IL CUSINESS Of FILL 4 LLN 1 2 3 4 5 6 Anthony J. Ellrod (State Bar No. 136574) aje@manninglip.com Jeffrey M. Lenkov (State Bar No. 156478) jml@manninglIp.corn Brandon K. Braga (State Bar No. 253233) bkb@manninglIp.com MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 801 S. Figueroa St, 15 th Floor Los Angeles, California 90017-3012 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 7n111 MAY —2 PM 2: 02 r rj-s: SAN DIEGO CGUNTY, CA 7 Kenneth S. Kawabata (State Bar No. 149391) ksk@rnanninglIp.com MANNING & KASS, 9 ELLROD, RAMIREZ, TRESTER LLP 550 West C Street, Ste. 1900 10 San Diego, California 92101 Telephone: (619) 515-0269 11 Facsimile: (619) 515-0268 8 12 Attorneys for Plaintiff; NATIONAL STRENGTH AND CONDITIONING ASSOCIATION 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SAN DIEGO 16 Case No. 37 -2016-00014339 -CU-DF-CTL 17 NATIONAL STRENGTH AND CONDITIONING ASSOCIATION, 18 Plaintiff; 19 V. 20 GREG GLASSMAN; RUSSELL BERGER; RUSS GREENE; CROSSFIT, INC., a 21 Delaware Corporation; and DOES 1 through 22 20, inclusive, NATIONAL STRENGTH AND CONDITIONING ASS 0 CIATION COMPLAINT FOR: 1) TRADE LIBEL 2) DEFAMATION 3) UNFAIR BUSINESS PRACTICES Defendants. 23 24 25 National Strength and Conditioning Association ("NSCA"), by and through their counsel, 26 27 hereby complains and alleges as follows: 28 / / / 4848-9914-4529.1 1 COMPLAINT OF NS CA JURISDICTION AND VENUE 1 1. 2 Jurisdiction and venue are proper in this Court because all of the claims alleged 3 herein arose in San Diego County and DEFENDANTS (as defined below) were doing business in 4 the County of San Diego at all relevant times herein. 2. 5 The amount in controversy exceeds the sum of $25,000, exclusive of interest and 6 costs. PARTIES 7 8 3. Plaintiff NATIONAL STRENGTH AND CONDITIONING ASSOCIATION 9 ("NSCA") is a non-profit corporation organized under the laws of the State of Colorado. 10 11 4. The NSCA is informed and believes and thereon alleges that Defendant Greg Glassman ("GLASSMAN") is and at all relevant times herein mentioned was a resident of the 12 state of California, and splits his time between Watsonville, CA in Santa Cruz County and Solana 13 Beach, CA in San Diego County. 14 5. The NSCA is informed and believes and thereon alleges that Defendant Russell 15 Berger ("BERGER") is and at all relevant times herein mentioned was a resident of Madison 16 County, Alabama. 17 6. The NSCA is informed and believes that and thereon alleges Defendant Russ 18 Greene ("GREENE") is and at all relevant times herein mentioned was a resident of the District of 19 Columbia. 20 21 7. CrossFit, Inc. ("CROSSFIT") is a corporation organized under the laws of the state of Delaware, with its principal place of business at 444 S. Cedros Avenue, Solana Beach, 22 California. 23 8. The true names and capacities of Does 1 through 20 (collectively, "DOES"), 24 inclusive, are unknown to the NSCA at this time, and the NSCA therefore sues such defendants 25 under fictitious names. The NSCA is informed and believes, and thereon alleges, that each 26 defendant designated as a "Doe" is highly responsible in some manner for the events and 27 happenings referred to herein, and legally caused the injuries and damages alleged in this 28 4848-9944-4529.1 2 COMPLAINT OF NSCA 1 Complaint. The NSCA will seek leave of the court to amend this Complaint to allege their true 2 names and capacities when ascertained. 9. 3 GLASSMAN, BERGER, GREENE, CROSSFIT and DOES are collectively 4 referred to as "DEFENDANTS". Each of the defendants named herein was at all times herein 5 mentioned the agent and/or employee of each of the other defendants, and in doing the things 6 hereinafter alleged was acting within the course and scope of such agency and the permission and 7 consent of the other defendants. 10. 8 The NSCA is informed and believes and thereon alleges that each and every 9 defendant was the authorized agent, principal, partner, joint venturer, guarantor, actual or 10 ostensible, of the other defendants and had full authority to do as alleged herein, unless alleged 11 otherwise. Furthermore, each and every defendant was operating within the course and scope of 12 their agency, or as principal, partner, joint venturer, guarantor, actual or ostensible, relationship 13 with the other defendants during the course of events described herein unless alleged otherwise. ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF 14 11. 15 Founded in 1978, the NSCA is the worldwide authority on strength and 16 conditioning, and as such supports and disseminates research-based knowledge and its practical 17 application to improve athletic performance and fitness. The NSCA is highly respected and 18 enjoys an excellent reputation in the sports, exercise, scientific, health, and general communities. 12. 19 BERGER and GREENE are both employees of CROSSFIT. BERGER and 20 GREENE jointly publish a blog known as "The Russells". BERGER and GREENE publish this 21 blog as part of their job duties and in the course and scope of their employment with CROSSFIT. 13. 