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It doesn’t get any juicier than this. Opening statements began on Wednesday in a trial pitting California upstart Pom Wonderful LLC against juice-making giant Welch Foods Inc. over the marketing of their pomegranate juice products. Attorney Todd Theodora, who represents Pom Wonderful, began his case by holding up a 64 oz.-bottle of Welch’s White Grape Pomegranate juice in front of eight jurors in a downtown Los Angeles federal courtroom, announcing: “The sole focus of this lawsuit is this product.” Citing the label’s “crisp, luscious views” of a pomegranate, Theodora, senior attorney at Theodora Oringher Miller & Richman, said that Welch’s, lured by the sweet taste of the pomegranate market, has squeezed profits out of Pom’s bottom line by deceiving consumers into believing that its drink contains a significant amount of pomegranate juice. In fact, he said, the juice contains less than 1 oz. of pomegranate juice but that Pom’s main product contains 100 percent. Welch’s lead counsel, Rick Shackelford, a shareholder in the Los Angeles office of Greenberg Traurig, insisted that the purpose of the product’s label is to tell consumers how the juice tastes, not the percentage of juice in each bottle. Welch’s product and Pom’s vary in size, shape and color and are not competitors, he said, noting that they are displayed in different parts of the store and have different target markets. At one point, he balanced on his podium a small bottle of Pom’s pomegranate juice next to Welch’s larger White Grape Pomegranate juice bottle. “This is actually a case about two juices,” he said. “Use your own eyes. The two don’t look anything alike.” Founded in 2002, Pom has sued several of its competitors for making similar claims, including The Coca-Cola Co., Ocean Spray Cranberries Inc. and Tropicana Products Inc. Pom is a subsidiary of Los Angeles-based Roll Corp., a private retail and agricultural company run by Beverly Hills couple Stewart and Lynda Resnick, whose net worth has been estimated at more than $1.7 billion. The trial caps a year and a half of legal wrangling that began when Pom sued Welch’s for false advertising under the U.S. Lanham Act, which governs federal trademark law, as well as California’s unfair competition and false advertising laws. Last year, Matz refused to grant Welch’s motion to dismiss and instead dismissed several of Welch’s counterclaims against Pom. But he also tossed out Pom’s California claims. On the remaining Lanham Act claim, U.S. District Judge A. Howard Matz denied Welch’s motion for summary judgment on July 9 because the company had argued for the first time that Pom’s claims were pre-empted by the Food, Drug, and Cosmetics Act, which governs the naming and labeling of such products. On Aug. 25, Matz denied Welch’s motion for summary judgment on its defense that Pom has “unclean hands” since it has failed to inform consumers that its 100 percent pomegranate juice contained water and elderberry, among other things. Now in trial, Theodora started off telling the jury about Pom’s beginnings. Founded in 2002, Pom grows its own juice on 18,000 acres of pomegranate orchards that the company owns in California. Pom makes several kinds of pomegranate juice products, including blends, but all clearly label the percentage of pomegranate juice in the bottle, he said. There is no way for consumers to know how much pomegranate juice is in Welch’s product, he said. For the jurors, he pulled out from a cardboard box a 64-oz bottle of Welch’s juice that was almost entirely empty except for a swallow’s worth of pomegranate juice. “The rest of it is white grape and apple juice,” he said. He told jurors that Welch’s concocted a marketing plan to get into the growing pomegranate juice business in late 2006. Because pomegranate juice was in such high demand and cost so much, Welch’s came up with a less expensive way to make its juice. “That’s how Welch’s got around the increased cost of pomegranate juice — by putting in a trace amount,” he said. To make the color of the juice more red than white, Welch’s added red dye to it, Theodora said. And to make it taste like pomegranate juice “without the pucker,” Welch’s added flavor additives, he said. “Pom has lost sales as a result of this product, which we allege is deceptively labeled.” He said that he intended to introduce eight people who will testify that they bought Welch’s juice instead of Pom’s because it was less expensive but believed it had the same health benefits; they switched back to buying Pom’s product after realizing the true amount of pomegranate juice in the Welch’s product. Their testimony will show how Pom has lost 20 percent of its sales to Welch’s, Theodora said. Shackelford told the jury that Welch’s White Grape Pomegranate juice is the latest