NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MONSTER ENERGY COMPANY, a Nos. 23-55451 Delaware corporation, 24-244 D.C. No. Plaintiff-Appellee, 5:18-cv-01882-JGB-SHK v. MEMORANDUM* VITAL PHARMACEUTICALS, INC., DBA VPX Sports, a Florida corporation,
Defendant,
and
JOHN H. OWOC, AKA Jack Owoc,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding
Argued and Submitted April 2, 2025 Pasadena, California
Before: GILMAN**, M. SMITH, and VANDYKE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. Defendant-Appellant John H. Owoc appeals from a final judgment of the
district court in favor of Plaintiff-Appellee Monster Energy Company (Monster), as
well as the district court’s entry of a permanent injunction against Owoc and Vital
Pharmaceuticals, Inc. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
Because the parties are familiar with the facts and background of this case, we
provide only the information necessary to give context to our ruling. Monster
brought an action against Owoc and Vital Pharmaceuticals alleging, inter alia, that
the defendants had violated Section 43(a) of the Lanham Act by falsely advertising
that their energy drink BANG contained “Super Creatine” when, in fact, it did not
contain creatine—let alone some super version of it—and did not provide any of the
health benefits associated with creatine. See 15 U.S.C. § 1125(a)(1)(B). The matter
proceeded to trial, with the district court largely granting Monster’s requests to
exclude three types of evidence: evidence about the results of surveys that Monster
originally commissioned, evidence of Monster’s own allegedly improper conduct,
and evidence from separate lawsuits between the parties about Monster’s conduct.
After a jury trial that lasted over five weeks, the jury returned a verdict in
favor of Monster, finding, inter alia, that Owoc and Vital Pharmaceuticals were
liable for false advertising under the Lanham Act. The jury awarded Monster over
$270 million in damages, and the district court entered a permanent injunction
2 23-55451, 24-244 prohibiting Owoc and Vital Pharmaceuticals from advertising that BANG contained
creatine or Super Creatine.
Owoc appeals the entry of the judgment in favor of Monster and the entry of
the permanent injunction. All of Owoc’s challenges relate to the district court’s
evidentiary rulings and, specifically, its exclusion of evidence. 1 We review the
district court’s exclusion of evidence for an abuse of discretion.2 See Unicolors, Inc.
v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054, 1063 (9th Cir. 2022).
1. The district court did not abuse its discretion in excluding evidence of
surveys (the InfoScout Surveys) that were originally commissioned by Monster but
proffered by Owoc. For a survey to be admissible, there must be a “proper
foundation for admissibility,” and the survey must be “conducted according to
accepted principles.” Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263
(9th Cir. 2001); see also Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand
Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010). Thus, although methodological
1 Although Owoc suggests in passing that the injunction is “overbroad,” he does not develop overbreadth as an independent argument, and it is clear that his challenge to the permanent injunction rises and falls with his evidentiary arguments. 2 Owoc argues that we should review the district court’s evidentiary rulings de novo because the rulings effectively prevented him from presenting a defense. We are unpersuaded; we review a ruling in limine de novo when that ruling entirely precludes the presentation of a defense, see, e.g., United States v. Biggs, 441 F.3d 1069, 1070 n.1 (9th Cir. 2006)—not when, as here, a ruling in limine makes it more difficult for a party to prove their defense.
3 23-55451, 24-244 concerns with a survey go to weight rather than admissibility, “[t]he proponent [of
the survey] must show that the survey was conducted in accordance with generally
accepted survey principles” in order for it to be admissible. Keith v. Volpe, 858 F.2d
467, 480 (9th Cir. 1988); see also M2 Software, Inc. v. Madacy Ent., 421 F.3d 1073,
1087 (9th Cir. 2005).
The district court acted within its discretion in excluding the InfoScout
Surveys (and evidence derived from them) because Owoc, the proponent of the
evidence, did not show that the surveys were conducted according to generally
accepted principles. The evidence at issue was a set of slides summarizing the
survey results—not the survey results or data itself. And although Owoc got an
extension of time from the district court to depose a witness from InfoScout who
could testify about the surveys, he failed to do so. Owoc also failed to identify any
other witness who could testify about the surveys’ principles, design, or
methodology. Contrary to Owoc’s counterarguments, even though the surveys were
originally commissioned by Monster, he still had the burden to show that they were
conducted according to generally accepted principles, and it was his failure to carry
this burden that caused the district court to exclude the evidence—not
methodological concerns.