22 On or about the dates indicated below, BERGER and GREENE, on behalf of 23 CROSSFIT, published the following written statements on The Russells: A. 24 June 3,2014: "Unfortunately, the NSCA's corrupted science didn't just 25 harm CrossFit 614. The NSCA also falsely besmirched the reputation of all CrossFit affiliates, 26 and spread the lie that they are practicing dangerous training." 27 / / / 28 / / / 4848-99444529.1 3 COMPLAINT OF NS CA 1 B. February 12, 2015: "The American College of Sports Medicine (ACSM) 2 and National Strength and Conditioning Association (NSCA) published unsubstantiated and/or 3 fraudulent claims about CrossFit." 4 C. June 1,2015: "[T]he NSCA's alleged authority figures are inconsistent on D. June 1, 2015: "In 2013 the NSCA knowingly published fabricated injury 5 many topics." 6 7 data about CrossFit. That didn't work, either. CrossFit uncovered the fraud." E. 8 June 9, 2015: "We are honored to present this message from CrossFit Inc. 9 Founder and CEO Greg Glassman. .... The American College of Sports Medicine (ACSM) and 10 the National Strength and Conditioning Association (NSCA) are partners with Mr. Beddie in 11 ICREPs, through the U.S. Registry of Exercise Professionals (USREPS). These organizations have 12 all engaged in long-term, systematic, regular, and collaborative fraud — fraud that is scientific, 13 academic, and tortious — in their representatives' collective statements, publications, press 14 releases, and in a paid public-relations campaign against CrossFit. We've documented this effort 15 publicly and have filed suit against the NSCA in a United States District Court. Much in the 16 manner of Beddie, the NSCA altered a study to include injuries that never occurred and fed it to 17 media including Outside Magazine, which dutifully asked 'Is CrossFit Killing Us?' in its 18 December 2013 issue." F. 19 June 12, 2012 comment by GREENE to posting on The Russells dated June 20 9,2015: "Coca-Cola, ACSM, Pepsico, and NSCA are funding a campaign to throw CrossFit 21 affiliate owners in jail for teaching air squats (and telling their clients not to drink branded sugar 22 water)." 23 The foregoing are merely illustrative of the types of false statements made by BERGER 24 and GREENE on behalf of CROSSFIT and are not an exhaustive list of all false statements made 25 by BERGER and GREENE regarding the NSCA. 26 14. On or about March 9, 2015 a video was posted on YouTube with BERGER 27 discussing the NSCA and CROSSFIT. The NSCA became aware of the video some time later and 28 4848-99444529.1 4 COMPLAINT OF NSCA I is informed and believes that the video remains on YouTube with continual viewing by the public. 2 In that video Greene makes the following false statements. 3 A. Peer reviewers for the NSCA's scientific publication are handpicked by Dr. B. The NSCA has publicly stated that they want to see state licensure 4 Kraemer. 5 6 requirements of personal trainers that exclude CROSSFIT. 7 C. The NSCA has literally gotten every single thing about fitness and health 8 wrong for the past couple of decades. 9 15. Each of the statements set out in Paragraphs 13 and 14 above is false as it pertains to the NSCA. 11 16. The statements set out in Paragraphs 13 and 14 above are libelouson their face in 12 that they tend to expose the NSCA to hatred, contempt, ridicule, and/or obloquy, and/or has and 13 will in the future cause the NSCA to be shunned and/or avoided, and/or which has a tendency to 14 injure the NSCA in its business reputation. 15 17. The statements set out in Paragraphs 13 and 14 above were seen and read by 16 persons who reside in and around the State of California. 17 FIRST CAUSE OF ACTION 18 (Trade Libel Against DEFENDANTS) 19 18. The NSCA realleges and incorporates by reference the allegations set forth in 20 Paragraphs 1 through 17 above as if fully set forth herein. 21 19. As set forth more fully above, the NSCA is informed, believes and on that basis 22 alleges that CROSSFIT, by and through GLASSMAN, BERGER and GREENE, willfully, 23 knowingly, without justification, and without privilege made the false and disparaging statements 24 set forth above, without limitation, to existing and potential future members, customers, and 25 sponsors of the NSCA. 26 20. As a proximate result of the above-described publications, the NSCA has suffered 27 loss of its business reputation, all to its general damage. As a direct and proximate cause of 28 DEFENDANTS' actions, the NSCA has been injured financially. If not preliminary and 4848-9944-4529.1 5 COMPLAINT OF NS CA 1 permanently enjoined, DEFENDANTS' false statements will continue to cause the NSCA to 2 suffer irreparable harm. 3 21. The statements set out in Paragraphs 13 and 14 above were published by 4 DEFENDANTS with malice and/or oppression and/or fraud, in that: 5 A. At the time DEFENDANTS published those statements, they were either 6 aware of their falsity or acted with reckless disregard as to whether those statements were true or 7 false; B. 8 At the time DEFENDANTS published those statements, they either were 9 aware that the publications of those statements would injure the NSCA's business reputation or 10 acted with reckless disregard as to whether the publications of those statements would injure the 11 NSCA's business reputation; and 12 C. At the time DEFENDANTS published those statements, they intended that 13 the publications of those statements would injure the NSCA's business reputation or acted with 14 willful and conscious disregard of the possibility that the publications of those statements would 15 injury the NSCA's business reputation. 