the white powder problem? ?Just cover it up' 80 American lol? ?Yes Wil Moore but you generally don't eat plastic and you certainly do not breath it if you did it would be very bad. The stomachs acids could dissolve plastic but the lungs are much more delicate. Cody, dawn dish soap may not list the Ingredients but you can look them up. From what I have read purple refuses to disclose what the white powder is made of and that is the issue I have." ?What's the white powder I keep hearing about?? ?We tried purple and ended up going with a ghostbed. The last 3 weeks have been amazing! I?m a stomach sleeper myself. Purple didn?t cut it. I also have lung disease and there's a powdery substance used on the purple bed that made difficult to breathe.? ?Heard lawsuits are coming in due to toxic chemicals being in the mattress? ?80 reading that creates more questions for me. It may be considered food grade, non-toxic, and safer than a fork, but it's a plastic powder? Inhalation seems like it could be problematic. I don't like eating with plastic forks because they still have toxins regardless how safe they're deemed. most Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 10 of 12 certainly want to inhale anything considered any kind of plastic. So is this powder contained within the protective cover? Will it create a cloud of powder every time go to bed for me to inhale? I've been watching you grow with curiosity and interest, and I need a new bed, but this may be a deal breaker.? ?Is there a powder residue as claimed in another post I saw? Is it talc powder? Also if I buy the king electric base can I attach headboard to the base?? ?Ok so heard something about this white powder in the mattress giving asthma people problems can anyone speak to that?? just read an article that talked about how these mattresses produce a white powder or dust that is inhaled by the even some of your retailers are now speaking against this bed for that same reason.? 42. Purple also has just discovered that HMR now is paying advertising fees to push its false and misleading Blog posts about Purple to Purple?s potential customers. In fact, it appears it is paying more to promote the anti-Purple posts than for any other post based on the fact that the usual number of comments is around 10, and for the sponsored posts about Purple there are over 100 comments. An example of a true and correct copy of what is found on the internet is set forth on the next page: Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 11 of 12 Paul Dell This is suspiciously being promoted on Facebook. Who is bankrolling - this promotion? What is the profit motive? Like - Reply 011 . February 1i at 5:35pm ?31 ?91 Honest Mattress Reviews We boost all of our content: daily. Minimal income from google adsense Like Reply - February 11 a15:41pm Paul Dell Okay, then why don?t you spend some of that money on doing some simple tests on this powder? Or is exploiting the fear it's mystery status creates more important? Like - Reply - 2- February 11 at 5:43pm Honest Mattress Reviews Paul Dell It's the responsibility of the company to conduct tests. Most tests will quickly identify the substance. What our concern is the long term affects with this intended use. That could take years to test. Like . Reply 01 i February 11 at 5:46pm Paul Dell Uhm. as a chemist I can tell you that it would take a very minimal amount of time and effort to discover the identity of this substance. Plus long term safety information is already available for most substances commonly used in manufacturing. Ever See More Like - Reply? 6 - February 11 at 5:50pm Honest Mattress Reviews Paul Dell please share the MSDS with us. We will publish them immediately. And, as a chemist, you should be familiar witt'i intended use Like - Repty- February 11 at 5:59pm - Edited Key Good So if you are only getting minimal income from Google Ad sense. how are you affording to boost all of your content on Facebook daily? That's not cheap. Like - Reply? 03 February 11 at 6:06pm - Edited Honest Mattress Reviews Kay Good facebook is the most cost effective means of content distribution on the planet Like - Reply. February 11 at 6:07pm Key Good Yes. I have bought Facebook advertisements before and I don?t understand how you could be paying to boost all of your content just based on "minimal income? from banner ads. Also, I worked for a media company before and it was certainly not policy to boost all content. Something about this is very ?shy. Like - Reply O1 - February 11 at 6:12pm - Edited Honest Mattress Reviews Kay Good as you know. google pays based on quality of traffic and click thru rates. So what we make we invest back to reach a greater audience. If you worked for a media company that didn't boost posts for clients you were doing them a disservice based on organic reach. Like - Reply- 01 - February 11 at 6:14pm 9 View more replies Write a 10 Case 2:17-cv-00138-DB Document 8-2 Filed 02/27/17 Page 12 of 12 43. Upon information and belief, Monahan maintains an office at or still does work for GhostBed and can be reached by calling the number posted on GhostBed?s website. 44. Because Purple relies heavily upon an e-commerce platform for selling its bedding products to its customers, its online reputation and goodwill are of critical importance to its success. 45. The false and misleading information being spread on the internet threatens ample harm to Purple, including Purple?s growth rate, causing harm to our goodwill, loss of market share, the loss of sales diverted to our competitors, and harm to our ability to attract employees and obtain capital. In accordance with 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. DATED this 1_1 day of February, 2017. 11 Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 1 of 7 Exhibit Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 2 of 7 Bed-in-a-Box Startups Challenge Traditional Mattress Makers Flat pricing, free shipping and returns attract shoppers loath to step into a showroom. Tempur Sealy takes a page from startups’ playbook. A Tempur Sealy Cocoon mattress is prepared for compression. The Cocoon line will be sold at fixed prices—$549 to $999 depending on size—through a dedicated website. PHOTO: BOB MILLER FOR THE WALL STREET JOURNAL By SARAH NASSAUER Updated March 7, 2016 3:04 p.m. ET 48 COMMENTS When Will Haley decided to buy a king-size mattress, he did what he does when he needs a new computer or baby diapers: he bought it online. Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 3 of 7 Never mind that the mattress cost $950, and he wasn’t going to be able to try it out. “I just didn’t want to go to a showroom,” says the 36-year old software developer and father of three from Rocky Mount, N.C. “That is the last place in the world I want to take my kids.” HOW WE SHOP A continuing series on how changes in Americans’ shopping habits are forcing radical shifts across retail and other industries.  E-Commerce Boom Roils Trucking Industry Mattresses were long considered immune to the e-commerce boom. For decades, they have been sold in showrooms full of dozens of styles with dizzying discounts and high-pressure salespeople. But a new breed of upstarts with slick websites has cracked into the $14 billion U.S. mattress industry. The online sellers offer just a few varieties at fixed prices—and ship free to customers’ doors a foam mattress that is compressed into a box the size of a large suitcase. Industry incumbents aren’t taking the new challenge lying down. Tempur Sealy International Inc., the world’s largest mattress manufacturer, this week will start selling its own bed in a box, called Cocoon by Sealy. It will be sold at fixed prices—$549 to $999 depending on size—through a dedicated website. It comes in two models: soft or firm. From the Archives 0:00 / 0:00 With names like Leesa, Keetsa and Casper, a flurry of startups are trying to shake up the bedding industry, often by offering just one or two mattresses at a stable but premium price. WSJ’s Charlie Wells reports. Photo: Lessa.com (Originally publised Sept. 30, 2015) Mr. Haley bought his bed from Casper Sleep Inc., which sells one type of mattress. The size determines the price, from $500 for twin to $950 for king. Casper’s approach is one of simplicity and convenience, not coil counts and pillow tops. The company generated $100 million in sales last year, its first full year of operation. Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 4 of 7 Casper and other newer companies, such as Leesa Sleep and Yogabed, have designed sites tailored for smartphones that require a few clicks to order. In place of the chance to try out a $5,000 Tempur-Pedic with adjustable base or lie down on a $2,500 Serta iComfort with gel memory foam, they promise free shipping, 100-day guarantees and free returns. 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. ‘I just didn’t want to go to a showroom’ —Will Haley, a 36-year old software developer and father of three Two-year-old Casper and its rivals represent 2% to 3% of the U.S. market but they are proliferating. “I’ve counted thirteen [startups], most of which have popped up in the last two years,” says Peter Keith, a retail analyst at Piper Jaffray who studies the bedding industry. “I think it’s a channel we should be in and it’s a market, we just don’t know how large it is,” says Scott Thompson, CEO of Tempur Sealy. The majority of customers want to try out a mattress, and it is likely to stay that way for a while, he says. Still “we used to say people would never buy a car without driving it, but there are people buying cars without driving,” he says. Most mattresses bought in the U.S. cost under $1,000, but mattresses that cost more than $1,000 account for over half of the industry’s sales in dollars, according to Tempur Sealy. Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 5 of 7 More than a year ago Tempur Sealy peeled off “a younger group of people” within the company to examine the growing interest in mattresses sold online for under $1,000, says Mr. Thompson, who joined the Lexington, Ky., firm in September. Executives said, “Go ahead and attack this market. Don’t worry” about upsetting the company’s retail partners, says Mr. Thompson. The move took courage, says Mr. Thompson. Last year, 91% of Tempur Sealy’s revenue came through chains like Sleepy’s, Macy’s Inc. and Costco Wholesale Corp. “You have traditional organizations that could look at that product as a threat,” he says. To give mattress stores a way to benefit from Cocoon, Sealy will give its retail partners the option to sell the bed-in-a-box via a link on their own websites and pocket a cut of sales, says Mr. Thompson. But the company’s biggest retailer isn’t interested. “I don’t think it’s something we would look to Sealy for,” says Ken Murphy, president of Mattress Firm Holding Corp., the largest mattress Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 6 of 7 retailer in the U.S. with around 3,800 stores. The company, which also owns the Sleepy’s chain, started selling its own Dream Bed online last fall. After the compression and vacuum seal are applied, a flattened Cocoon mattress is tightly rolled by a machine and boxed for shipment. PHOTO: BOB MILLER FOR THE WALL STREET JOURNAL Tempur Sealy has sold beds in a box and mattresses online, but mostly through retailers or traditional websites, says Jill Johnson, brand manager for Cocoon, one of the four employees first put on the team. It didn’t offer a simple purchase and delivery process, or aspirational lifestyle, she says. The target customers are younger, often going through life changes that spur them to upgrade their just-out-of college mattress, perhaps a marriage or baby, says Ms. Johnson. The team tested four brands in consumer focus groups, standing behind one-way glass as potential shoppers examined mattresses labeled “Drift,” “Nod,” and “Doze.” Compressed mattresses promise high margins because they are cheaper to ship than inner spring mattresses that can’t be compressed, says Joe Van De Hey, chief executive of C3 Corp., a maker of mattress-compression machinery. Because of how carriers like FedEx and UPS charge, delivering a 90-pound compressed mattress is less expensive than home delivery with a regular truck, he says. Case 2:17-cv-00138-DB Document 8-3 Filed 02/27/17 Page 7 of 7 MORE IN BUSINESS     Kraft Withdraws $143 Billion Offer for Unilever February 19, 2017 Kraft Drops Unilever Bid February 19, 2017 Unilever Chief Raises the Defenses as Kraft Heinz Circles February 19, 2017 May to Meet Peugeot CEO Amid Concerns Over Vauxhall February 19, 2017 Returns, however, are a challenge. Most bed-in-a-box upstarts offer a free-return policy, but work hard to keep returns low since that requires sending someone to haul away what has expanded into a very large mattress. In the past Casper sent out a topper, or top cushion, to customers who called to complain about the feel of their mattresses but found it didn’t reduce returns, says Neil Parikh, the company’s chief operating officer. Instead it has worked to improve the product to reduce returns, Mr. Parikh says. He declined to disclose Casper’s return rate. “Returns are an issue for this distribution model. We have guarantees that we will come and pick it up,” says Mr. Thompson of Tempur Sealy. “Getting the bed back in the box, that’s a little bit of a problem.” Write to Sarah Nassauer at sarah.nassauer@wsj.com Case 2:17-cv-00138-DB Document 8-4 Filed 02/27/17 Page 1 of 6 Exhibit Case 2:17-cv-00138-DB Document 8-4 Filed 02/27/17 Page 2 of 6 https://www.honestmattressreviews.com/purple-mattress-powder/ Case 2:17-cv-00138-DB Document 8-4 Filed 02/27/17 Page 3 of 6 Share on Facebook Share on Tmtter Over 2,0t )0 3-Star Revxews limit] (\li?iil 70% Less Than Tempur-Pedic 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 Reviews - - . - nLiteOnPu'pe awesome! We wall share that with our audience! RS. Adam never responded to our email @honestmattress They respond if they are interested in doing busmess 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 powder. Paul Fredrickh 453% I 453% I 53% 463% . 'i I DID YOU SEE Mattress Firm Hires Sicily Dickenson As New CMO ALL THE AND Access All Of The Deals - Clidt Here Case 2:17-cv-00138-DB Document 8-4 Filed 02/27/17 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. PURPLE PILLOW .99 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. is THE HYPER-ELASTIC (POLYMER). OR THE PURPLE After multiple calls, we finally received their 'material information documentation". "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"'I is hypoallergenic and non-toxic. For the bottom two layers, we use premium high-density conventional (not memory) foams, which include: 3.50 inches of 1.8 medium-soft comfort layer SHARE YOUR NEWS OUR AUDIENCE Ready?0kk?ere1?o Learn More Honest PR Platform I ACTIVE KICKSTARTER PROJECTS Perso Zo?ne re ?5 KICKSTARTER Bid-Nb 9239' KICKSTARTER . 5. Case 2:17-cv-00138-DB Document 8-4 Filed 02/27/17 Page 5 of 6 4.00 inches of 2.0 lb.u?ft3 medium-firm support layer All of our foam is certified by :Zert FUR-J53 . approved foams are environmentally friendly and safe for users. I invite you to go to Cert 25 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 tl' 5 ate by the U.5. CPSC. The important thing to know about Purple is that unlike many other manufacturers. we use no chemicai treatments to achieve this standard. Instead we use a special flame barrierfabric with unique non-toxic fibers that naturall?,r slow flames. Both our flame barrier fabric and our glue are lei-RE: :I-o :Iertfec." 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 coverfabric content is as follows: Knit Fabric: 29% Viscose. EPA: Polyester. 4% Polyester-Lycra. weight gfm2. The non-skid bottom panel is made of polyester. Purple proudly manufactures the Purple? Bed in the USA. 