Yah Kai World Wide Enterprises, Inc. v. Napper

• Court: District Court, District of Columbia
• Decided: February 21, 2018
• Docket: Civil Action No. 2011-2174
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) YAH KAI WORLD WIDE ) ENTERPRISES, INC., et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 11-cv-2174 (KBJ) ) GEOFFREY NAPPER, ) ) Defendant. ) )

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DAMAGES

At the conclusion of a three-day bench trial held in July of 2015, this Court

determined that Defendant Geoffrey Napper is liable for trademark infringement, unfair

competition, and conversion in connection with Napper’s appropriation and control of

the food-service business in Capitol Heights, Maryland that is presently named

“Everlasting Life Restaurant & Lounge.” See Yah Kai World Wide Enters., Inc. v.

Napper, 195 F. Supp. 3d 287, 326–27 (D.D.C. 2016) [hereinafter Yah Kai I]. Because

the liability and damages questions in this case were bifurcated for trial, the Court then

proceeded to hold an additional one-day bench trial to evaluate the monetary damages

and other remedies available to Plaintiffs Prince Immanuel Ben Yehuda and Yah Kai

World Wide Enterprises, Inc. Following the damages trial, the parties submitted

proposed findings of fact and conclusions of law that addressed the facts that had been

established relating to damages and the remedies to which Plaintiffs were entitled as a

result of Napper’s violations. (See Pls.’ Proposed Conclusions of Law on Damages (“Pls.’ Dam. COL”), ECF No. 111; Def.’s Proposed Conclusions of Law on Damages

(“Def.’s Dam. COL”), ECF No. 112; Pls.’ Corrected Proposed Findings of Fact on

Damages, ECF No. 113-1 (“3d Dam. FOF Tbl.”).) This Court’s own findings of fact

and conclusions of law appear below.

In short, after reviewing the evidence presented at both trials, the parties’

submissions, and the legal theories that the parties contend apply to the established

facts of this case, this Court finds that Plaintiffs have demonstrated that they are

entitled to monetary damages for Napper’s violation of the Lanham Act, 15 U.S.C.

§§ 1051–1129, in the form of (1) the profits that Napper’s infringing conduct generated,

(2) actual damages, and (3) attorney fees and costs—all of which overlap with the

damages Napper owes for unfair competition under Maryland common law. Plaintiffs

are also entitled to compensatory damages related to Napper’s tortious conversion of

both their tangible assets and certain intangible rights, along with prejudgment interest

related to the conversion damages, but Plaintiffs have not sustained their burden with

respect to any claims for injunctive relief, nor have they shown that an award of

punitive damages under Maryland common law is appropriate here.

Accordingly, JUDGMENT WILL BE ENTERED IN PLAINTIFFS’ FAVOR

against Napper for monetary damages in the amount of $2,598,849 (consisting of:

$1,856,144 for Napper’s profits and $545,407 for Plaintiffs’ actual damages for

trademark infringement/unfair competition, plus $142,864 in compensatory damages for

conversion and $54,434 in prejudgment interest on those conversion damages). In

addition, Plaintiffs will recover a yet-to-be determined amount of attorney fees and

2 costs arising from the litigation of Plaintiffs’ trademark infringement claims. A

separate order consistent with the Court’s findings and conclusions will follow.

I. BACKGROUND

A. The Court’s Liability Findings

This Court’s Findings of Fact and Conclusions of Law regarding Napper’s

liability for certain breaches of the Lanham Act and Maryland common law are laid out

in a lengthy Memorandum Opinion that the Court issued on July 3, 2016. ( See Findings

of Fact & Conclusions of Law, ECF No. 69.) The background facts are recited at length

in that opinion, and need not be reproduced here.

It suffices to recall now that Plaintiffs are members of the African Hebrew

Israelite Community (“the Community”), which follows a strict vegan diet, see Yah Kai

I, 195 F. Supp. 3d at 292, and that the Community founded and maintained a food-

service business called the “Everlasting Life Health Complex” (“the Complex”) through

the service and monetary contributions of its members, including Plaintiffs, see id. at

298–99. Napper—a former member of the Community—played a key role in starting

the Complex and served as its first manager, but Community leaders eventually

replaced Napper with Yah Kai World Wide Enterprises, Inc., an incorporated entity that

the Community created. See id. at 301–03. In response to the Community’s decision to

remove him from the manager’s post, Napper utilized his legal status as the

Community’s agent on the Complex’s lease to evict members of the Community and

Yah Kai and to assert total control over the business. See id. at 303–05. Plaintiffs filed

the instant legal action because Napper appropriated their business for himself, and has

continued to operate essentially the same food-service establishment using the

3 trademarked name “Everlasting Life” in the same location as that business operated

prior to the takeover. See id. at 305. Plaintiffs claimed that Napper’s operation of what

he now calls the “Everlasting Life Restaurant & Lounge” (“the Restaurant”) infringed

upon Prince Immanuel and Yah Kai’s trademark rights in violation of the Lanham Act,

and constituted unfair competition under both the Lanham Act and Maryland’s common

law. See id. at 293–94, 305. Plaintiffs also asserted that Napper’s theft of the

Complex, and the goods and records contained therein, constituted conversion of Yah

Kai’s tangible and intangible property in violation of Maryland’s common law. See id.

at 293–94.

After a bench trial regarding Napper’s liability, this Court found that Napper was

liable for his actions in forcibly evicting Plaintiffs from the premises, seizing their

equipment and goods, and re-opening the business at the same location with the same

moniker. See id. at 305–07. To be specific, this Court held that Napper had committed

trademark infringement under Section 32 of the Lanham Act and the tort of unfair

competition under both Section 43(a) of the Lanham Act and Maryland common law,

and the Court also found that Napper had converted tangible and intangible property

owned by Yah Kai in violation of Maryland common law. See id. at 308–26. 1

B. The Present Proceedings

After this Court issued its liability findings, the parties proceeded to engage in

additional discovery related to the question of damages, with the initial intention of

presenting the damages issues to a jury. (See Scheduling Order, ECF No. 73.)

However, Plaintiffs subsequently opted to litigate damages in the context of a second

1 The Court rejected Plaintiffs’ contention that Napper had usurped a corporate opportunity in violation of Maryland common law. See Yah Kai I, 195 F. Supp. 3d at 325–26.

4 bench trial. (See Notice, ECF No. 85.) That trial began on February 13, 2 017, and

concluded later that same day. During the trial, Plaintiffs offered the testimony of three

witnesses: Prince Immanuel, Napper, and Darrel Edwards (see Feb. 13, 2017 Trial Tr.

(“Damages Trial Tr.”) at 23:20–155:22); Edwards had served as Yah Kai’s accountant

and is currently the accountant for Napper and Fair and Balanced, LLC, which is the

umbrella corporation that Napper formed to manage his restaurant businesses , see Yah

Kai I, 195 F. Supp. 3d at 295–96. Napper elected not to call any witnesses or to

provide any independent evidence regarding damages, and the parties proceeded

immediately to closing arguments at the conclusion of Plaintiffs’ case -in-chief. (See id.

at 159:1–169:6.) The parties also agreed to keep the record open after trial so that

Edwards could supply documents that detailed the Restaurant’s expenses and gross

sales for the years 2011 through 2016. (See id. at 147:2–149:16; 153:3–154:23.) For

the most part, these documents were filed with the Court on February 22, 2017 . (See

Def.’s Doc. Produc. Reqs. Pursuant to Feb. 13, 2017 Ct. Order , ECF No. 105.)