2. The district court did not abuse its discretion in excluding evidence
about Monster’s own conduct, including evidence about Monster’s line of products.
4 23-55451, 24-244 First, Owoc challenges the district court’s exclusion of evidence that Monster
allegedly made unsupported claims about the health benefits of its existing line of
energy drinks. The district court excluded this evidence because it was irrelevant to
the merits of Monster’s Lanham Act claim or Owoc’s affirmative defenses. This
was not an abuse of discretion.
Only relevant evidence is admissible, see Fed. R. Evid. 402, and evidence is
relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” United States v. Curtin, 489 F.3d 935, 943 (9th
Cir. 2007) (quoting Fed. R. Evid. 401). Evidence of the allegedly false claims in
Monster’s line of existing products was entirely irrelevant to the key issue at trial:
whether Monster had shown that Owoc’s advertisement of BANG as containing
Super Creatine was false advertising under the Lanham Act. See Skydive Ariz., Inc.
v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012) (listing the elements of a
Lanham-Act false advertising claim). Indeed, such evidence would likely have
created a mini trial on Monster’s own advertisements and would have risked
confusing the jury. See Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 690
(9th Cir. 2001).
The district court also acted within its discretion in concluding that the
allegedly false advertising in Monster’s existing line of products was irrelevant to
5 23-55451, 24-244 Owoc’s unclean-hands defense.3 “To prevail [on an unclean-hands defense], the
defendant must demonstrate that the plaintiff’s conduct is inequitable and that the
conduct relates to the subject matter of its claims.” Fuddruckers, Inc. v. Doc’s B.R.
Others, Inc., 826 F.2d 837, 847 (9th Cir. 1987). “In applying the doctrine, ‘[w]hat
is material is not that the plaintiff’s hands are dirty, but that he dirtied them in
acquiring the right he now asserts, or that the manner of dirtying renders inequitable
the assertion of such rights against the defendants.’” Ellenburg v. Brockway, Inc.,
763 F.2d 1091, 1097 (9th Cir. 1985) (alteration in original) (quoting Republic
Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 349 (9th Cir. 1963), as amended
on denial of reh’g (Mar. 22, 1964)), abrogated on other grounds by Watkins v.
Westinghouse Hanford Co., 12 F.3d 1517, 1527–28 (9th Cir. 1993). The district
court acted within its discretion in concluding that evidence of Monster’s allegedly
false marketing of the health benefits of its own products was irrelevant to Owoc’s
unclean-hands defense because none of Monster’s products falsely purported to
contain creatine or Super Creatine, which is what is at issue in this case. Cf. POM
Wonderful LLC v. Coca Cola Co., 166 F. Supp. 3d 1085, 1096 (C.D. Cal. 2016).
3 Although Owoc nominally discusses the affirmative defenses of waiver and laches in his opening brief, he argues only that the district court erred in reasoning that “reliance” is an element of laches or waiver. He fails to show how evidence of Monster’s advertisement of its existing line of products would be relevant to the merits of these defenses, and we will not take up his mantle. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
6 23-55451, 24-244 The district court reasonably concluded that evidence that Monster had engaged in
a different form of false advertising was simply too far afield to give rise to an
unclean-hands defense.
Second, due to inadequate appellate briefing, Owoc has waived any challenge
to the district court’s ruling that evidence that Monster attempted to develop an
energy drink containing creatine was (1) relevant to the merits of Monster’s Lanham
Act claim for the purpose of defining creatine, but (2) irrelevant to Owoc’s
affirmative defenses. It is unclear from Owoc’s opening brief whether he intended
to raise this as a separate argument. Even if he intended to do so, all he asserts in
his brief is that the district court erred in assuming that reliance was an element of
each of his affirmative defenses. Fatally, that is all Owoc argues; he makes no effort
whatsoever to show how the evidence that Monster attempted to develop a creatine
drink could be relevant to any of his affirmative defenses. In light of this failure, we
decline to consider the issue further.4 See Indep. Towers of Wash. v. Washington,
350 F.3d 925, 929 (9th Cir. 2003).
3. The district court did not abuse its discretion in excluding evidence of
4 In any event, testimony was presented at the trial that Monster attempted to develop an energy drink containing creatine but was unable to do so. In light of this, it is hard to see how Owoc could be prejudiced by the district court’s ruling in limine. See Sidibe v. Sutter Health, 103 F.4th 675, 691–92 (9th Cir. 2024). Indeed, Owoc has pointed to no evidence that he was not permitted to introduce that would have borne on his affirmative defenses.