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 worid-ci'ass 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 wa 5.. ?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 ca use Ovarian Cancer. We?ve been reassured that Purple does NOT use Taicum 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 1i3 of their lives over the next years with this powder directly touching their skin or even potentially inhaling. Major Key: Marketing Product Quality Disclosing Information F. KICKSTARTER FUTD LAB I STAN Honest Mattress 1.401 izes ll Like Page 0 Learn More "e c? yer "ends to (E115 I LATEST REVIEWS Amorebeds Mattress Review it Nmoe bed Mattress Review GhostBed Mattress Review 9 i i i i 11?? Case 2:17-cv-00138-DB Document 8-4 Filed 02/27/17 Page 6 of 6 NOTE: We would still LOVE to talk to Alex or any other team members at Purple. Simply email and mm content will be published, unedited in the format QKICKSTARTER FUTO 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. Gid< hereto shop Purple 0 KICKSTARTER Tom PEARCE Best Reviewed Ma_ttress__ What Do You Think? Share Your Opinion .. A, 1 Comment Sort by Oldest . I STAY CONNECTED Honest Mattress REVIEWS 1,401 H96 Alinda De La Cruz - ~'limat rs the Cant someone Just have it tested? I) Like Page 0 Loam More a Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 Page 1 of 9 Exhibit Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 Page 2 of 9 KWWSV ZZZ KRQHVWPDWWUHVVUHYLHZV FRP SXUSOH PDWWUHVV ZKLWH SRZGHU Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 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 makes. been assured from Purple that the chemical powder that covers their products is "food grade' and "non-toxic?. Euutr as one of our core beliefs at Honest Reviews revolves around a single question. 'Does this benefit the r?r 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 exactlv is this mysterious powder. The information is not readilv 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 tried the most direct route to receive an answer by simply calling and asking. amazun I DID YOU SEE Mattress Firm Hires Sicily,r Dickens-on As New CMO 4\ THE HYPER-ELASTIC OR THE PURPLE As you can clearly see there is a tremendous amount of powder coating the internal "vaer- DISCOUNTS Elastic All THE BEST AND PROMOTIONS Access All OHM Deals - Click Here SHARE YOUR NEWS OUR AUDIENCE Ready? [lick Here To Learn More Honest PH Platform WEBSITE PURPLE MATTRESQALES PICTURE Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 Page 4 of 9 . I l?t?xw?; 3 WEBSLTE PURPLE PILLOW SALES PICTURE 3 CUSTOMERS PURPLE MATTRESS I KICKSTARTER PROJECTS 0 KICHETARTER CELESTIAL TFIIBE Veer Parsenql. the Cr?al?l?" KICKSTARTER CAMBRIDGE SOUND MAME-G wee. C- I STAY CONNECTED - Honest Mattress Reviews Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 Page 5 of 9 . .w 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-lipped 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 like a silly question to ask when talking about a product that's sold tens of thousands of mattresses pillows. E-utf after spending some time to investigate what F'urple's materials consist of this is what we found. ?3 KICKETARTEH FUTD LAB I CONN Honest Mattress Reviews 1.4m lies a Loam Mote Arnoreheds Mattress Review it Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 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 inyolyes understanding what's used in this ?hyper-elastic polymer?. Hyper-Elastic Polymer is a fancy marketing term trademarked by LLC. I."Ilhat does it really mean? ?Plasticized elastomeric gel material sold as an integral component of cushioned products, namely, seat cushions and mattress toppers.? 2. cl- l'ere to see tl'e tracer?erl- or. Pla sticized 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 Purple's top layer is synb'ietically produced plastic in a gel consistency. One major key that isn't included or very easily found via Purple's documentation is that they do not utilize new materials to malre this plastic layer. Rather, they use recycled manufactured products. Bottom Two Layer Premium high-densityr conventional {not memory} foams. Many times in the construction of mattress you will see terminology describing the middle and bottom layer as 1premium high?densityr foam. This is a well?branded way to describe what is simply ?base foam?. Its sole purpose is to provide supportto the top layers and to distribute your natural body weight. You will 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. E-ase foam is rated based on the density of the foam used. The heayier 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 highdensity foam support layers below. Aside from the plastic being made from recycled products, it seems to checlr 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?ye told us multiple times it?s either approved food?grade'r or ?Food-Contact Grade.? 0 KICKETARTER FU TD LAB 0 KICKETARTE TONY PEARC I STAY CONN Honest lrlattress Reviews 1.4101 Utes ll Like Page 0 Learn More Elet"ef'5'. ofyoxf'ems tc- 1" 5 I LATEST REVIEWS Amorebede Mattress Review 1' ii Noyes bed Mattress Review *iit? Math-1:: Review Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 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 reiief was short iived once we read the definition of approved?. Determining the Reguiatory 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 premarl-cet 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. C?h'ck 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 tabiet form in smlai'iI controiied doses may have very different outcomes regarding the effect on a human body or whiie inhaied for eight pius hours a night whiie you sieep. Multiple the hours you sleepr 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? 1? 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) dor 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. On the contrary, if they do not have scientific proof from muitipie credibie sources that confirms the use iong-term use of this substance with Purpie's intended use, (to reduce the sticking of the piastic grids) as safe for iong-term contact and inhaiation then we feelI they are reciriessiy predisposing consumers to an untested substance that couid directiy impact one's short or tong-term heaith. When we asked hyper?specificaiiy 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? 9 KICKETARTER FUTCI LAB 0 KICKETARTE TONY EARC I STAY CONN Honest Mattress Reviews 1.401 Uses 0 Learn More Amoreheds Mattress Review 1' it Noyes heel Mattress Review i it 13? Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 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 obyious like a glass, a can for soft drinks, but also machinery in a food factory or a coffee machine. Food contact materials can be constructed from a variety of materials like plastics, rubber, paper, coatings, metal etc. In many cases a combination is used; for example a carton box forjuices can include [from the inside to the outside): plastic layer, aluminium, paper, 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 sma?' microscopic powder and inhaled for eight to ten hours a night over the course of the mattresses iifespan. Powered, eyen powered sugar or cinnamon can cause irritation of the lung after inhalation. ?Natural" approyed" is not always safe. Just because cinnamon is a naturally-occurring spice it's haryested 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 Safe, or GRAB, list. But the FDA is siient on spice inhaiation. 