The parties then engaged in the detailed process that this Court requires for

submitting proposed findings of fact in the wake of a bench trial. (See Order Regarding

Proposed Findings of Fact and Conclusions of Law, ECF No. 103, at 1 –2 (requiring the

proposed findings to be offered in different iterations and in table format); see also

Pls.’ Proposed Findings of Fact Regarding Damages, EC F No. 107-1 (“1st Dam. FOF

Tbl.”); Def.’s Proposed Findings of Fact on Damages, 109-1 (“2nd Dam. FOF Tbl.”); 3d

Dam. FOF Tbl.) 2 After the proposed findings of fact table was compiled and submitted,

the parties filed proposed conclusions of law. (See Pls.’ Dam. COL; Def.’s Dam. COL.)

2 The entire corpus of the findings that the parties have proposed to the Court appear in two tables that were completed in several iterations. (See Proposed Findings of Fact, ECF No. 64 (“3d Liability FOF

5 II. LEGAL STANDARD

“In an action tried on the facts without a jury . . . the court must find the facts

specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). “In

setting forth the findings of fact, the court need not address every factua l contention

and argumentative detail raised by the parties, [n]or discuss all evidence presented at

trial.” Moore v. Hartman, 102 F. Supp. 3d 35, 65 (D.D.C. 2015) (internal quotation

marks and citations omitted). Instead, “‘the judge need only make brief, definite,

pertinent findings and conclusions upon the contested matters’” in a manner that is

“sufficient to allow the appellate court to conduct a meaningful review.” Wise v.

United States, 145 F. Supp. 3d 53, 57 (D.D.C. 2015) (quoting Fed. R. Civ. P. 52(a)

advisory committee’s note to 1946 amendment); see also Lyles v. United States, 759

F.2d 941, 943 (D.C. Cir. 1985) (“One of [Rule 52(a)’s] chief purposes is to aid the

appellate court by affording it a clear understanding of the ground or basis of th e

decision of the trial court.” (internal quotation marks and citation omitted)).

III. FINDINGS OF FACT PERTAINING TO THE MONETARY DAMAGES OWED TO PLAINTIFFS AND OTHER REQUESTED REMEDIES

This Court’s findings of fact with respect to Plaintiffs’ request for damages and

injunctive relief are based on the testimony and exhibits that the parties submitted

during the second bench trial, the Court’s observation of the witnesses’ demeanor , the

Court’s conclusions regarding the witnesses’ credibility, the parties’ stipulations, and

the record as a whole, which includes the evidence offered in the liability bench trial.

Tbl”); 3d Dam. FOF Tbl.) In the instant Memorandum Opinion, citations to specific material in the tables will reference the row number or numbers in which the material is located, followed by the relevant column or columns, which are designated “A,” “B,” and “C.” Thus, a pincite to “3d Dam. FOF Tbl. at 38-40 (A)” corresponds to lines 38 through 40 under Column A.

6 A. Overview Of The Evidence Presented During The Damages Trial

As explained above, Plaintiffs called Prince Immanuel, Napper, and Edwards to

the stand during the bench trial on damages, and Defendant Napper opted not to put on

any case-in-chief. Prince Immanuel was the first to testify. (See Damages Trial Tr. at

24:1–34:6 (Prince Immanuel).) Among other things, his testimony addressed his

ownership of the Everlasting Life trademark, the recent expiration of his trademark

registration, and the agreements he had with other individuals regarding their use of

that trademark. In addition, Prince Immanuel testified about Napper’s use of the

Everlasting Life trademark to promote the Restaurant after Napper evicted Yah Kai

from the Complex, including Napper’s use of the trademark with respect to internet

advertising. For the most part, Prince Immanuel appeared to testify candidly, although

he avoided providing direct answers to questions regarding the current registration

status of the Everlasting Life trademark. (See, e.g., id. at 30:5–11 (“Q. Have you been

made aware [] by either your counsel or any other sources that you are no longer the

holder of that trademark? A. That’s rumored. Q. Rumored? A. We heard that, but

again, as I’ve said, we’re following up on that to clarify the situation.”).)

Next, Plaintiffs called Napper as an adverse witness. (See id. at 34:14–130:21

(Napper).) While testifying, Napper spoke extensively about his management of the

Restaurant and its current parent corporation, Fair and Balanced LLC. Napper’s

testimony also touched upon the contents of Napper’s personal tax returns; the contents

of Fair and Balanced’s tax returns; Napper’s purported ownership of the equipment and

inventory present within the Complex on November 15, 2011; the gross sales for the

various restaurants Fair and Balanced LLC manages and the amount of those sales that

are attributable to the Restaurant; Napper’s accountant’s handling of Fair and Balanced

7 LLC’s profit and loss statements; the number of Everlasting Life employees; Napper’s

and the Community’s relationships to the Restaurant; Napper’s use of the Everlasting

Life moniker to promote the Restaurant; and Napper’s eviction of Yah Kai on

November 15, 2011. (See id.) Napper was frequently unable to respond to questions

regarding the Restaurant’s finances from 2011 to 2016 (see, e.g., id. at 63:4–7), and his

testimony regarding the equipment and assets he converted on November 15, 2011 was

imprecise and, at times, evasive (see, e.g., 113:25–114:4 (“Q. And within the next

several days you then took that business and everything that was in it and you reopened

it in your own name; right? By that I mean you opened it as your restaurant? A. As

Everlasting Life.”)). Furthermore, throughout his testimony, Napper adamantly—and

apparently sincerely—contended that he was the rightful owner of the Everlasting Life

business. (See, e.g., id. at 99:9–17 (“Your honor, again with all due respect to you and

the decision you made . . . Everlasting Life has been my business . . . and your decision

didn’t change my heart.”).)

At the conclusion of Napper’s testimony, Plaintiffs called Everlasting Life’s

perennial accountant, Darryl Edwards. (See id. at 132:7–155:22 (Edwards).) Edwards

testified about how he had prepared tax returns for Napper and for Fair and Balanced

LLC, and also how the profit and loss statements for each of Napper’s various

restaurants are generated. (See id.) Throughout his testimony, Edwards appeared

reluctant to answer questions regarding the Restaurant’s profits and expenses, and he

admitted that he had not yet complied with Plaintiffs’ subpoena demanding

individualized profit and loss statements for the Restaurant. (See id. at 142:5–143:10.)

Given Edwards’s incomplete testimony, the parties and the Court agreed to leave the

8 record open so that Edwards could provide these missing documents for the Court’s

review after trial. (See id. at 148:23–149:13; 154:21–23.)

In addition to the live testimony presented during the damages trial, the parties

stipulated to the admission of several documents, including: (1) all exhibits admitted at

the liability trial; (2) personal tax returns for Napper, from 2012–2015 (see Pls.’