7 23-55451, 24-244 allegations about Monster that Owoc made in unrelated litigation between the
parties—and even if there was error in excluding some of this evidence, it would be
harmless.
First, the district court did not abuse its discretion in excluding evidence that
Reign was purportedly developed as a copycat of BANG minus the “Super
Creatine.” And even if that evidence should have been admitted, Owoc was not
prejudiced by its exclusion.
The district court did not abuse its discretion in concluding that the Reign
evidence was irrelevant to the merits of Monster’s false-advertising claim. Although
reasonable minds could come to different conclusions as to whether this evidence
could be relevant to materiality, the district court’s reasoning was not “illogical,”
“implausible” or “without support in inferences that may be drawn from the facts in
the record,” so there was no abuse of discretion. Unicolors, 52 F.4th at 1063
(quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).
Nor did the district court abuse its discretion in concluding that the evidence
was irrelevant to Owoc’s affirmative defenses. The Reign evidence was plainly
irrelevant to waiver, as it does not bear on whether there was “the intentional
relinquishment of a known right with knowledge of its existence and the intent to
relinquish it.” United States v. King Features Ent., Inc., 843 F.2d 394, 399 (9th Cir.
1988). It was also irrelevant to estoppel. For a party to establish estoppel, it must
8 23-55451, 24-244 establish that “1) the party to be estopped must know the facts; 2) he must intend
that his conduct shall be acted on or must so act that the party asserting the estoppel
has a right to believe it is so intended; 3) the latter must be ignorant of the true facts;
and 4) he must rely on the former’s conduct to his injury.” Id. The Reign evidence
does not bear on these elements. Moreover, the district court could reasonably have
concluded that the evidence was irrelevant to Owoc’s unclean-hands defense
because evidence about the development of Reign—which does not contain creatine
or purport to do so—is not sufficiently related to the claim that Owoc made false
advertisements that BANG contained creatine. See Fuddruckers, 826 F.2d at 847;
Ellenburg, 763 F.2d at 1097; see also POM Wonderful, 166 F. Supp. 3d at 1095. As
to laches, Owoc forfeited this argument by failing to raise it before the district court
and raising it for the first time on appeal. See Hillis v. Heineman, 626 F.3d 1014,
1019 (9th Cir. 2010). In any event, where, as here, “the plaintiff filed suit within the
analogous limitations period, the strong presumption is that laches is inapplicable.”
Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir. 2002).
Moreover, even if the district court did err in concluding that evidence about
the development of Reign was irrelevant, that would not justify reversal. The district
court also observed that even if the evidence had some probative value, it would still
exclude the Reign evidence because such evidence “would only confuse the jury and
cause undue delay.” The district court acted well within its discretion in concluding
9 23-55451, 24-244 that the minimal—if any—probative value of the Reign evidence was substantially
outweighed by the risk of jury confusion. See Fed. R. Evid. 403; see also City of
Long Beach v. Standard Oil Co. of Cal., 46 F.3d 929, 938 (9th Cir. 1995).
Additionally, evidentiary errors warrant reversal only if those errors were
prejudicial. Sidibe v. Sutter Health, 103 F.4th 675, 691–92 (9th Cir. 2024). Even
assuming that there was error in excluding the evidence that Reign was allegedly
developed as a copycat of BANG, Owoc was not prejudiced by the error because
substantial evidence was presented to the jury about how Reign was developed to
compete with BANG and that the products contained similar ingredients, except for
“Super Creatine.” Indeed, Owoc relied on this evidence in arguing that the
development of Reign shows that the inclusion of “Super Creatine” was not material
to BANG consumer purchasing decisions.
