ll~ JUN 13 2013

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3 4 5 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MARION INNOVATION VENTURES, LLC, a Michigan Limited Liability Company and LIVING ESSENTIALS, LLC, a Michigan Limited Liability Company, Plaintiffs, vs. ELLEN F. ROSENBLUM, in her official capacity as Attorney General for the State of Oregon, Defendant. Plaintiffs allege: PARTIES 1. Living Essentials, LLC and Innovation Ventures, LLC (collectively "LE" or "plaintiffs") are privately held companies organized and existing under the laws of the State of Michigan with their principal place of business in Farmington Hills, Michigan. 2. Case No.

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Marion County Circuit Court

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COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER) CLAIM NOT SUBJECT TO MANDATORY ARBITRATION FILING FEE AUTHORITY: ORS 21.135(1)(g)

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Ellen F. Rosenblum is the Attorney General for the State of Oregon, head of the ~- .. Oregon Department of Justice and the chief law officer for the State of Oregon and all of its departments. II II

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HARRANG

LONG

GARY

Page 1-

RUDNICK

P.c.

COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER)

360 East 10th Avenue Suite 300 Eugene, OR 97401-3273 Phone 541.485.0220

JURISDICTION AND VENUE

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3.
This Court has jurisdiction over Attorney General Rosenblum because she is an official of the State of Oregon. This Court has jurisdiction over the subject matter of this action pursuant to ORS 28.010 et seq. Venue is appropriate in Marion County because the defendant's principal office is located in this county. ORS 14.060.

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FACTUAL BACKGROUND
4. Plaintiffs manufacture and sell the leading energy shot on the market, 5-hour ENERGY. 5-hour ENERGY shots were introduced in 2004, and now over nine

million bottles of 5-hour ENERGY are sold every week. Numerous competitors are seeking to emulate the success of 5-hour ENERGY shots, in particular, by attempting to replicate LE's proprietary formula. The formula for the energy shot 5-hour ENERGY is a trade secret, which is one ofLE's most valuable assets. 5. This dispute arises out of a Civil Investigative Demand ("CID") issued by the Civil Enforcement Division of the Department of Justice ("DOJ") on January 16, 20l3. Oregon is one of five states that comprise the Executive Committee of a multi state investigation regarding certain issues relating to the advertising of 5-hour ENERGY shots. There are currently thirty-three (33) states participating in the multistate investigation. Defendant, acting by and through Assistant Attorney General David Hart, represents Oregon on the Executive Committee.

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6.
The multi state investigation initially focused narrowly on an-advertisement campaign that ran for approximately three months ending in October 2012 related to

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Page 2 HARRANG LONG GARY

RUDNICK

P.C.

COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER)

360 East 1Dth Avenue Suite 300 Eugene, OR 97401-3273

Phone 541.485.0220

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surveys of doctors. The Executive Committee subsequently expanded its investigation to include an inquiry into a claim of "no crash" associated with 5-hour ENERGY shots. 7. Plaintiffs are not seeking to quash or modify the CID. In fact, plaintiffs have been providing rolling productions of documents and working collaboratively with DO] and representatives of the other states participating in the multi state investigation to comply with the CID and similar requests from other states. LE advised DO] that production of documents was completed as of May 31, 2013, with written responses and a privilege log to follow shortly thereafter. These productions of documents and information provide DO] and all of the other participating states with all non-privileged documents and information responsive to the CID, with one narrow exception that is the subject of this Complaint. 8. CID request #31 states: "Provide all correspondence between You and the National Advertising Division ["NAD"] of the Council of Better Business Bureaus that refer or relate to a 'crash' following use of 5-hour ENERGY." In response to this

request, LE produced copies of materials provided to NAD in 2007 in connection with a self-regulatory proceeding. These materials included a cover letter and a scientific

literature review ("Literature Review") that referenced the amounts of specific ingredients related to the 5-hour ENERGY products. NAD is a private entity, not subject to any public records law or Freedom of Information Act. Because the specific amounts of ingredients in the 5-hour ENERGY products are highly confidential and. proprietary trade secrets, LE redacted only the amounts - not the ingredients - listed in the copies of these two documents that it produced to DOl. II II

Page 3 HARRANG LONG GARY RUDNICK

P.c.

COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER)

360 East 10th Avenue Suite 300 Eugene, OR 97401-3273 Phone 541.485.0220

9. 2 3 4 5 6 7 8 On April 17, 2013, Assistant Attorney General Hart requested that LE produce un-redacted copies of these two documents so that the specific amounts of ingredients in the records of every state concern that in

the 5-hour ENERGY participating "Redaction

shots would be contained

in the multi state investigation. of this information

Mr. Hart originally expressed

makes it difficult, if not impossible, In response,

to evaluate the

strength of the experts' information disclosed

opinions."

LE offered to provide specific Review. LE voluntarily

that would assist Mr. Hart's review of the Literature

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to Mr. Hart the amount of caffeine in 5-hour ENERGY,

which LE also

recently released to the public.

LE further offered to provide Mr. Hart with a limited as a reasonable balance between DOl's stated

range of the amounts of the ingredients, need for the information, information

and LE's imperative

business need to keep this highly sensitive

strictly confidential. 10.

Mr. Hart, however, declined LE's offer and continues to seek unredacted of the two documents. refused to negotiate Literature Mr. Hart did not state why LE's offer was insufficient,

copies and he has

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with LE regarding means by which LE can assist his review of the one of LE' s most valuable assets. of unredacted documents Mr. Hart advised that reveal the and on June 11,

Review without disclosing

LE that he would seek to compel production specific amounts of ingredients 2013, DOJ provided

in the formula for 5-hour ENERGY,

LE with a formal notice of civil investigative

demand enforcement.

11.
The CID did not request the production 5-hour ENERGY DOJ to understand documents products, of information related to the formula for necessary for

nor are the specific amounts of ingredients As noted, that information

the disclosed documents.

was included in

responsive

to CID Request #31. The ranges offered by LE would provide

Page 4 HARRANG LONG GARY RUDNICK P.C.

360 East 10th Avenue Suite 300 Eugene, Phone

COMPLAINT ORDER)

(DECLARATORY

JUDGMENT

AND PROTECTIVE

OR 97401-3273 541.485.0220

more than adequate specificity and all of the necessary information for an in-depth scientific review while avoiding the wholly unnecessary and unfair risk of disclosure of the specific formula. DOJ cannot articulate any legitimate need for an unredacted copies of these documents that would outweigh LE's need to maintain the secrecy ofthe precise components of its formula. Further, LE has clarified on labels and advertising that "no crash" means "no sugar crash" because 5-hour ENERGY contains no sugar. One need only look to the label to verify this claim - sugar is not in the product. There is no need to look at the exact amount of ingredients in the energy blend to confirm this simple truth. 12. LE and DOJ are parties to a Confidentiality Agreement dated February 26,2013, that provides certain protections for confidential information that LE produces. However, those protections are inadequate in light of the highly sensitive information relating to the formula for the 5-hour ENERGY products and the incalculable and irreparable harm that would result from public disclosure of this information. The

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Confidentiality Agreement does not restrict the ability ofDOJ to disclose confidential information to an unlimited number of its own staff and employees, other state or federal investigatory agencies, third parties such as witnesses in the investigation, or to general members ofthe public in connection with a public records request made pursuant to ORS 192.410 to 192.505. ORS 192.420( 1) provides that "[e]very person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.501 to 192.505." In this electronic age, one person can irrevocably destroy the privacy of information by posting content to the internet, whether acting innocently, negligently, or intentionally. Any public disclosure of these highly confidential trade secrets poses a significant threat to LE.
II

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Page 5 HARRANG LONG GARY RUDNICK

P.C.

COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER)

360 East 10th Avenue Suite 300 Eugene, OR 97401-3273 Phone 541.485.0220
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13. The disclosure exemptions provided in the Oregon Public Records Law, ORS Chapter 192, for trade secrets do not alleviate the risk of exposure and irreparable harm to LE. LE has no assurance that DOJ would agree that the formula-related information is a trade secret or that it is exempt from disclosure under the Oregon Public Records Law. Additionally, the trade secret exemption can be overridden if "the public interest requires disclosure in the particular instance." ORS 192.501. LE has no assurance that DOJ would conclude that the public interest does not require disclosure. Further, because DOJ has the ability to disclose LE's trade secret information to the attorneys general of the other states involved in the multistate investigation, LE would be exposed to defending against public records requests and other attempts to access its proprietary information in thirty-three (33) states across the nation. FIRST CLAIM FOR RELIEF (Declaratory Judgment) 14. LE realleges paragraphs 1 through 14. 15. This is an action for declaratory judgment pursuant to ORS Chapter 28. 16. An actual and justiciable controversy has arisen between plaintiffs and defendant because defendant, acting by and through Assistant Attorney General David Hart, contends that it can compel LE to disclose confidential trade secret information relating to the formula for 5-hour ENERGY products, the confidentiality of which is critical to LE's ongoing business operations, and LE contends that it is entitled to redact that information from documents produced in response to defendant's CID. II Page 6 COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER)

HARRANG LONG GARY RUDNICK

P.C.

360 East 10th Avenue Suite 300 Eugene, OR 97401-3273 Phnne'i41.485.0220

17. LE will suffer irreparable injury, including the irreparable loss of its competitive business advantage, if it is compelled to disclose its highly confidential formula-related information for 5-hour ENERGY shots. LE invested a substantial amount of time and money to develop the formula for the 5-hour ENERGY products, and LE derives significant economic value from the fact that the formula is not generally known to the public. The disclosure of the formula-related information regarding the 5-hour E1\TERGYproducts would destroy the economic value of LE's innovative efforts and deprive LE of the benefits of its innovation, and discourage future innovative efforts. 18. Plaintiffs therefore are entitled to a declaration that defendant is not entitled to compel plaintiffs to disclose plaintiffs' proprietary formula information related to the 5hour ENERGY products. SECOND CLAIM FOR RELIEF (protective Order) 19. LE realleges paragraphs 1 through 14. 20. ORCP 36(C)(7) permits a court to issue a protective order to prevent disclosure of a trade secret. 21. LE's formula for 5-hour ENERGY products is a highly confidential trade secret. Disclosure of information relating to the formula would subject LE to significant hardship. 22. The burden and potential for harm resulting from disclosure ofLE's highly

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HARRANG LONG GARY RUDNICK P.C.

360 East 10th Avenue Suite 300 Eugene, Phone

Page 7 -

COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE

ORDER)

OR 97401-3273 541.485.0220

confidential trade secrets to DOJ outweighs any claim of need for the information. This 2 3 4 5 6 7
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is particularly true here because LE has offered to make more limited disclosures that will fully satisfy DOJ's need for information to evaluate the claim under review. 23. Plaintiffs therefore are entitled to a protective order stating that LE is not required to provide information to DOJ relating to the specific amounts of ingredients in 5-hour ENERGY products. PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for judgment in their favor and the following relief: 1. A declaration that information relating to specific amounts of ingredients

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in 5-hour ENERGY products is a trade secret;

2.

A declaration that the Department of Justice is not entitled to disclosure of

the specific amounts of the ingredients in 5-hour ENERGY products; 3. Issuance of a protective order providing that plaintiffs are not required to

provide information regarding the specific amounts of ingredients in 5-hour ENERGY products to DOJ; and 4. and proper. An order granting such other and further relief as the Court may deem just

DATED this lih day of June, 2013.

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Page 8 HARRANG LONG GARY RUDNICK

P.C.

COMPLAINT (DECLARATORY JUDGMENT AND PR ORDER)

ECTIVE

360 East 10th Avenue Suite 300 Eugene, OR 97401-3273 Phone 541.485.0220

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Milton k Marquis (pro hac vice pending) Dickstein Shapiro LLP marquism@dicksteinshapiro.com Telephone: 202-420-2659 Facsimile: 202-420-2201 Alana Brown (pro hac vice pending) Dickstein Shapiro LLP brownalana@dicksteinshapiro.com Telephone: 212-277-6763 Facsimile: 212-277-6501 For Plaintiffs Innovation Ventures, LLC and Living Essentials, LLC

RUDNICK P.C.
360 East 10th Avenue

COMPLAINT (DECLARATORY JUDGMENT AND PROTECTIVE ORDER)

Suite 300
Eugene,
....

OR 97401-3273
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Phone 541.485.0220