Damages Trial Ex. 1, ECF No. 114); (3) tax returns for Fair and Balanced LLC, from

2011–15 (see Pls.’ Damages Trial Ex. 2, ECF No. 114-1); (4) a 2015 notice regarding

Prince Immanuel’s Trademark Registration for Everlasting Life (see Pls.’ Damages

Trial Ex. 4, ECF No. 114-2); (5) advertisements Napper generated for the Everlasting

Life Restaurant and Lounge (see Pls.’ Damages Trial Ex. 5, ECF No. 114-3); and (6)

one of Napper’s Facebook posts about the bench trial in this case (see Pls.’ Damages

Trial Ex. 8, ECF No. 114-4). 3 The parties also moved into the record various other

summary reports and evaluations pertaining to the financial status of the Restaurant and

Napper’s other businesses, including: (1) a written report authored by Jerome S. Paige

& Associates, LLC that purports to analyze Fair and Balanced LLC’s sales and costs

(see Pls.’ Damages Trial Ex. 11, ECF No. 114-5); (2) a spreadsheet titled “Everlasting

Life Restaurant & Lounge Expenses by Vendor Detail ” that allegedly demonstrates the

Restaurant’s costs and expenses from 2011–15 (Def.’s Damages Trial Ex. 1, ECF No.

105-1); (3) a summary of the Restaurant’s gross sales and claimed profits (Def.’s

Damages Trial Ex. 2, ECF No. 105-2); and (4) a list of itemized costs and expenses for

the Restaurant in 2014 and 2015 (Def.’s Damages Trial Exs. 3 & 4, ECF Nos. 105-3 &

3 The parties submitted most of these documents to the Court in hard copy only and did not file them on ECF. The Court has posted sealed versions of all the financial records that were provided to it in this case that the parties had not previously posted in ECF . (See Pls.’ Damages Trial Exs., ECF No. 114.)

9 105-4). On the whole, these documents seek to generally address and illuminate the

financial situations of Napper, Fair and Balanced LLC, and Everlasting Life between

the years of 2011 and 2015. They are also relevant to this Court’s conclusions

regarding the status of the Everlasting Life trademark, Napper’s state of mind regarding

his use of that trademark, and the value of Yah Kai’s equipment and inventory insi de

the Complex on the night of November 15, 2011.

B. Noted Record Deficiencies And How This Court Has Addressed Them

This Court’s findings of fact, as well as its ultimate determinations regarding the

damages owed to Plaintiffs, come with a caveat: the parties in this matter have not

presented the kinds of detailed business documentation that one would expect to see in

a case such as this one, and this dearth of information has stymied the Court’s

evaluation of the monetary damages owed to Plaintiffs. For example, due to Napper’s

bookkeeping and business practices, this Court has had great difficulty determining the

costs and expenses that the Restaurant incurred from 2011 to 2015—and, thus, the

extent of the Restaurant’s profits for that same time period. The difficulty has

primarily arisen because, in addition to Everlasting Life, Napper opened two other

restaurants (named “Evolve” and “Vegaritos”) in this same timeframe (see Damages

Trial Tr. at 55:19–56:19 (Napper)), and he has managed all three foodservice

establishments through a single corporate entity—Fair and Balanced, LLC (see 3d

Liability FOF Tbl. at 96, 103 (A, B)). And rather than accounting for these businesses

separately, Napper and his accountant appear to have commingled the proceeds and

expenses from all of these restaurants in Fair and Balanced LLC’s records of expenses

and tax returns. (See, e.g., Everlasting Life Restaurant & Lounge Expenses by Vendor

Detail (“Itemized Expenses”) (attached hereto as Appendix A), Def.’s Damages Trial

10 Ex. 1, ECF No. 105-1, at 177, 182 or A8–A9 (showing itemized rental payments for

Napper’s other restaurants Evolve and Vegaritos); see also Fair and Balanced’s Tax

Returns FY 2011–15; Damages Trial Tr. at 55:5–58:8.) Thus, despite the fact that the

defense has submitted certain financial statements as evidence pertinent to the

calculation of damages, there is considerable uncertainty regarding the profits that

Napper actually derived from Everlasting Life during the relevant timeframe. 4

The additional fact that Napper has occasionally compensated himself (and his

family members) directly—using business proceeds either to repay “loans” owed to his

family or to pay himself and family members directly as “contractors”—further

compounds the Court’s uncertainty about the trustworthiness of the financial records

that have been presented. (See, e.g., Itemized Expenses at 64–65, 82, 85, 94 or

Appendix A at A1–A5 (identifying expenses related to Napper or his family members

with labels such as “[l]oan,” “[r]eimbursement,” and “[c]ontractor”); see also Damages

Trial Tr. at 43:4–44:23.) 5 Napper also appears at times to have conflated the revenue

stream of his businesses with his own personal income; in fact, during the trial, Napper

repeatedly maintained that goods or services that he purchased with proceeds earned by

the business were his in a manner that suggested that he had purchased them personally.

(See, e.g., July 14, 2015 Trial Tr. at 80:15–81:20 (Napper); Damages Trial Tr. at 167:3–

18 (Def.’s Counsel).)

4 Notably, during the damages trial, Napper did specifically testify that approximately 90% of the expenses listed in the Itemized Expenses document (ECF No. 105-1) were incurred with respect to the operation of Everlasting Life. (See Damages Trial Tr. at 115:13–116:2.) But the Court finds this testimony not credible, based on its own review of that document and in light of the bookkeepi ng practices just described. 5 The Itemized Expenses document notes payments made to “Dr. Baruch,” which is an alias that Napper uses in his dealings with the Community. ( See, e.g., Napper’s Facebook Post.)

11 In short, these unorthodox accounting practices and unexplained discrepancies

undermine the accuracy of many of Defendant’s financial documents, including such

significant records as Fair and Balanced LLC’s tax returns for 2011–15 (ECF No. 114-

1); Napper’s personal tax returns for 2012–15 (ECF No. 114); the list of Itemized

Expenses that Edwards submitted to the Court after the damages trial (ECF No. 105-1);

and portions of the Supplement Itemized Costs and Expenses for Everlasting Life in

2014 and 2015 (ECF Nos. 105-3 & 105-4). And because Plaintiffs’ expert report relies

on several of these documents to reach its conclusions (see Expert Report, ECF No.

114-5, at 1–2), that report is rendered suspect as well. The Court further notes that in

addition to the significant substantive uncertainty regarding the financial information

that Napper has provided, various procedural deficiencies pertaining to the format in

which the information has been presented are also clearly manifest. 6

For present purposes, it is also important to note that Napper never submitted

any documentation whatsoever regarding the Restaurant’s sales, profits, or expenses for

the 2016 or 2017 calendar years. Plaintiffs served a subpoena seeking the 2016

information prior to the commencement of the damages bench trial, but Napper and his

accountant failed to produce this information prior to trial. During the damages trial,

the Court directly ordered Napper and his accountant to provide this documentation.

6 The most egregious example is “Defendant’s Exhibit 1” (see Itemized Expenses, ECF No. 105-1), which is the only document that the defense presented before trial, and which purports to be a comprehensive spreadsheet that lays out the Everlasting Life Restaurant & Lounge’s “Expenses By Vendor Detail” from January 2011 through December 2015. Napper has presented the Court with a bound 8 ½ by 11-inch book in portrait orientation—rather than an actual spreadsheet—and thus has rendered virtually incomprehensible data that is ordinarily displayed on the computer across a much wider field and is critical to this case. It appears that d efense counsel merely printed off the information sequentially, and made no effort to line up subsequent expense fields with the vendor to whom they relate or otherwise explain how the Court is supposed to access the information, and thus, as the Court explained at trial, this document borders on useless. (See Damages Trial Tr. at 169:20– 23.) No correction or update has ever been submitted.