16 22. Accordingly, the NSCA is entitled to an award of punitive and exemplary damages 17 from DEFENDANTS, and each of them. 18 SECOND CAUSE OF ACTION 19 (Defamation Against DEFENDANTS) 20 21 23. The NSCA realleges and incorporates by reference the allegations set forth in Paragraphs 1 through 17, above, as if fully set forth herein. 22 24. The NSCA is informed and believes and thereon alleges that CROSSF1T, by and 23 through GLASSMAN, BERGER and GREENE communicated, in writing, one or more false 24 statements to third parties. 25. 25 DEFENDANTS knew the statements, including without limitation those set forth in 26 Paragraph 13 and 14 above, were untrue when they made them, or DEFENDANTS failed to use 27 reasonable care to determine the truth or falsity of the statements prior to making the statements. 28 /// 4848-99444529.1 6 COMPLAINT OF NSCA 26. 1 As a proximate result of the above-described statements, the NSCA has suffered 2 harm to its business, trade, profession, and/or occupation, reputation. If not preliminary and 3 permanently enjoined, DEFENDANTS' false statements will continue to cause the NSCA to 4 suffer irreparable harm. 27. 5 Because of DEFENDANTS' defamatory statements, the NSCA has been damaged 6 and will continue to be damaged in an amount that will be proven at trial, but is in excess of the 7 court's jurisdiction. 28. 8 DEFENDANTS' false statements, including without limitation those set forth in 9 Paragraph 13 and 14 above, were published by DEFENDANTS with malice and/or oppression 10 and/or fraud, in that: A. 11 At the time DEFENDANTS published those statements, they were either 12 aware of their falsity or acted with reckless disregard as to whether those statements were true or 13 false; B. 14 At the time DEFENDANTS published those statements, they either were 15 aware that the publications of those statements would injure the NSCA's business reputation or 16 acted with reckless disregard as to whether the publications of those statements would injure the 17 NSCA's business reputation; and C. 18 At the time DEFENDANTS published those statements, they intended that 19 the publications of those statements would injure the NSCA's business reputation or acted with 20 willful and conscious disregard of the possibility that the publications of those statements would 21 injury the NSCA's business reputation. 22 29. Accordingly, the NSCA is entitled to an award of punitive and exemplary damages 23 from DEFENDANTS, and each of them. 24 THIRD CAUSE OF ACTION 25 (Unfair Business Practices Against DEFENDANTS) 30. 26 The NSCA realleges and incorporates by reference the allegations set forth in 27 Paragraphs 1 through 17, above, as if fully set forth herein. 28 / / / 4848-99444529.1 7 COMPLAINT OF NSCA 31. DEFENDANTS engaged in unlawful, unfair and fraudulent business acts and practices with the specific intent to damage the reputation athe NSCA within the sports, exercise, scientific, health, and general communities. 32. By knowingly making the foregoing false statements, DEFENDANTS tortiously interfered with the business relationships between the NSCA and its members, customers and/or sponsors, all in an attempt to gain an unfair competitive advantage. 33. Such alleged acts include, but are not limited to, running an advertisement and marketing campaign in general and social media, defaMing the NSCA, including but not limited to making false statements regarding the NSCA, its publications and its services. 34. All such acts were intended to cause the NSCA's members, customers, and/or sponsors to cease business relationships with the NSCA, all to the inurement of CROSSFIT. As a direct and proximate result of DEFENDANTS' conduct, the NSCA has been injured, and has and will continue to lose business as a result of these unfair competitive practices. 35. The NSCA seeks injunctive relief to ensure that these unfair business practices will cease and desist, and disgorgement of any diverted profits. WHEREFORE, the NSCA prays judgment against DEFENDANTS, and each of them, as follows: 1. For general damages according to proof. 2. For special damages according to proof. 3. For disgorgement. 4. For punitive damages. 5. For costs of suit incurred herein. 5. That the Court issue an order preliminarily and permanently enjoining DEFENDANTS from engaging in further unfair business practices and defamation of the NSCA. 4848-9944-4529.1 8 COMPLAINT OF NSCA 6. For such other and further relief as the Court may deem proper. DATED: April 29, 2016 MANNING & KASS R ELLROD, RAMIREZ, TRESTEAF By: / 11-710° #14-gAid441.ni- nthony J. Ellro • Jeffrey M. Lenkov, Kenneth S. Kawabata, Brandon K. Braga, Attorneys for NATIONAL STRENGTH AND CONDITIONING ASSOCIATION 4848-9944-4529.1 9 COMPLAINT OF NSCA