Second, the district court did not abuse its discretion in excluding evidence
that Monster’s products allegedly caused adverse health effects in consumers. This
evidence is irrelevant to the merits of Monster’s false-advertising claim, which
focuses on the false advertising in Owoc’s products, not Monster’s. Nor is it relevant
to Owoc’s affirmative defenses, including the doctrine of unclean hands.
Moreover—and fatally—even if this evidence had some minimal probative value,
the district court acted well within its discretion in concluding that the risk of unfair
prejudice substantially outweighed that probative value. See Fed. R. Evid. 403.
10 23-55451, 24-244 “Unfair prejudice is an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” United States v. Haischer,
780 F.3d 1277, 1281 (9th Cir. 2015) (quoting United States v. Anderson, 741 F.3d
938, 950 (9th Cir. 2013)). This is a classic case for Rule 403 exclusion. The
information sought to be admitted is—at best—of little probative value and could
lead the jury to decide the case on an improper ground: namely, that Monster’s
products are bad for consumers.
Third, the district court did not abuse its discretion by excluding evidence
purportedly showing that Monster is litigious and has a pattern of filing lawsuits
against competitors. But even assuming that this evidence has some probative value,
the district court acted well within its discretion in excluding it. Evidence regarding
a party’s litigious nature or proclivity for filing lawsuits is ordinarily excluded unless
it reveals that a party has previously made very similar claims and that these claims
were fraudulent. See McDonough v. City of Quincy, 452 F.3d 8, 20 (1st Cir. 2006);
1 Robert P. Mosteller et al., McCormick on Evidence § 196 (9th ed.), Westlaw
(database updated Feb. 2025); see also D’Lil v. Best W. Encina Lodge & Suites, 538
F.3d 1031, 1040 (9th Cir. 2008). Contrary to Owoc’s position, this is simply not one
of the exceedingly narrow circumstances in which evidence of a party’s litigious
nature is admissible. Cf. Yates v. Sweet Potato Enters., Inc., No. C 11-01950 SBA,
2013 WL 4067783, at *3 (N.D. Cal. Aug. 1, 2013) (unpublished) (admitting such
11 23-55451, 24-244 evidence, subject to a limiting instruction, when a party had filed over one hundred
identical lawsuits).
Fourth, we see no reversible error in the district court’s exclusion of evidence
about Monster’s purported smear campaign against BANG (including the Truth
About Bang campaign and the alleged interference with BANG’s shelf space).
The district court did not abuse its discretion in concluding that evidence about
the smear campaign was irrelevant to the merits of Monster’s false-advertising
claim. Contrary to Owoc’s position, it is hard to see how evidence that Monster
engaged in a smear campaign against BANG could bear on the “materiality” element
of its false-advertising claim. And although Owoc asserts on appeal that the smear-
campaign evidence was relevant to the damages that Monster was due on its Lanham
Act claim, he fails to address the district court’s ruling that he waived this argument
by failing to develop it.
Finally, we turn to whether this evidence was relevant to Owoc’s affirmative
defenses. The district court did not abuse its discretion in concluding that evidence
of the smear campaign was irrelevant to Owoc’s unclean-hands defense. Likewise,
the district court did not abuse its discretion in concluding that this evidence was
irrelevant to the defense of estoppel. See King Features Ent., 843 F.2d at 399
(discussing the elements of an estoppel defense). And even if we were to accept
Owoc’s argument that this evidence is relevant to the knowledge element of
12 23-55451, 24-244 estoppel, there was no prejudice since there was no way that Owoc would be able to
establish the other elements of the defense—including reliance, that Monster
intended to engender reliance, and that Owoc was ignorant of the false advertising
while Monster was aware of it. See id. As to waiver, Owoc fails to adequately
develop an argument as to how this evidence could be relevant to waiver. But even
assuming that the district court erred in concluding that this evidence was irrelevant
to a waiver defense, Owoc was not prejudiced by this ruling. Simply put, Owoc
could not establish that Monster somehow waived its rights to bring a false-
advertising claim by waging a campaign that, among other things, notified the public
that BANG did not contain creatine.
AFFIRMED.
13 23-55451, 24-244