12 (See Damages Trial Tr. at 154:21–23 (Edwards).) And while Napper’s accountant

acknowledged that a printout of such information would “not [be] a problem” ( id. at

153:5–15, 154:12–20), Defendant’s tardy submission of other documents more than one

week later did not contain this information; instead, defense counsel represented that

“[t]he accountant has not reconciled the raw data” and thus “this information is not in

the Defendant’s possession at this time,” (Def.’s Doc. Produc. Reqs. at 2).

For its part, Yah Kai has presented no records that represent the actual value of

the equipment, goods, and inventory that Napper seized when he evicted Plaintiffs on

November 15, 2011. To be sure, Yah Kai is not entirely at fault for this deficiency,

because its business records and any pre-seizure inventory of tangible assets remained

within the Complex and within Napper’s control following his seizure of the facility in

November of 2011. (See Damages Trial Tr. at 32:6–8 (Prince Immanuel).) However,

with a potential legal claim against Napper on the horizon, this Court sees no reason

why Yah Kai failed to take steps to generate a roughly contemporaneous accounting of

its assets (albeit from memory), which would have been a far superior form of evidence

than the testimony that Plaintiffs presented at trial regarding the restaurant equipment

and other tangible items that Yah Kai had purchased prior to the seizure. (See id. at

31:15–32:8.) 7

In fairness, this Court also fully acknowledges that the parties’ failure to gather

and present the kinds of business records that are ordinarily required to generate a

reasonably accurate damages calculation in a trademark infringement case stems in

7 Napper also apparently failed to assess the equipment and other assets of Yah Kai’s that he secured upon his seizure of the facility. Therefore, the record is entirely devoid of specifics regarding the value of most of the tangible goods held within the facility on November 15, 2011. See Yah Kai I, 195 F. Supp. 3d at 321.

13 large part from their nontraditional beliefs regarding property ownership. See Yah Kai

I, 195 F. Supp. 3d at 298. That is, as this Court explained in Yah Kai I, the parties here

were once all members of the African Hebrew Israelite Community, which emphasizes

communal ownership and does not recognize individual property rights with respect to

Community-related endeavors. (See 3d FOF Tbl. at 19 (A, B); see also July 15, 2015

Trial Tr. at 55:11–15, 106:3–13, 109:23–110:20 (Prince Immanuel).) 8

But the Community’s culture is only a partial explanation for the record

deficiencies that are apparent in this case; it is also clear that some of the problems are

directly attributable to actions of Yah Kai and Napper in the context of the instant

dispute. For example, Napper served Yah Kai with a notice to vacate the Complex

twice before the eviction date—on July 20, 2011, and on October 15, 2011, see Yah Kai

I, 195 F. Supp. 3d at 304—which means that Yah Kai was fully aware of Napper’s

claims of ownership and had plenty of time to move, copy, or otherwise secure its

business records. It did not do so. Similarly, Napper refused to return Yah Kai’s

business documents and other assets when he evicted Plaintiffs from the Complex , and

has presumably misplaced those records, since neither party has presented them in this

case. See id. at 323. Furthermore, as noted above, neither party undertook a detailed

accounting of the converted items after the eviction, despite being fully aware that they

8 This means that members of the Community regularly “assist[ed] other members of the community” financially (Damages Trial Tr. at 89:13–14 (Napper)), including by pooling their resources and/or offering their time, money, and possessions without expecting compensation. Napper testified that “that was part of our code . . . and when somebody was challenged . . . we came together collectively and addressed it.” (Id. at 89:15–22.) Community members also apparently believe that everything they built, and all of the resources that were brought to the effort, belonged to the Community; therefore, the Community’s members did not always document what items or assets belonged to whom as a matter of law. (See, e.g., id. at 88:7–13 (noting that Napper did not document payments the community gave him).)

14 were engaged in a contentious legal dispute regarding ownership of the business. And

perhaps most significantly, throughout this litigation, Napper has repeatedly failed to

adhere to his discovery obligations, which has both delayed the proceedings and

hampered Plaintiffs’ ability to establish an accurate quantum of damages. 9

All this means that the instant record provides an exceedingly thin factual

foundation upon which to rest this Court’s conclusions regarding the monetary damages

owed to Plaintiffs. As a general matter, these record deficiencies have broad

implications, because a plaintiff generally bears the initial burden of proof regarding

damages, and that burden includes establishing the amount of damages owed or gross

sales earned by a preponderance of the evidence. See Fishman Transducers, Inc. v.

Paul, 684 F.3d 187, 192 (1st Cir. 2012) (“The ordinary rule in civil cases is proof by a

preponderance of the evidence . . ., and the text of section 1117 does not prescribe a

different burden of proof.”). However, it is also well established that, in trademark

infringement and unfair business practice cases, the evidence a plaintiff proffers related

to the sales arising from the infringing use should be construed liberally (i.e., not

9 In one paradigmatic example of the many epic discovery failures that took place in this case, Plaintiffs were forced to call both Napper and another witness back to the stand during the bench trial on liability (after they had previously testified) because Napper had not provided requested documents during the pretrial discovery process. (See Pls.’ Mot. to Recall Def. Napper, ECF No. 59, at 1.) The requested documentation was significant, because it revealed a written settlement agreement between Napper and Plaintiffs’ landlord, Kingdom Management, regarding a PEPCO rebate—an intangible right to recover on a debt of which Plaintiffs were previously unaware. ( See id.) Similarly, Napper repeatedly failed to produce requested business and tax records, including data identifying gross sales attributable to the Restaurant that did not surface until after the bench trial on damages had concluded. These delays occurred despite Plaintiffs’ repeated, urgent requests for exactly this information. ( See Pls.’ Mot. to Enlarge Discovery, ECF No. 83, at 2 (discussing Defendant’s obligation to supplement existing document requests); Pls.’ Emergency Mot. for an Order to Show Cause Regarding Darrel Edward’s Non-Production of Geoffrey Napper’s Tax Return (“Pls.’ Emergency Mot.”), ECF No. 89; Def.’s Doc. Prod. Requests; see also Damages Trial Tr. at 140:5–13, 142:11–24, 149:2–11 (Edwards) (acknowledging that Plaintiffs had subpoenaed such infor mation, that Defendant had not provided it, and that it would take “[p]robably . . . a day” to pull it together).)

15 mechanically) to ensure that the victimized party receives an adequate recovery for the

defendant’s infringing conduct. Cf. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251, 262 (1916) (“[I]t is more consonant with reason and justice that the owner of

the trademark should have the whole profit than that he should be deprived of any part

of it by the fraudulent act of the defendant. It is the same principle which is applicable

to a confusion of goods. If one wrongfully mixes his own goods with those of another,

so that they cannot be distinguished and separated, he shall lose the whole, for the

reason that the fault is his; and it is but just that he should suffer the loss rather than an

innocent party, who in no degree contributed to the wrong.”).

Moreover, and importantly, the Lanham Act grants the factfinder significant

discretion to determine the appropriate remedy, see Skydive Ariz., Inc. v. Quattrocchi,

673 F.3d 1105, 1111–12 (9th Cir. 2012), so long as the Court exercises that discretion

based on the standards that the D.C. Circuit has laid out for making these kinds of

awards, see Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 641–42 (D.C. Cir. 1982).