1 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 indiyidual. The ingestion of the (cinnamon) powder inyariably 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 (LS. Poison controi this year atone. KICKSTARTER FUTO LAB KICKETARTER TONY PEARCE I STAY CDNNEETE Honest Mattress Reviews 1.401 lites II Like Page Learn More Elet'ei'51oiyoJ'T'E'dsto tens I LATEST REVIEWS Amorebeds Mattress Review it it? Novosbed Mattress Review GhostBed Mattress Reviewl Case 2:17-cv-00138-DB Document 8-5 Filed 02/27/17 Page 9 of 9 Inyersely, Purple's prior and current business practices inyolye deliberately choosing 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 a re subjected to. When you look on Purple's website, their high-resolution product images do not show the final product they are shipping. We belieye this is a deceptiye business practice that could potential irritate or even impact they health of tens of thousands of unknowing consumers. In a consumer safe perfect world, Purple would willing disclose the substance, include it on their law tag and have a warning to consumers before the point of purchase. NOTE: We wouto' LOVE to tail: to Ate): or any other team members atPurpie. Simpty emaii and your content Witt be pubiisheo', unedited in the format submitteo'. Your content then be syndicated via our website and sociai meo'ia channeis. Piease be aware, to provide compiete transparency, everything you submit Witt be pubiisheo'. Shouio' you provide ao?o?itionai information we wouio' be more than happy to update this articie. Click hereto shop Purple Products 3 KICKETARTER FUTO LAB KICKSTARTER TONY PEARCE emcee?- I STAY CONN Case 2:17-cv-00138-DB Document 8-6 Filed 02/27/17 Page 1 of 4 Exhibit Case 2:17-cv-00138-DB Document 8-6 Filed 02/27/17 Page 2 of 4 https://www.honestmattressreviews.com/purples-unknown-powder/ Case 2:17-cv-00138-DB Document 8-6 Filed 02/27/17 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 Take A Tour Tlirmnlii Purple 2 Mattress factor; in ?(an I What i I'lmt nu Purpi'e Hummus} I 4 (We?re? Invest/alarm]: .?ur/I/w Mattress 8 ?.unlrar 6 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 with the plastic grid walls as they stick together. Mattress Firm Hires Sicily Dickenson As New CMO All THE AND PROMOTIONS Access All Of The Deals - Click Here SHARE YOUR NEWS Case 2:17-cv-00138-DB Document 8-6 Filed 02/27/17 Page 4 of 4 Success and rapid growth is no excuse for potentially subjecting consumers to a powder that could impair or even impact their physical health. ?eady?ClickHereToLearnMore pH 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 is I ACTIVE KIEKSTAETER PROJECTS more valuable tha short-term moneta ry gain. 0 KICKETAHTER ESTIAL TRIBE With that, we regret to inform you that until Purple Mattress discloses to consumers "(11w PEPE-QMI 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 0 SOUND M?i?hh? your mattress before you complete your purchase. We're not saying that you should a i not buy a Purple Mattress. What we are clearly saying is that until consumers are 4 properly informed of this substance we are revolting our recommendation. PLAY NOTE: We would still LOVE to tall: to Alex or any other team members at Purple. Simply email and your content will be published, unedited in the format 0 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. QKICKETAHTER FUTD LAB Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 1 of 12 Exhibit Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 2 of 12 KWWSV ZZZ KRQHVWPDWWUHVVUHYLHZV FRP SXUSOHV DFNQRZOHGJHPHQW ZKLWH SRZGHU Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 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}. We've been a huge fan of Purple's innovative and disruptive marketing approach. We also backed and supported their record Kickstarter campaign. Need proof? Look at all of these posts. Honest Reyiews Coverage 0f Purple If this Powder is completely brand new to you here are some reference articles What Exactfy Is That White Powder On F'urpfe's Mattress? A Deeper Investigation Into F'urpie Mattress F'iHo ws White Po wrler Due To Purpie's Unknown Powder We ?re Revoking' Our Endorsement a company, regardless of size, elects to sell consumer products they wil ingly enter into a social responsibility commitment with their customers. Thus, every business innatel'y inherits the highest ievei of regarding consumer safety. Although we completely disagree with your secretive approach to consumer safetyr hiding behind ?propriety powder,? we do directly pose this question to you IW'hat 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. What 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 soiel'y on your written word. Everything we do here at Dc'ple centers on our customers. We wan: everyore's life to so made better 3y this one-of-a-Hinc technology We encourage a l?ealtl?y and reap}; lilesiye t'irough our promcrs. Simply 5EllCl. we wan: you feel better and we oelieve can help. hhe hf I SEE .?rmM Mattress Firm Hires Sicily Dickenson As New GMD All bESl ANDPROMOHONS Access All Of'l'he Deals - Click Here Case Document 8-7 Filed 02/27/17 Page 4 of 12 I It took 1 59 days of inqui for you to acknowledge it; please forgive us if we?re not willing to to you at your trusted word. Your track record continues to show a reactive transparency approach. You only began to acknowledge customers if they contact you (in regards to the To dater you still do not include this information directly on your product information page [see screenshot below). 1I"ou claim, ?Everything we do here at Purple centers on our customers" when will you be honest and upfront about the use of this in a microscopic powder forln that could be inhaled? Don't customers have a right to be informed? We have "ramire'y :na: the mattress to acc pu:s It No We solopnc, pamagirq?teet giant pupae burnzo that was beco'?e wit" cor'ifort. However cue to We nature of GLF l?ypor-lzastc Downer?. we lcrew written some so?: of coetnc L: wole stics to .159} owe o?cof l2"L? presso'c of To ro.lirg 'rat."Lr1ery. T"is is W'icrc on; toxic slast'c powder comes We now coat our Duroef??. ?natt?ess ard t'at go t"?oug" e. :ig'it-ccmp'essuo" grower. ?r?duj,? Lizm' lo dour sl'iguir?g wil? our toxii, :Idstc pun-Lit," p'uuvni Hyder-LastLC Polyme?? f?o'r stickirg to .tsef lla?l WHERE DO YOU CLEARLY EXPLAIN THE USE OF OUR Mf?ichueToLum Hmest PH Platform I KICKSTARTER PRO: id KIEKETARTER rPerse . lone Cr?bf - I- J: MARAE ll!" nan. PLAY -9m 0 at KICKSTARTER LAB I STAY connec?reo Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 5 of 12 We understand that when a product experiences an unforeseen problem that adjustments might have to be made. Consumers understand andI also seek a solution. 0 KICKETARTER FU TCI LAB Here's where the issue arises. Since you're not willing to educate and pre?disclose [at the point of sale); a} the existence b} what it is or c) that's it's proyen safe QKICKETARTER 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 consumers. Science is rooted in truth and proven fact. I 5an .For a company that claims to he Super Sclencey, you continue to neglect a few very Honest tiiattress Reviews scientific components (such as material disclosure}, that you clearly don ?t see as 1,401 mm important per your comical response. Purple: So Science}.f It'll Put You To Sleep - YouTu be II Learn Mm Foo 4.2316 UL: try Purule oi'goxi'e?ds 5 See how Purplo's hyper-elastic ooh-mer will gut-e you the hem mgh?rs sleep you y'i have ever had! Purple. . Ian-um? You also seek sympathy In protecting EIZIIZI Jobs and In your trade secrets which provides you I LATEST REVIEWS some form of shielding from disclosure. Our scientists didn't just solve the problem. they,r found a sale option in doing so and have applied for a patent. Until the patent is i55ued, Purple is keeping the exact type of pastic a ?trade secret" whicr helps protect the jobs of those 600 people from competitors who wow-:1 love to ?gure out how to do w'iat Purole does. But know that it is a ire-r3.r common type of elastic used in many human-touch products even in products for children. Amorebeds Mattress Review ii But, your processes is pa ten ted and protected. If it wasn 't already protected intelliBE?l wouldn 't have to have this disclosure on the footer of their website. After all, they use Mattress Review the same technology or process, right? It says it's licensed to a company owned by if Ton Pierce. Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 6 of 12 intelliE-ED's Footer, IS A REGISTERED TRADEMARK DF E, LLC oF ALPINE, UTAH USA. PRDTECTED 0v U.S. PATENTS 5,749,111, 5,025,527, 5,413,450, 7,050,213, 7,075,022, IS A REGISTERED TRADEMARK DF INC. DP SALT LAKE UTAH Purple-'5 Footer, ?Protected by one or more of U.5. Patents 5,249,111; 6,026,521; - - purpie 7,075,022; 7,730,555; 7,023,233; 7,027,535; 7,954,554; 0,507,307, and 9,051,159, with others pending. Purple and all product names comprising Purple, Hyper-Elastic Polymer, and No Pressure are trademarks of E, LLE of Alpine, Utah I STAY CONN EUED - Ant-ch-uu-w-a .t-u-Inl'hh: ?Il'ulvl 1? Mr? 'r Honest Mattress Reviews 1,491 ?res Purple's publication is proof of hva naive they 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 Pur Ie's ?m use case (coating mattresses and pillows) it could be inhaled irectly into your lungs, is downright insulting. ?It is a food-contact?grade materiai, ?mm meaning that this family of piastic materiais can be used for eating utensils, children ?5 toys, etc. Amorebede Mattress Review You can think of it being as safe as Hm: eating with a plastic fork, so you can rest easy on our bed! In fact, it may be ?He even safer?no Purple product ever . GhoStBe-d Mattress Review Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 7 of 12 stabbed anyone in the lip!? - PURPLE EDA INTENDED CONTACT GRADE USEAGE USE CASE NUMBER t3 KICKSTAHTER TONY PEAREE sums roan - - pumie KUCHUP APPROVED STORE KHCHUP NUT INHALE THE 5mm I run mrmom mun comm GRADE usmeg USE CASE NUMBER 2 I LATESTREVIEWS SAFE TO USE INGEST EGGS Amorebeds Mattress Review tit Hm APPROVED Io USE mm mun ~01 mum THE r000 comm GRADE USEAGE . A: Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page MAKEUP AS 9 KICKETARTER FU TD LAB I STAY CONN Honest Mattress Reviews 1.401 likes ll Like Page 0 Learn Mare I LATEST REVIEWS Amorebeds Mattress Review 1' it Mamas tied Mattress Review it it 11' com THE ENTIRE 435-: 3:333:15:an 4- Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 9 of 12 PURPLE HAS TAKEN THE DEFINITIVE POSITION THAT CDVERINE THEIR MATTRESS AND IN THIS PLASTIC PUNDER INHALED EUR THE DURATION {if THEIR IS THE EDUIVALENT 0E EATING A PIASTIC PORK. YES, SAEE TO EAT NITII A PLASTIC FORK. PURPLE CONSUMERS EATING IN DED - THEIR INHALING THE MATTRESS. PLEASE DISCLUSE THE SCIENTIFIC PRCIDE THAT INHALING THAT PLASTIC WILL NOT INDUCE ANY CIR RESPIRATORY IRRITATION. DNCE RECEIVE THIS PRDDE TIE HILL UPDATE OUR IMMEDIATELY. PLEASE SHARE ACCREDITED THIRD STUDIES THAT SHUTI SCIENTIFIC EVIDENCE SUPPORTING YOUR PDSITIDN IN A TEST EIGHT USE PER NIGHT. ONCE RECEIVE THIS PRUDF TIE HILL UPDATE OUR REVIEH IMMEDIATELY. Your blanket statement quoted above is like saying ?Gas is safe in a carr so inhaling gasoline must also be safe." Obviouslvr vou're not using gasoline but it's an example that a different use cases a productr chemical or substance can have verv different effects. Intended Use is the issue at hand. Mereiy acknowledging existence (oniy after constant questioning) is not putting consumer safety first in our opinion. is a direct contradiction of Iyour published response {againr see here). Everything we do here at centers on our customers. We wan: life to be made better by this one-of?a?liintl We encourage a healthy and happy lifestve tnrough our propucts. Simply said we want you feel better and we believe Purple can help KICKSTARTEH 3UTO I STAY CDNNECTE He ne st Mattress Reviews 1 .4I31 Rte-s II Ulie Page 0 Learn More 35 "-51:15 1-: est" I LATEST REVIEWS Amrebeds Mattress Review it Noun-s bed Mattress Review i it 13? GhostBecl Mattress Review . i i i i 13? Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 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 being as sale 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 stabbed anyone in the lip! 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? 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 every employee? Qn'iBtESl'y' KICKSTARTER FUTCI LAB Qn'iCQSl'v' a KICKETARTER PEARCE amnesty- I STAY CONNECTED Honest Mattress Reviews 1.4m lites Like Page 0 Learn More Elet'iel's: of yoJ'l'e'ids to (611E Ital?WE? I LATEST REVIEWS Amorebeds Mattress Review *it Nouns bed Mattress Review GhostBed Mattress Review Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 11 of 12 MEWI (5 KICKSTARTER FUTD LAEI I STAY CONNECTED Honest Mattress Reviews 1.1191 ?es I Like Page 0 Lean ?are I LATEST REVIEWS Armrebeds Mattress Review i i News tied Mattress Review GhostBed Mattress Review Case 2:17-cv-00138-DB Document 8-7 Filed 02/27/17 Page 12 of 12 1 (?In 0 KICKETARTER FUTCJ LAB 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 integrityr 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. Dnce 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. NOTE: We would still LOVE to talk to Alex or any other team members at Purple. Simply email I and your content will be publishedr unedited in the format submitted. Your content will then be syndicated via our website and social media channels. Honest Mattress Please be awarer to provide complete transparency, everything you submit will be published. 1-491?3?? Should you provide additional information we would be more than happy to update this article. Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 1 of 21 Exhibit 2/20/2017  Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 2 of 21  GET YOUR PRODUCT REVIEWED VISIT HONEST REVIEWS UK Get  Notifications  Reviews Industry Talk Comparisons Pillows Sleep Tech Pet News Coupons  15 NEW ARTICLES Home  Breaking News  Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? BREAKING NEWS INDUSTRY NEWS Do Ma湞ress Reviewers Have A Responsibility To Acknowledge Consumer Safety? By honest mattress reviews https://www.honestmattressreviews.com/mattress­reviewers/  12 min read 1/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 3 of 21 Get  Notifications MATTRESS REVIEWERS HAVE A RESPONSIBILITY TO ACKNOWLEDGE CONSUMER SAFETY      A doctor is required to take the Hippocratic Oath before officially becoming a doctor.  Reviewers possess a unique, influential power that if misused could unintentionally (or intentionally) steer a consumer into the wrong decision. In this oath doctors truly commit to the mindset, “First do no harm.” Followed by humility, “I will not be ashamed to say “I know not.” DID YOU SEE THIS? https://www.honestmattressreviews.com/mattress­reviewers/ 2/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 4 of 21 Finally, orally confirming, “Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course.” Get  Notifications We Received Something BIG To Review Today – Something HUGE! Now, 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 honest, unbiased opinions the importance of a Reviewer Integrity Oath should now be the leading emerging topic amongst reviewers.  We’ve taken it upon ourselves to draft the first version of a Reviewer Integrity Oath.  We will publish this seeking the input of other top reviewers as this will be a collaborative effort to create a fair, truthful and sincere review general guidelines. Do Mattress Reviewers Have A Responsibility To Acknowledge 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 best­rated mattress ACTIVE KICKSTARTER PROJECTS on the internet. Rather, our mission at https://www.honestmattressreviews.com/mattress­reviewers/ 3/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 5 of 21 Get  Notifications 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. KICKSTARTER  CELESTIAL TRIBE   PLAY In recent days we’ve published research information regarding Purple’s use of “Plastic” powder. KICKSTARTER  CAMBRIDGE SOUND MANAGEMENT  Reviewers behavior and actions will stand as the precedent for consumer interests moving   PLAY forward.  We have a long 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 KICKSTARTER  FUTO LAB promote the Purple Mattress. As more companies enter the direct to consumer mattress space its the   PLAY responsibility of each individual company to ensure the products they ship are completely safe. 