Monster Energy Co. has filed a motion in a California federal court seeking an additional $167 million in its false advertising suit against Bang producer Vital Pharmaceuticals (VPX) on top of its $293 million jury verdict awarded earlier this year.
In the motion, Monster requests that the trial judge order VPX disgorge $77.4 million in unjust profits and award the lost profits Monster “suffered and continues to suffer” since April 22, including $30.7 million from May 1 to October 9, 2022, and $25.9 million from October 10 to February 23, 2023. The Corona, California-based energy drink giant is also asking for an additional $189,532 per day until VPX “enjoins their ongoing false advertising.”
Additionally, the company is seeking $6 million in punitive damages and approximately $28 million in fees and costs, as well as approval of about $21 million in attorney fees and costs of $6.7 million.
The filing comes after a nine-person jury in September found that VPX violated the Lanham Act by wrongfully marketing its “super creatine” supplement as a functional ingredient in Bang energy drinks. Monster argued during the trial that super creatine does not, in fact, increase creatine levels in the body.
“Riding a wave of Super Creatine marketing to billions of dollars in retail sales, [VPX] refused to risk exposing the truth with scientific testing of CLL,” states Thursday’s motion. “Although [VPX] boasted their products were backed by peer-reviewed studies, their own 2015 failed to ‘break CLL into free creatine and leucine.’”
Additionally, the jury found that VPX violated state law by trading secrets from Monster and interfering with the company’s retail contracts. However, VPX founder and CEO Jack Owoc was cleared of liability for the contract issue and was not a defendant for the trade secrets claim, according to Law360.
The four-year-long lawsuit, filed in 2018, ultimately saw the jury awarding $271.9 million to Monster for the Lanham Act violation – the full amount requested by the company – with additional damages tied to state violations.
In total, VPX was ordered to pay Monster $293 million in damages, the largest amount in Lanham Act history, according to Law360. The September jury verdict was not VPX’s only nine-figure court loss in 2022 – in July, the company lost a trademark with Monster and family-owned beverage brand Orange Bang and was ordered to pay $175 million as well as a 5% royalty fee for every can of Bang sold.
VPX filed for Chapter 11 bankruptcy protection in October as it forged ahead with efforts to rebuild the Bang distribution network following the termination of the brand’s agreement with PepsiCo earlier that year. During the September trial, VPX’s attorney David P. Muth cautioned that a decision favoring Monster could potentially propel the company into bankruptcy.
“After four years of litigation and five weeks of trial, a jury unanimously found [VPX] liable for maliciously interfering with Monster’s shelf space and misappropriating Monster’s trade secrets,” states the motion. “Monster now respectfully requests that the Court credit that verdict in granting [the company’s] requested relief and entering the Proposed Order and the accompanying permanent injunction.”