Thus, even where the record fails to substantiate fully the parties’ specific contentions

regarding the extent of the defendant’s profits and/or the scope of the infringing sales,

the factfinder can undertake to estimate those figures, and to adjust them as needed, in

order to arrive at a fair and just damages figure, given the facts presented and the goal

of ensuring that justice is served. See Skydive Ariz., 673 F.3d at 1110 (requiring only

that “the [factfinder’s] award was supported by reasonable inferences and assessments,

based on substantial evidence in the record”).

C. The Particular Factual Bases For This Court’s Damages Calculation

With that said, this Court will now undertake to set forth its findings of fact

pertaining to its calculation of the monetary damages that Napper owes to Prince

16 Immanuel and Yah Kai as a result of the violations that the Court identified in its

liability opinion. In the main, the Court’s findings concern: (1) the tangible and

intangible assets of Yah Kai that were inside the Complex on the date of the eviction

and that were converted when Napper took over the business; (2) the estimated profits

that the Restaurant has generated during Napper’s infringing use of Prince Immanuel’s

trademark; and (3) the actual damages Plaintiffs suffered due to Napper’s infringement

and unfair competition. The Court also addresses certain facts that have not been

established in the instant record, and that thus cannot be the basis for other requested

remedies such as punitive damages or injunctive relief.

1. Certain Furniture, Equipment, And Other Tangible And Intangible Assets Belonging To Yah Kai Were Present In The Complex When Napper Took Over That Business

When Napper evicted Yah Kai from the Complex on the evening of Novem ber

15, 2011, he seized control of all of the furniture, equipment, records, and inventory

that was present at the facility on that date, including the food inventory, the food-

production equipment, restaurant supplies, administrative supplies and document s, and

computers. (See July 15, 2015 Trial Tr. at 102:7–20, 103:4–24 (Prince Immanuel);

Damages Trial Tr. at 114:5–11 (Napper).) Yah Kai and other members of the

Community attempted to retrieve these items on the night that Napper evicted them in

November of 2011, but Napper requested that the police eject them from the premises

before Yah Kai’s property could be accessed and removed. Yah Kai I, 195 F. Supp. 3d

at 305. (See also Damages Trial Tr. at 113:2–23 (Napper).) Napper then changed the

Complex’s locks the next day, preventing Yah Kai from recovering any of the property,

equipment, inventory, or records housed within the Complex. (See July 14, 2015 Trial

Tr. at 100:21–101:1.)

17 The record establishes the following regarding the equipment and invent ory that

was within the Complex when Napper executed his takeover. A few months p rior to

Napper’s takeover of the Complex, its manager (Yah Kai’s president, William Young)

had provided information to Yah Kai’s accountant about the value of the furniture a nd

equipment that Yah Kai had purchased for the Complex. (See Dep. of William Young,

Damages Trial Ex. 8 (“Young Dep.”), ECF No. 43-4, at 95:22–96:13.) As the president

of Yah Kai and the one who made purchases on Yah Kai’s behalf, Young would have

had the personal knowledge necessary to provide a reasonable estimate of the value of

such goods. (See id. at 10:9–10; 17:16–19; 27:13–19.) In other words, Young was an

individual “familiar with the condition” of the Complex’s equipment and inventory, and

thus was “competent to testify as to its value.” Checkpoint Foreign Car Serv., Inc. v.

Sweeney, 242 A.2d 148, 149 (Md. 1968).

During the deposition testimony that Young provided in 2014, in the context of

this litigation, Young was asked to review a document dated June 27, 2011—titled

“balance sheet”—that purportedly listed the value of the “furniture and equipment”

within the Complex as $17,864, based on the aforementioned figures that Young had

provided to his accountant. (Young Dep. at 96:1, 96:4; see also id. at 95:22–96:8.) 10

Because Young’s deposition testimony is undisputed, and is the only available evidence

of the value of any of Yah Kai’s tangible assets at the time of conversion, this Court

considers Young’s testimony about a business record that reports the value of

10 The record does not contain the actual balance sheet document, but Young’s deposition testimony (which was entered into evidence by consent of the parties because Young is now deceased) specifically identifies and addresses it. (See Young Dep. at 95:22–96:20 (summarizing the document’s contents in response to questioning).)

18 equipment and inventory to be reliable evidence regarding the minimum market value

of Yah Kai’s tangible assets within the facility at that time.

Additionally, because Napper seized certain records that Yah Kai had been

storing inside the Complex and used those documents to secure a substantial rebate

from the Complex’s utility provider (as fully described in the Court’s prior

memorandum opinion regarding liability, see Yah Kai I, 195 F. Supp. 3d at 323–25), the

Court finds that the value of the intangible property right that Napper converted when

he secured the utility rebate for himself is the negotiated rebate amount —i.e., $125,000.

(See id. at 325; see also July 15, 2015 Trial Tr. at 92:6–16; 93:15–94:6 (Allen).)

2. During Napper’s Infringing Use Of The Everlasting Life Trademark, The Restaurant Has Generated Significant Sales And Has Also Incurred Some Costs

Napper reopened the Complex under the name “Everlasting Life Restaurant &

Lounge” a few days after Plaintiff’s eviction, and he has continued to operate that food-

service business ever since. (See Damages Trial Tr. 99:4–6; 113:25–114:24 (Napper).)

As the owner of the Everlasting Life trademark, Prince Immanuel formally notified

Napper of his ownership of the mark two days before the eviction, and thereby

specifically alerted Napper to the prospect of the pot ential infringement that would

arise due to his then-threatened takeover of the business. (See 3d Liability FOF Tbl. at

132 (A, B); Trademark Infringement Notice from Prince Immanuel, Pls.’ Liability Trial

Ex. 15, ECF No. 29-1.) Prince Immanuel’s letter of November 13, 2011 specifically

informed Napper that his use of the “Everlasting Life” trademark was unauthorized, and

expressly revoked any license to use that mark that Napper may have believed he

possessed. (See Trademark Infringement Notice from Prince Immanuel.) Moreover,

19 Napper received and understood this notice, but ignored it. (See Damages Trial Tr. at

99:21–100:20 (Napper).)

Thus, Napper’s infringing use of Price Immanuel’s trademark was entirely

knowing; indeed, during the trial, Napper admitted that he had continued to operate the

Restaurant in violation of the “Everlasting Life” trademark despite the notice, partly

because of his antagonistic personal relationship with Prince Immanuel, who Napper

believed “didn’t look out for [his] best interest[s].” (Id. at 100:18; see also id. at

100:13–20.) And even after this Court issued its memorandum opinion finding Napper

liable for infringing upon Prince Immanuel’s trademark, Napper has persisted in his

willful use of the Everlasting Life trademark in connection with his operation of the

Restaurant, because he still maintains that he is the rightful owner of the Complex.

(See id. at 99:4–17.)