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. KICKSTARTER  TONY PEARCE   PLAY As each of these mattress reviewers has longstanding https://www.honestmattressreviews.com/mattress­reviewers/ STAY CONNECTED 4/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 6 of 21 STAY CONNECTED credibility within this industry as subject matter experts we pose Honest Mattress Reviews this question to the industry’s top 1,401 likes reviewers. Like Page Get  Notifications What is your position on Purple’s use of a plastic powder without any clear and concise evidence this is safe under these conditions? Learn More Be the first of your friends to like this LATEST REVIEWS Mattress Insiders Amorebeds Mattress Review   Copyright Mattress Insiders  Novosbed Mattress Review   GhostBed Mattress Review The Sleep Sherpa     Copyright The Sleep Sherpa https://www.honestmattressreviews.com/mattress­reviewers/ 5/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 7 of 21 Honest Revi… @honestmattr…  Follow Get  Notifications Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? @thesleepsherpa What Are Your Thoughts  honestmattressreviews.com/mattress­ revie… 11:53 AM ­ 16 Feb 2017        Sleepopolis Copyright Sleepopolis Honest Revi… @honestmattr…  Follow Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? @sleepopolis What Are Your Thoughts  honestmattressreviews.com/mattress­ revie… 11:53 AM ­ 16 Feb 2017 Do Mattress… https://www.honestmattressreviews.com/mattress­reviewers/ 6/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 8 of 21 We also believe it’s the responsibility of honestmattre…        Get  Notifications 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 long­term integrity is more valuable than short­term 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 https://www.honestmattressreviews.com/mattress­reviewers/ 7/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 9 of 21 value consumer knowledge and safety far greater to our organization that funny videos and made up tests. Once Purple publishes supporting Get  Notifications 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 On Purple’s Mattress?  A Deeper Investigation Into Purple Mattress & Pillows White Powder  PSA – Due To Purple’s Unknown Powder We’re Revoking Our Endorsement  Purple’s Acknowledgement Of The White Powder STILL Misleads https://www.honestmattressreviews.com/mattress­reviewers/ 8/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 10 of 21 Consumers NOTE: We would still LOVE to talk to Alex or any other team members at Purple.  Simply email Get  Notifications hello@honestmattressreviews.com 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. Click here to shop Purple SHOP NOW MATTRESS COMPARISON REVIEWS COMPANY VALUE SLEEPER BODY QUEEN RATING POSITION TYPE https://www.honestmattressreviews.com/mattress­reviewers/ SIZE HONEST REVIEW 9/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 11 of 21     Get  Notifications $4699 Review $1199 Coming Soon $795 Review $999 Review $825 Review $1499 Unboxing                     https://www.honestmattressreviews.com/mattress­reviewers/ 10/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 12 of 21     Get  Notifications $1099 Unboxing $849 Unboxing $1050 Coming Soon $599 Coming Soon $850 Coming Soon $1200 Coming Soon                     https://www.honestmattressreviews.com/mattress­reviewers/ 11/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 13 of 21     Get  Notifications $770 Review $549 Coming Soon $399 Review $2599 Review $849 Review $1099 Review $950 Review                     https://www.honestmattressreviews.com/mattress­reviewers/ 12/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 14 of 21     Get  Notifications $750 Coming Soon $849 Review $850 Review $940 Review $600 Review $625 In Progress $499 In Progress $374 In Progress                   https://www.honestmattressreviews.com/mattress­reviewers/ 13/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 15 of 21   $750 Coming Soon $999 Review   Get  Notifications TBD TBD $1349 Starting Soon Personalized TBD $900 Starting Soon TBD TBD $750 Starting Soon TBD $649 Starting Soon TBD TBD $369 Pending TBD TBD $499 Pending TBD TBD $700 Pending TBD $749 Pending TBD TBD $799 Pending TBD TBD $799 Pending TBD TBD $849 Pending TBD TBD $849 Pending 12" Miranda Medium Coronado TBD https://www.honestmattressreviews.com/mattress­reviewers/ 14/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 16 of 21 Get  Notifications TBD TBD $875 Pending TBD TBD $999 Pending TBD TBD $999 Pending TBD TBD $1099 Pending TBD TBD $1399 Pending TBD TBD $1475 Pending TBD TBD $1500 Pending TBD $2499 Pending TBD $2519 Pending TBD $2800 Pending TBD $3300 Pending TBD $3499 Pending Gel Elite TBD Lux Estate Gallium TBD Emerald Gel TBD The Geneva TBD Dream Supreme II TBD https://www.honestmattressreviews.com/mattress­reviewers/ 15/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 17 of 21 DUX 8008 TBD TBD Pending TBD Get  Notifications Media Outreach Honest Revi… @honestmattr…  Follow Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? @ConsumerReports What Are Your Thoughts  honestmattressreviews.com/mattress­ revie… 11:55 AM ­ 16 Feb 2017        Honest Revi… @honestmattr…  Follow Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? @MLTellado What Are Your Thoughts?  honestmattressreviews.com/mattress­ revie… 11:55 AM ­ 16 Feb 2017 Do Mattress… We also believe it’s the responsibility of https://www.honestmattressreviews.com/mattress­reviewers/ 16/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 18 of 21 honestmattre…        Get  Notifications Honest Revi… @honestmattr…  Follow Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety honestmattressreviews.com/mattress­ revie… @WSJ @nytimes @Forbes @FurnitureToday 12:11 PM ­ 16 Feb 2017        Disclaimer Tags Purple Mattress Purple Mattress Powder      https://www.honestmattressreviews.com/mattress­reviewers/ 17/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 19 of 21 Get  Notifications Sapphire Preferred Card Up To 2x Bonus Points. No Annual Fee First Year. No Blackout Dates. Apply Now! Previous article Next article Mattress Industry Talk Company How Frequently Tempur Sealy’s Mattress Firm’s Proტt And Sales President Meets Top Estimates With Key Staff MORE BY HONEST MATTRESS REVIEWS MORE IN BREAKING NEWS Best President’s Day Mattress Sales & Offers 5 hours ago The 8 Most Disgusting Things Lurking Inside Your Mattress Unboxing The Love & Sleep Mattress By Nest Bedding 1 day ago 6 hours ago https://www.honestmattressreviews.com/mattress­reviewers/ 18/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 20 of 21 Load More By honest mattress reviews  Comments are closed. Get  Notifications Adjustable Beds 10 Best Rated Adjustable Beds. Find Top Online Offers, Save Big! Go to cheapmunks.com/Online+Offers POPULAR NEWS HONEST MATTRESS REVIEWS We Received Something BIG To Review Today – Something HUGE! The RiteBed Arrives As A New Player In The Online Mattress Space Mattress Firm Hires Sicily Dickenson As New CMO EDITOR PICKS GhostBed Mattress Review Get Your Product Reviewed Get Published! Contribute An Article What Is Honest Mattress Reviews Leesa Mattress Review Platform? HONEST REVIEWS COMPANY Tuft & Needle Mattress Review Sta쵞 Favorite News Beauty Reviews Home & Kitchen Fitness & Wellness Reviews Business Reviews Electronics Reviews Top Tags Nest Bedding Leesa Purple Yogabed Honest Mattress Reviews Mattress Firm Tuft & Needle Purple Mattress Casper Sleep Number Kickstarter GhostBed Eve Mattress Casper Mattress Leesa Mattress ABOUT US https://www.honestmattressreviews.com/mattress­reviewers/ FOLLOW US 19/20 2/20/2017 Do Mattress Reviewers Have A Responsibility To Acknowledge Consumer Safety? Case 2:17-cv-00138-DB Document 8-8 Filed 02/27/17 Page 21 of 21 ABOUT US FOLLOW US Honest Mattress Reviews provides genuine reviews of mattresses, pillows and sleep technology.   