As VPX Pharmaceuticals seeks to end its distribution agreement with PepsiCo in court, the Florida-based maker of Bang energy drink has filed a response in opposition to the soda giant’s motion to dismiss the lawsuit.
According to a January 11 filing in the United States District Court Southern District of Florida, Bang claims that PepsiCo’s legal case for maintaining the distribution agreement through its three-year term does not have merit and that the contract allows it to seek injunctive relief “to prevent irreparable harm” to the brand.
“After kicking a field goal on its opening drive, Defendant PepsiCo asks the Court to end the game now and declare it the winner. But PepsiCo’s unilateral declaration of victory is premature,” Bang’s response stated.
Bang sued PepsiCo in November, seeking an injunction to stop the conglomerate from making threats to Bang’s customers and wholesale distributors. Bang first moved to end its distribution agreement with PepsiCo on October 23, after months of declining sales, and publicly announced the breakup on November 17.
Last month, an arbitrator ruled that Bang must honor the terms of the distribution agreement and cannot do business with distributors outside of the PepsiCo network until October 24, 2023. PepsiCo then moved to dismiss Bang’s lawsuit on December 28, citing the arbitrator’s decision and Bang’s failure to state a claim.
Bang’s response argues that the company did in fact state claims for breach of contract and tortious interference and that PepsiCo’s argument is “predicated on an erroneous assertion” that the distribution contract was “unambiguous” in PepsiCo’s favor. Bang holds the position that the contract is ambiguous in regards to its ability to alter the agreement.
In addition, the energy drink maker said the court should move forward with the case, regardless of ongoing arbitration. The response states that the company is pursuing additional claims that have not been raised during arbitration, requiring the suit to continue.
“The Distribution Agreement expressly grants VPX the independent right to pursue injunctive relief in a court of competent jurisdiction,” the response states. “Therefore, PepsiCo cannot compel VPX’s claims to arbitration.”