Since Napper’s November 2011 takeover of the business, the Restaurant has

generated significant (albeit decreasing) gross sales. Between November of 2011 and

December 2015, the business had a total “ordinary income” of $3,555,428, which is

comprised of $136,475 in November and December of 2011; $1,019,788 in 2012;

$1,084,287 in 2013; $771,341 in 2014; and $543,537 in 2015. (See Everlasting Life

Restaurant & Lounge Gross Profit, January 2011 through December 2015 (“Everlasting

Life Gross Sales Summary”) (attached hereto as Appendix B), ECF No. 105-2, at 1 or

B1.) Meanwhile, the business spent $1,232,518 on the goods needed for sales during

this same timeframe—specifically, $51,030 in November and December of 2011;

$482,464 in 2012; $449,206 in 2013 11; $197,617 in 2014; and $52,201 in 2015. (See

11 The Everlasting Life Gross Sales Summary that Defendant provide d, attached hereto as Appendix B) states that the “Costs of Goods Sold” in 2013 was $449,206. Given all of the other years have a

20 id.) It appears that a total of $379,234 was paid for rent (excluding late fees) to

Kingdom Management, the Restaurant’s landlord, between November 2011 and the end

of 2015. (See Itemized Expenses at 95–96, 298–99 or Appendix A at A6–A7, A10–

A11.) 12 The Court also finds that Napper has demonstrated $227,210 in operating

expenses relating to his infringing use of Prince Immanuel’s trademark in 2014 (see

Supplement Itemized Costs and Expenses for Everlasting Life 2014 (attached hereto in

Appendix C), ECF No. 105-3, at 1 or C1), and $223,434 in operating expenses relating

to his infringing use of the trademark in 2015 (see Itemized Costs and Expenses for

Everlasting Life 2015 (attached hereto in Appendix C), ECF No. 105-4, at 1 or C2). 13

negative value for the “Cost of Goods Sold” column, and the value refers to a “Cost[,]” the Court presumes this to be a clerical error and treats the “Costs of Goods Sold” in 2013 as costs that are to be subtracted from ordinary income. 12 Determining Napper’s rental expenses was a tedious and frustrating affair, largely due to the lack of documentation for rental payments for some months. For example, the Itemized Expenses document suggests that Napper did not pay rent in August 2012, March 2015, or September 2015, but, in other months such as October 2013, Napper paid significantly more than the amount due for that month — $10,771.48 instead of the $7,645.63 that appears to have been the typical rent during that time period. (See Itemized Expenses at 96, 299 or Appendix A at A7, A12.) The Court has thus settled on the following approach to arriving at the total cost of actual payments. Relying on the Itemized Expenses document, the Court determined what Napper’s rental payments were likely to be for each month, based on the assumption that (1) Napper paid rent every month, and (2) the monthly rent stayed constant from month to month unless there was a r ent increase borne out by the next few months. The estimated monthly rent amounts are: $7,000 (November 2011 –December 2011); $7,076.97 (January 2012 – October 2012); $7,351.13 (November 2012 – June 2013); $7,645.63 (July 2013–April 2014); $7,624.67 (May 2014–December 2014); $7,926.93 (January 2015–April 2015); $8,213.65 (May 2015–October 2015); $8,681.02 (November 2015); and $8,531.02 (December 2015). ( See Itemized Expenses 95–96, 298–99 or Appendix A at A6–A7, A10–A11.) Multiplying each of these amounts by the number of months for which that amount was owed and adding up the resulting sums produces the estimated total value of Napper’s rental expenses between 2011 and 2015 —$379,234.06. 13 The Court arrived at these operating-expense figures by examining certain documents that Napper provided (see Supplement Itemized Costs and Expenses for Everlasting Life 2014; Supplement Itemized Costs and Expenses for Everlasting Life 2015, both attached hereto as Appendix C), and excluding certain listed expenses that the Court deeme d inaccurate and/or impermissibly included for the purposes of the instant calculation. For example, for 2014, the Court did not consider: the listed payments made for rent or the Costs of Goods Sold (since those expenses had already been accounted for and should not be deducted twice from the business’s revenue); “[c]ontractor” expenses (given Napper’s habit of compensating himself or his family through these categories); and expenses for “[t]ravel[,]” “[m]iscellaneous[,]” and “gifts” (because it is uncl ear how those expenses relate to Napper’s infringing use). The Court also excluded these same categories of expenses for 2015 for the same reasons (to the extent that the same categories appeared in 2015), the “[r]eimbursement” expenses for the same reaso n that it did not consider the “[c]ontractor” expenses in 2014, and 2015 expenses for “[c]ashier error” or “[g]ift card payment” in the absence of an explanation of how those expenses were necessary for the

21 3. Napper Genuinely (But Mistakenly) Believes That He Is, And Always Was, The Rightful Owner Of The Business And The Everlasting Life Trademark

Napper’s testimony during both the liability and damages trials had one

consistent theme: his belief that the Everlasting Life brand and associated food -service

business belongs to him. (See, e.g., July 14, 2015 Trial Tr. at 142:16–23 (“My

testimony is that my business, which is the food business that I established in 1995 . . .

The name [of that business] was Everlasting Life.”); Damages Trial Tr. at 99:14–17

(“And Everlasting Life had been my business. I established it, and I established it for

the purposes that it serves now, and [the Court’s] decision didn’t change my heart.”).)

Make no mistake, in the wake of this Court’s decision in Yah Kai I, Napper knew that

running the Everlasting Life Restaurant & Lounge violated Prince Immanuel’s legal

rights. (See Damages Trial Tr. at 100:11 (“I realized what was written on the

paper[.]”).) But Napper was unwavering in his conviction that his pivotal role in

conceiving of and managing the business from its inception conferred upon him the

right of ownership, even if the financial equity belonged to someone else and the

trademark was registered under someone else’s name. (See id. 100:11–13 (“So I

realized what was written on the paper, but I knew what was righ t. And I knew that I

was, I was the person who did all of this.”).) In other words, Napper has consistently

expressed certainty that the business formerly known as “Everlasting Life Health

Complex” and its accompanying trademark belongs to him (without regard to the

financial stake of Plaintiffs and other Community members), apparently because of a

conception of property ownership that differs sharply from the precepts that are

production of the Restaurant’s goods and services. (See Part IV.A.2.c, infra.)

22 recognized under federal and Maryland law. See Yah Kai I, 195 F. Supp. 3d at 311

(explaining that, as the first user of the trademark, Prince Immanuel owned the

Everlasting Life trademark and the right of businesses to use that trademark).

Thus, Napper is mistaken. But this Court finds that his mistaken ownership

convictions are earnestly and sincerely held, and therefore, Napper’s related actions in

recovering what he viewed as his own property are not properly characterized as

malicious. See Black’s Law Dictionary 1101 (10th ed. 2014) (defining “malicious” as

meaning “[w]ithout just cause or excuse”).

4. The Registration Status Of The Everlasting Life Trademark Is Presently Uncertain

There is no dispute that Prince Immanuel (and, by license, Yah Kai) was the

rightful holder of the registered “Everlasting Life” trademark at the time that Napper

evicted Plaintiffs and took over the Complex. See Yah Kai I, 195 F. Supp. 3d at 319.

However, with the passage of time, the registration status of that trademark has become

uncertain. The testimony at the damages trial indicated that Prince Immanuel may have

allowed the Everlasting Life trademark’s registration to lapse when it was up for

renewal in 2016. (See Damages Trial Tr. at 29:17–30:15.) And additional evidence

suggested that Napper spied an opportunity, and took steps to register the Everlasting

Life trademark for himself. (See 3d Dam. FOF Tbl at 8 (B) (acknowledging that

Napper had attempted to trademark the Everlasting Life mark with the United States

Patent and Trademark Office (USPTO) in June or July 2016); Damages Trial Tr. at

11:20–12:16 (taking judicial notice that this application was still pending as of

November 15, 2016).)