Get  Notifications Most mattress review websites receive af liate payments in exchange for driving traf c and providing bias reviews. Our website receives zero af liate commissions. Get Your Product Reviewed Contact Our Team Contribute Honest Reviews Company ©2016-2017 Copyright honest reviews, llc. All Rights Reserved. Privacy Policy Disclaimer  DMCA Terms of Service  https://www.honestmattressreviews.com/mattress­reviewers/  20/20 Case 2:17-cv-00138-DB Document 8-9 Filed 02/27/17 Page 1 of 4 Exhibit 2/27/2017 Case 2:17-cv-00138-DBAll About Our Non­Toxic Plastic Powder ­ Purple Document 8-9 Filed 02/27/17 Page 2 of 4 PRODUCTS REVIEWS BLOG ABOUT THE BLOG All About Our Non-Toxic Plastic Powder February 13, 2017 Author: Madi Kelly When Purple launched in January of 2016 we had fewer than 50 employees. Now, a year later, we are approaching 600 employees. To say we are growing quickly is quite literally the understatement of the year. Pretty cool, right? We think so too! Though, this amazing growth hasn’t come without some growing pains. Being a part of the Purple family is an incredible, educational, and challenging experience. Emphasis on challenging! Honestly, some days we feel like we are trying to solve a Rubik’s Cube…with our toes…while blindfolded. This is why we have to rely on each other for input and information. We LOVE questions here at Purple! So, when we were asked, “What exactly is this powder you place on your Purple material? Is it safe?” we were excited to explain further. Our Hyper-Elastic Polymer™ and our non-toxic plastic powder is what we call our secret sauce. It makes Purple…well, Purple! So let’s break this down. Hyper-Elastic Polymer™—or as we like to call it, Purple—is the material we use to build the most supportive and comfortable mattress on the face of the planet. Once the mattress is built we roll it up nice and tight and ship it with love right to your doorstep. We have machinery that rolls the mattress up and puts it into the shipping packaging—that giant Purple burrito that has become synonymous with comfort. However, due to the nature of our Hyper-Elastic Polymer™, we knew without some sort of ultra-light coating it would stick to itself once under the pressure of the rolling machinery. This is where our non-toxic plastic powder comes in! We now lightly coat our Purple® mattress and pillow that go through a tight-compression process to enable door-to-door shipping with our non-toxic plastic powder to prevent the Hyper-Elastic Polymer™ from sticking to itself. https://onpurple.com/blog/non­toxic­plastic­powder 1/3 2/27/2017 Case 2:17-cv-00138-DBAll About Our Non­Toxic Plastic Powder ­ Purple Document 8-9 Filed 02/27/17 Page 3 of 4 Here are the details about the inert non-toxic plastic powder that we invented to solve our packaging conundrum: 1. It is NOT a talc powder. Talc is a mineral and our plastic powder contains no talc whatsoever, or any mineral for that matter. 2. It is chemically inactive, AKA an inert substance. 3. It is a food-contact-grade material, meaning that this family of plastic materials can be used for eating utensils, children’s toys, etc. 4. It is 100% non-toxic and is completely harmless. 5. 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 stabbed anyone in the lip! Our scientists didn’t just solve the problem, they found a safe option in doing so and have applied for a patent. Until the patent is issued, Purple is keeping the exact type of plastic a “trade secret,” which helps protect the jobs of those 600 people from competitors who would love to figure out how to do what Purple does. But know that it is a very common type of plastic used in many human-touch products, even in products for children. Everything we do here at Purple centers on our customers. We want everyone’s life to be made better by this one-of-a-kind technology. We encourage a healthy and happy lifestyle through our products. Simply said, we ultimately want you to feel better and we believe Purple can help. If you have any other questions regarding this subject, please feel free to contact our Customer Delight team! Email: info@onpurple.com Phone: 844-642-5613 Let's be Bed Buddies: Get Purple Email Sign up for notifications on product launches, new video releases, and our awesome Purple newsletter! First Name Last Name Email Address SUBMIT https://onpurple.com/blog/non­toxic­plastic­powder 2/3 2/27/2017 Case 2:17-cv-00138-DBAll About Our Non­Toxic Plastic Powder ­ Purple Document 8-9 Filed 02/27/17 Page 4 of 4 I am now a mattress snob! The Purple bed has changed my way of sleeping. After a few nights of sleep on the Purple, I realized that for my entire life I had tricked myself into believing that a sore back was "normal" after a nights rest. Now, I am waking up feeling energized without the nagging back ache. I absolutely LOVE this mattress and tell anyone and everyone about my new boyfriend, my bed :). Alexandra D. No Sales Pressure Buy online – no haggling or hassling with salespeople, no huge retail markups. No Pressure to Try Sleep on your new mattress for 100 nights – if you don’t love it, we’ll take it back! No Sleep Pressure The only mattress with no pressure points – giving you the best sleep of your life. TERMS WARRANTY CONTACT RETURNS BLOG Protected by one or more of U.S. Patents 5,749,111; 6,026,527; 7,076,822; 7,730,566; 7,823,233; 7,827,636; 7,964,664; 8,607,387, and 9,051,169, with others pending. Purple and all product names comprising Purple, Hyper-Elastic Polymer, and No Pressure are trademarks of EdiZONE, LLC of Alpine, Utah USA. https://onpurple.com/blog/non­toxic­plastic­powder 3/3 Case 2:17-cv-00138-DB Document 8-10 Filed 02/27/17 Page 1 of 3 Exhibit Case 2:17-cv-00138-DB Document 8-10 Filed 02/27/17 Page 2 of 3 - . L16000186880 Electronic Art?cles of Organization FILED 8- 00 AM 01? Florida Limited Liability Company kpcardwell Article I The name of the Limited Liability Company is: HONEST REVIEWS LLC Article II The street address of the principal of?ce of the Limited Liability Company is: 900 N. FEDERAL HWY SUITE 220 BOCA RATON, FL. 33432 The mailing address of the Limited Liability Company is: 900 N. FEDERAL HWY SUITE 220 BOCA RATON, FL. 33432 Article Other provisions, if any: EDITORIAL WEBSITE Article IV The name and Florida street address of the registered agent is: RYAN MONAHAN 900 N. FEDERAL HWY SUITE 220 BOCA RATON, FL. 33432 Having been named as re istered agent and to accept service of process for the above stated limited liability company at the ace designated in this certi?cate, I hereby accept the appointment as registered agent and a ree to act in this ca acity. I further agree to comply with the provisions of all statutes relating tot proper and comp ete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent. Registered Agent Signature: RYAN MONAHAN Case 2:17-cv-00138-DB Document 8-10 Filed 02/27/17 Page 3 of 3 Article The name and address of person(s) authorized to manage LLC: Title: AP RYAN MONAHAN 900 N. FEDERAL HWY SUITE 220 BOCA RATON, FL. 33432 US Article VI The effective date for this Limited Liability Company shall be: 10/10/2016 Signature of member or an authorized representative Electronic Signature: RYAN MONAHAN October 10 2016 Sec. Of State kpcardwell I am the member or authorized representative submitting these Articles of Or anization and af?rm that the facts stated herein are true. I am aware that false information submitted in a ocument to the Department of State constitutes a third degree felony as provided for in s.817.155, PS. I understand the requirement to ?le an annual report between January and May 1st in the calendar year following formation of the LLC and every year thereafter to maintain "active" status. Case 2:17-cv-00138-DB Document 8-11 Filed 02/27/17 Page 1 of 2 Exhibit Case 2:17-cv-00138-DB Document 8-11 Filed 02/27/17 Page 2 of 2 (- I i (30ng ?cyan monahan"ghosct>ecl a, a All Video; rile-M Images Shoppng More Search too!!