incarnation in a series of 100 percent white grape juice blends that the company introduced in 2001, all of which have similar labels depicting the fruit that provides the “round out” flavor, such as pomegranates or cherries or mangoes. The purpose of those labels is to tell consumers what the juice tastes like, not the actual percentages of each fruit juice in the drink, he said. Shackelford played down the importance of Pom’s witnesses, telling the jury that Pom found them through an ad on Craigslist and paid them for their testimony. He disputed that the two drinks were competing for market share, pointing out that Welch’s first introduced its product in 96-oz. bottles in Costco at about 1/5 the per-ounce price of Pom’s product. The products now are sold in different parts of the grocery store and have different target markets: Welch’s sells to parents with kids, while Pom sells to people ages 55 and older who have health concerns. He showed the jurors a written copy of Lynda Resnick’s testimony in the case that Pom’s drink was more like “health in a bottle” than a juice. He spent several minutes displaying Pom’s ads, which make statements such as “outlive your spouse” and “floss your arteries.” And he told the jury that he intended to put an expert on the stand to refute many of the health benefits that Pom attributes to pomegranate juice. During an pretrial hearing on Tuesday, Matz appeared surprised that Pom’s lawyers did not intend to tell the jury that the company created an entire market that attributes health benefits to pomegranate juice or that Welch’s, by selling pomegranate juice, was attempting to “piggyback” on those claims for its own profits. “We don’t intend to introduce evidence that Pom created this market,” Theodora told the judge during the hearing. “That has no place in this case.” Matz questioned how the trial would play out, since Pom was lining up witnesses to testify that they bought pomegranate juice in large part due to its perceived health benefits. “I think it’s going to be very hard to keep this playing field level,” the judge said. “I don’t know if you’re going to pull it off.” Pom has faced scrutiny over the health claims it has made about its products. On Feb. 23, the U.S. Food and Drug Administration (FDA) sent a warning letter to Pom saying that the “therapeutic claims” about its 100 percent pomegranate juice could be in violation of the U.S. Food, Drug, and Cosmetic Act by depicting the drink as a drug. Pom has denied the FDA’s allegations, saying on its Web site that it is “confident about the depth of our research” and looks forward “to working with the FDA to resolve these issues.” During the pretrial conference, Matz indicated that the FDA letter would be part of the case, saying: “I thought it was a pretty strong warning.” Matz also questioned where Pom’s lead counsel at Loeb & Loeb had gone. The firm’s lawyers, led by Mark Campbell and Andrew Clare, both partners in the Los Angeles office, have been representing Pom throughout the case. Neither responded to a request for comment. Theodora’s firm is a small litigation and transactional boutique in Los Angeles. He works in the Costa Mesa, Calif., office and is handling the case with Steve Weisskopf, a senior attorney in the firm’s Los Angeles office, and Christopher Van Gundy, associate general counsel in the legal department of Roll, whose other subsidiaries include Fiji Water Co., Paramount Farms Inc. and Teleflora LLC. Also at the counsel’s table on Wednesday sat Matt Tupper, president of Pom. Missing from the trial will be evidence about the existence of Pom’s other cases against its competitors. In May, U.S. District Judge James Otero in Los Angeles granted a summary judgment motion for Coca-Cola, finding that its Pomegranate Blueberry Flavored Blend, made by subsidiary Minute Maid, comported with FDA and other regulations. Pom has appealed that ruling to the 9th U.S. Circuit Court of Appeals. Also missing at trial appears to be any mention that the FTC is investigating Pom. The investigation was revealed in a separate case in the District of Columbia Superior Court that Pom has pending against its former attorneys at Hogan Lovells, who allege Pom owes them more than a $500,000 in legal fees and expenses. Pom has called the firm’s fees “exorbitant.” In July, Superior Court Judge Judith Bartnoff signed a temporary restraining order preventing The National Law Journal from publishing the name of the regulatory agency before which Hogan had represented Pom. She had agreed, at Pom’s request, to seal documents that had made that information public. After The National Law Journal filed an emergency appeal, which was joined by other news organizations, Bartnoff lifted the temporary restraining order at the request of Pom’s lawyer.

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