23 To date, neither of the parties has provided the Court with any notice or other

definitive evidence regarding the current status of the registered tra demark, and

therefore, this Court is not in a position to know whether Prince Immanuel continues to

hold the trademark registration, or whether Napper has successfully registered that

trademark with the USPTO. Given Napper’s mistaken beliefs about legal ownership, as

described above, the Court is not inclined to credit Napper’s bald statements of present

ownership, and without additional evidence, this Court cannot determine which party

the USPTO recognizes as holding the registered trademark—a non-finding that has

implications for the Court’s conclusions regarding injunctive relief. ( See Part IV.C,

infra.)

IV. CONCLUSIONS OF LAW REGARDING MONETARY DAMAGES AND OTHER REQUESTED REMEDIES

As explained fully below, this Court concludes that Plaintiffs have demonstrated

that they are entitled to certain monetary damages but not all of the relief that they have

requested in this case. Specifically, the evidence presented establishes that, as a

remedy for Napper’s willful trademark infringement and unfair competitio n, Prince

Immanuel and Yah Kai are entitled to recover: (1) the profits that Napper generated

(i.e., the Restaurant’s gross sales minus its expenses) in connection with his operation

of the Restaurant during the period of his infringing use of the “Everlasting Life”

trademark—which amounts to $1,856,144—(2) their actual damages for Napper’s

seizure of their business and operation of that entity under the trademarked name

“Everlasting Life,” which total $545,407; and (3) the yet-to-be-calculated attorney fees

and costs that have arisen from this litigation. In addition, Yah Kai has also

successfully claimed that it is entitled to compensation for Napper’s conversion of its

24 tangible and intangible property interests, in the amount of $142,864, along with

$54,434 in prejudgment interest. However, Plaintiffs have not demonstrated any right

to punitive damages or injunctive relief for their claims und er the Lanham Act or

Maryland common law.

Accordingly, this Court will award Plaintiffs $2,401,551 plus attorney fees and

costs with respect to Counts I, II, and III; and with respect to Count VI, Yah Kai is

awarded a total of $142,864 in compensatory damages and $54,434 in prejudgment

interest. Plaintiffs will have the opportunity to file a timely motion for attorney fees

and costs. No other damages or injunctive relief will be awarded.

A. As A Remedy For Napper’s Trademark Infringement And Unfair Competition, Plaintiffs Are Entitled To The Restaurant’s Profits From November 2011 To The Present, Their Actual Damages, And Also Attorney Fees And Costs

1. Overview Of The Statutory And Common Law Remedies For Trademark Infringement And Unfair Competition

The Lanham Act provides a number of remedies that a Court may award

plaintiffs in cases of trademark infringement or unfair competition. These remedies

include various types of monetary damages and the issu ance of a permanent injunction.

See 15 U.S.C. §§ 1116–17. With respect to damages, the Lanham Act provides that

[w]hen a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, a violation under section 1125(a) or (d) of this title, or a willful violation under section 1125(c) of this title, shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled . . . to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.

Id. § 1117(a). Thus, Congress has authorized the recovery of three different types of

monetary damages for the Lanham Act violations at issue here: Defendant’s profits,

Plaintiffs’ actual damages, and Plaintiffs’ costs of litigating the Lanham Act claim.

25 A nearly identical set of remedies exists for claims of unfair competition under

Maryland common law, see Md. Metals, Inc. v. Metzner, 382 A.2d 564, 573 (Md. 1978),

with the sole difference being that Maryland’s common law also authorizes punitive

damages, which are available when a plaintiff acts with actual malice, see GAI Audio of

N.Y., Inc. v. Columbia Broad. Sys., Inc., 340 A.2d 736, 750, 754 (Md. Ct. Spec. App.

1975). Because punitive damages can be awarded under common law, it is not

uncommon for plaintiffs to claim that the same trademark infringement activity violates

both the Lanham Act and state common law prohibitions against unfair competition.

See, e.g., Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1343 (11th Cir.

2012); ITC Ltd. v. Punchgini, Inc., 373 F. Supp. 2d 275, 278 (S.D.N.Y 2005). But this

overlap does not permit a plaintiff to “recover[] twice for the same injury.” Medina v.

District of Columbia, 643 F.3d 323, 328 (D.C. Cir. 2011). Indeed, “if a federal claim

and a state claim arise from the same operative facts, and seek identical relief, an award

of damages under both theories will constitute double recovery[,]” which is not

allowed. Id. (quotation omitted).

In addition to the forms of monetary relief mentioned above, t he Lanham Act

also authorizes district courts to

grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to prevent the violation of any right of the registrant of a mark registered in the Patent and Trademark Office or to prevent a violation under subsection (a), (c), or (d) of section 1125 of this title.

15 U.S.C. § 1116(a). Thus, the statute authorizes a district court to grant a permanent

injunction against defendants who engage in trademark infringement or who engage in

unfair competition. See id. However, the decision to issue such a permanent injunction

26 rests, as section 1116(a) acknowledges, on the principles of equity that underlie most

forms of injunctive relief: “(1) success on the merits, (2) whether the plaintiffs will

suffer irreparable injury absent an injunction, (3) whether, bala ncing the hardships,

there is harm to defendants or other interested parties, and (4) whether the public

interest favors granting the injunction.” Hanley-Wood LLC v. Hanley Wood LLC, 783

F. Supp. 2d 147, 151 (D.D.C. 2011) (quoting Am. Civil Liberties Union v. Mineta, 319

F. Supp. 2d 69, 87 (D.D.C. 2004)).

2. Plaintiffs Have Shown That They Are Entitled To Recover The Restaurant’s Profits From November 2011 Through The Present

It is well established that, when making an award of monetary damages under the

Lanham Act, a trial judge “should state whether the award is based on [the] defendant’s

profits, plaintiff’s actual damages or both, since each measure depends on different

factors.” Foxtrap, Inc., 671 F.2d at 641. The need for making this distinction arises

from the fact that, under the Lanham Act, “courts have generally required proof that

certain factors are present before approving a monetary award” and the se “factors vary

according to the measure of relief used.” Id.

For example, before a court may award a plaintiff the defendant’s profits, the

plaintiff must demonstrate that the defendant acted in “bad faith” or with “willful”

disregard of the plaintiff’s trademark rights. Id.; see also ALPO Petfoods, Inc. v.

Ralston Purina Co., 913 F.2d 958, 965 (D.C. Cir. 1990) (citing W.E. Bassett Co. v.