- About 1,520 results [0 seconds] Ryan Monahan. Author at GhostBact nuszm-mgnastm Claim your deal in just 23 secondsl Watch The 'Vldeo Below Ham's How 23 Seconds Wall Save You 5:35 The WW5 Floatlng GhostBed Free You 'i'l5l1ed Ihts page on 10' 15'16 Ryan Monahan. Author at GhostBed Page 2 or 16 hupo conuautnortghostomryannupagem Amt-tor Ryan Monlhan Magnum The Woods F-ral Floating Ghost?ed Fm Stratghl To Your Hana GhoItBed Featcn-d In The News She got him 3 Ryan Monahan. Author at Ghost?ed Page 3 of 16 Authot. Ryan Homhan The World: First Gho?B-ad Free Shipping Stranghl To Your Hat-no chasm Faa?tumd In The News She got rum 3 Ghost?ocl GhoatBed Mattress: Built For Supernatural Comfort Ghost Bed com! 1' Ghost Bod Mattresses are heauIrlully unsigned engineered to Improve your sleep Bull In the USA a xiv-year wmanly E- 10141; flow Irall me 5-199 You wanted this page Ryan Monahan. Author at Ghosl?ed Page 3 or 16 mammal-tom?s She got hum a GhoatBod as a Surprise Girll Watch Ha Reactor-LI You Will Lava Readmg These Here Is Exactly Why You Don?t Sleep Well In 50mm Ryan Monahan. Author at GhostBoct I Page 4 or 16 I Aulho: Ryan Hon-hm Ready To Enter Your Veteran To Wm A Shasta-ed?? The Watch. ?rst Flooding Ghost?od Fm Stratghl To Your Home Ryan Monahan. Author at GhoatBed Page 9 or 15 .- Author Ryan Monti-Ian What GhomBod Customer Am REALLY Saying Posted on January 21 2016 Jmuary 21. 2016 by Ryan Man-hm Ryan Monahan - ZEN Bedshoots Ghost?ed #SloepPorroctlon ZEN Bedsheots Ghost?od ?leepF'en'ectron THANK YOUI Ryan Monahan - MANDI Bodahaats GhootBed Facebook rmtaceuooxcomrpermarmt MANDI Bodshoels 0 Ghml?ocl #Sloip-Porl?tlw THANK YOUI Ryan Monahnn shared a video to MADNI B-edsheels's Ttmellna December 15 2015 Beta Ryan Monahan (@Ftylulonahan] Mttor - Tho talus: Tweets from Ryan-t Monahan {@FtyMonat-tan] Loa?ng Soonal Hauling Fomdor o! Stu-cud Modla Shoots Brand Of?cer at Ghost?ed 123-15678910 Next Case 2:17-cv-00138-DB Document 8-12 Filed 02/27/17 Page 1 of 2 Exhibit Case 2:17-cv-00138-DB Document 8-12 Filed 02/27/17 Page 2 of 2 lion-'- GH STBED '7 er; a Ira?? 34-. Author: Ryan Menuhin .lfl rv Case 2:17-cv-00138-DB Document 8-13 Filed 02/27/17 Page 1 of 2 Exhibit Case 2:17-cv-00138-DB Document 8-13 Filed 02/27/17 Page 2 of 2 iwmm Ear Iago-nun: loan-b look up 1 mmtm- 6 . t: I. ?52. - 5 ma.- ?Coehn' /css- ?fum' Iraq-w W- immv {oar [Inm- Kiwi" Im- Sun- Lon-av I 0 5?1 <1 ll?mml? "Ir Fail Tu! won-on View sou? v.4 3.1.1. .v ..- Pet?s! Mats E. Ryan Monahan Ryan Monman - insurance plan will soon repair SiraugsalrmmauotSQ-cuma . Snamsmner?rworfxerazammea busted phone screens (IOU 9 Beta mm :?isocmlmedm .- a Jon-accepts: 2011 1w New to Twitter? 2: a Case 2:17-cv-00138-DB Document 8-14 Filed 02/27/17 Page 1 of 2 Exhibit 2/27/2017 Ryan Monahan (@RyMonahan)   Twitter Case 2:17-cv-00138-DB Document 8-14 Filed 02/27/17 Page 2 of 2  Home   Search Twitter Moments Have an account? Log in Have an account? Phone, email or username Password  Remember me · Forgot password? Log in New to Twitter? Sign up Ryan Monahan @RyMonahan Leading Disruptive Social Marketing Strategist   Founder of Social Media Sharks   Boca Raton, Fl  socialmediasharks.com   Joined April 2011  2,507 Photos and videos TWEETS FOLLOWING FOLLOWERS LIKES LISTS 13.4K 852 6,209 236 5 Tweets   Tweets & replies   Media   Pinned Tweet Ryan Monahan  @RyMonahan · 19 Nov 2016  Once you start asking public investors for  30x earnings, the tolerance for mistakes,  misadventures and learning on the job  goes down.       Ryan Monahan  @RyMonahan · 2m https://twitter.com/rymonahan?lang=en   Follow  Sony's new Xperia Ear lets in sounds from  the outside world qoo.ly/dysqa  1/17 Case 2:17-cv-00138-DB Document 8-15 Filed 02/27/17 Page 1 of 2 Exhibit Case 2:17-cv-00138-DB Document 8-15 Filed 02/27/17 Page 2 of 2 II: RythunILII-Ihnan a Irnted'mum . 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Han DsIetlar Experience 31 Name?s Sleep CERTIFIED CUSTOMER WILLIE OPTIMIZATION SPECIALIST I: Wm,? swarm nuanesses nave some sun or tunnel Tor generanng heads and cmvemng Those Ieaas Inm 935'an (usIomers very few have .1:me OPTIMIIED funnel I'm a masher TunneI arcn?ecl tral'hng 'converswn lunnels' Ina! reduces customer acquISIlIun cosls slmullaneousw man lesch horn Increaslng Dom Immeuzale and Mehme Euslmrer values Emcmm al Nature?s Shep CERTIFIED PAID TRAFFIC Cuswrners are me rte-mood of any Duslness I'm a master or Ieveragmg Irar?c on 3" 11mm manners In no: only grow your :usIcmer base DUI la grew your customer base 51 a PROFIT Cnfuunder SEM - a. Enpa? Cami CrIu'IullI mu Presldent Operarluns :n Expanance Name's Sleep Founder Social Medra Sharks Jam-aru- - Fresenl IE- m. . SOCIAL MEDIA SHARKS TRAFFIC ENGAGE rum Sotlal medla 5 n01 recite! stIerIce 5:11 It rs s: And If done (enemy ynur Dusmess morn-II . Ryan I-Ior-ahan Founder - Soclal Media Sharks Inbm me Ior speakmg engagemems DRIVE TRAFFIC Tram: 1oday requues 'Ieverargmg strategac deployments across manna: In IonTIaIs 1112 GEM ENGAGEMENT It's Imp-arranl to understand the resaIIonsnIp your user has w1ln your Drama and serve IrI-ern meanInqul :cmenl: Inat suppurls the rurTen1 slams ol the" 03 CONVERT prep-er nununng and amomanon aster-sum process we know exacw when It: convert a sealer lo a cuslamer Rep-cared?! Chief Brand Of?cer Ghosl?ed F?rhf'l'. - Case 2:17-cv-00138-DB Document 8-16 Filed 02/27/17 Page 1 of 2 Exhibit 0 Case 2:17-cv-00138-DB Document 8-16 Filed 02/27/17 Page 2 of 2 Customer Review 2 of 10 people found the following review helpful it - . No support, noisy, and a weird Iwhite powder on the purple part, May 19, 2015 By Cami J. This review Is from: The Purple Bed Queen I did not purchase the bed so I can?t comment on the ordering or delivery, but my in-laws got one and I slept on it for a few nights. [thought memory foam mattresses are not supposed to transfer motion, but this mattress was actually noisy when my partner would move around. It makes like a squishy sound, like if you were to rub two rubber bouncy balls together and create a friction. We took the cover off to inspect underneath and it appears to have a whitish powder all over it. Not sure it is supposed to?I I'm not sure why this mattress would come with a powder on it, sort of makes me skeptical of this company and it doesn't seem like a good thing especially with how much bad press Johnson and Johnson is getting lately with all these people getting cancer from their powders. Not sure this is a baby powder but still, it's on my mind and highly concerning since we had our young son in the bed with us. For this reason alone I would say I can?t recommend it -- I live my life around being clean, green and as organic as possible, any anyone would easily gather this from all of my reviews Okay so the comfort -- weak. Ifelt like my neck and my shoulders were from two different bodies if that makes sense? Like I wasn't being fully supported as one body but rather being torn apart. Needless to say I spent a few days with awful aches and pains. My in-laws are still within their 100 days {not sure why they spent so much money on a guest room mattress) but I would recommend they return it and buy another Tempurperic instead I think they were trying to be "hip" and "cool" with their new Purple mattress but they are better off being safe and smart Help other customers'lind the most helpful reviews Report abuse Permalink Was this review helpful to you? No I Comments Track comments by e-mail Showing 1-1 of 1 posts in this discussion Sort: Oldest?rsl: Newest first Ini'lial pnst- May 23. 2015 Al32l?3 PM PDT Kerrigan says: This reviewer makes ill and inappropriate comments to anyone who posts negative reviews on Purple's competitor - Ghost Bed. She is related or is friends with the founders of Ghost Bed. This review is pure fallacy, and should not be taken seriously. . Permalink Report abuse I Ignore this customer Reply to [his Do thinktl'lis post adds to the discussion? Yes No I