Revlon, Inc., 435 F.2d 656, 662 (2d Cir. 1970)). This standard is not eas y to satisfy, for

“courts have insisted on a relatively egregious display of bad faith,” Foxtrap, Inc., 671

F.2d at 641, or a showing that the infringement was done knowingly and callously, see

id. at 641–42 (citing Stuart v. Collins, 489 F. Supp. 827, 831 (S.D.N.Y.1980)). Indeed,

27 “[w]illfulness or bad faith requires some element of targeted wrongdoing and

intentionally deceptive conduct before the defendant’s profits are recoverable.” Riggs

Inv. Mgmt. Corp. v. Columbia Partners, LLC, 966 F. Supp. 1250, 1270 (D.D.C. 1997)

[hereinafter Riggs I] (internal quotation marks and citation omitted); see also ALPO

Petfoods, Inc., 913 F.2d at 966 (“[I]n the trademark infringement context, ‘willfulness’

and ‘bad faith’ require a connection between a defendant’s awareness of its competitors

and its actions at those competitors’ expense.”). 14

If a plaintiff establishes that the defendant acted willfully or in bad faith, the

court must assess the profits that the defendant earned through the unlawful use of his

mark. See Riggs Inv. Mgmt. Corp. v. Columbia Inv. Partners, LLC, 975 F. Supp. 14, 15

(D.D.C. 1997) [hereinafter Riggs II] (“[A] plaintiff is not entitled to profits

demonstrably not attributable to the unlawful use of his mark.”). To do so, the court

applies the burden-shifting framework that section 1117(a) establishes, which initially

14 Congress amended 15 U.S.C. § 1117(a) in 1999. See Trademark Amendments Act of 1999, Pub. L. No. 106–43, § 3(b), 113 Stat. 218, 219. Prior to that time, Congress provided no remedy for violations of 15 U.S.C. § 1125(c), and to correct that, Congress’s amendment to 15 U.S.C. § 1117(a) allowed for damages in the case of “a willful violation under section 1125(c)[.]” 15 U.S.C. § 1117(a) (emphasis added). Notably, however, none of the other Lanham Act violations for which section 1117(a) provides a remedy contains the word “willful.” See id. Thus, the courts of appeals are currently split regarding whether a showing of willfulness is truly necessary to recover a defendant’s profits for all Lanham Act violations. As of last year, the Federal and Ninth Circuits have stood fast by their interpretations mandating willfulness for the recovery of profits. See Stone Creek, Inc. v. Omnia Italian Design, Inc. , 875 F.3d 426, 441 (9th Cir. 2017), petition for cert. filed; Romag Fasteners, Inc. v. Fossil, Inc., 817 F.3d 782, 791 (Fed. Cir. 2016), cert. granted, judgment vacated, 137 S. Ct. 1373 (2017), opinion reinstated in relevant part per curiam, 668 F. App’x 889 (Fed. Cir. 2017). Meanwhile, the Fourth and Fifth Circuits have continued to insist that willfulness is only a factor—as opposed to a requirement— when a court decides whether a defendant must disgorge his profits. See Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 175 & n.13 (4th Cir. 2006); Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 347–49 (5th Cir. 2002). The Third Circuit switched sides in this long-standing debate subsequent to the adoption of the statutory amendment, and it now holds the view that the Fourth and Fifth Circuits espouse. See Banjo Buddies, Inc. v. Renosky, 399 F.3d 168, 173–75 (3d Cir. 2005). The D.C. Circuit has not weighed in on the willfulness requirement since its opinion in ALPO Petfoods, Inc. in 1990, and thus there is no post-amendment binding law in this Circuit on the subject . Nevertheless, because this Court finds that Napper did willfully infringe upon Prince Imma nuel’s trademark (see Part IV.A.2.a, infra), an award of profits is appropriate in this case under either of the approaches taken by the circuit courts.

28 requires the plaintiff “to prove defendant’s sales only[.]” 15 U.S.C. § 1117(a). The

burden of production then shifts to the defendant, who “must prove all elements of cost

or deduction claimed” from those gross sales, as needed for the court to reach the final

figure representing the defendant’s profits. Id. Should the defendant fail to prove these

costs and deductions, the defendant’s gross sales shall serve as the profits for purposes

of section 1117(a). See Riggs II, 975 F. Supp. at 15–16, 17. The court also retains the

discretion to alter the resulting sum if it concludes that “recovery based on profits is

either inadequate or excessive . . . according to the circumstances of the case.” 15

U.S.C. §1117(a).

In the instant case, Plaintiffs focus heavily on the Restaurant’s gross sales since

November of 2011, requesting that this Court award Plaintiffs the profits that Napper

secured as a result of his willful conduct in seizing the Restaurant from Plaintiffs and

reopening it under the same trademarked name. (See Pls.’ Damages Br. (Pls.’ Dam.

Br.), ECF No. 100, at 8–14.) This focused effort is warranted, because the record

clearly establishes Napper’s deliberate disregard for Prince Immanuel’s trademark

rights, and thus Plaintiffs are entitled to the Restaurant’s profits during the period of

infringement, which, after an equitable increase, amount to $1,856,144, as explained

below.

a. Napper Has Acted With Willful Disregard Of Prince Immanuel’s Rights As A Trademark Holder, And Continues To Do So At Present

First of all, as mentioned above, there is no question that Napper’s infringement

of the “Everlasting Life” mark was—and still is—knowing. Prince Immanuel notified

Napper in writing that Prince Immanuel held the federally registered “Everlasting Life”

trademark prior to Napper’s seizure of the facility and before Napper reopened the

29 Restaurant. (See 3d Liability FOF Tbl. at 132 (A, B); Trademark Infringement Notice

at 1.) And Napper has continued to operate the Restaurant under that moniker to date,

even after this Court concluded in its liability opinion that his continued use of the

mark constitutes trademark infringement. (See 3d Liability FOF Tbl. at 114 (A, B).)

Cf. ALPO Petfoods, 913 F.2d at 966 (explaining that a showing of willfulness usually

involves a “deliberate theft of a mark holder’s good will”).

It is also clear to this Court that Napper has engaged in infringing conduct with a

“smug willingness” to violate Prince Immanuel’s trademark rights, or at least a “callous

disregard” for those rights. Foxtrap, 671 F.2d at 641–42. Napper’s own testimony at

both phases of this trial clearly demonstrates that Napper’s actions are not those of an

infringer who is proceeding in good faith and with due respect for Plaintiffs’ ownership

rights, but instead appear to be the deliberate actions of a misguided individual intent

upon responding to perceived slights. (See, e.g., Damages Trial Tr. at 100:3–20

(Napper) (acknowledging that Napper considered changing the name of the restaurant,

but decided not to do so because “[Prince Immanuel] is an individual who has

demonstrated throughout the time that I was in that community that he didn’t look out

for my best interest”).) Indeed, this Court previously noted in its liability opinion that

Napper has chosen to exercise his own brand of “vigilante justice” in appropriating

Plaintiffs’ business and operating it in violation of Prince Immanuel’s trademark rights.

Yah Kai I, 195 F. Supp. 3d at 321–22. Thus, it can be said that Napper has acted in bad

faith by deliberately undertaking to seize Plaintiffs’ business and operate it as his own,

rather than seeking out other dispute-resolution options, see ALPO Petfoods, 913 F.2d

at 966, and at the very least, Napper has demonstrated a willful and callous disregard

30 for Prince Immanuel’s rights as the undisputed owner of the Everlastin g Life trademark,

such that an award of the profits from his infringing activities is appropriate, see, e.g.,

Greene v. Brown, 104 F. Supp. 3d 12, 18 (D.D.C. 2015) (awarding plaintiff the

defendant’s profits given defendant’s admission of willfulness); Riggs I, 966 F. Supp. at

1270 (holding that defendants acted “willfully and in bad faith” and plaintiffs were thus

“entitled to [defendant’s] equity profits”).

This conclusion leads the Court to an evaluation of the scope of Napper’s willful

infringement. The law provides that Napper is liable to Plaintiffs for the profits that the

Restaurant generated for the entire period of his infringement, see Riggs II, 975 F.

Supp. at 16, and this Court finds that the infringing period in the instant case runs from

the time that Napper knowingly undertook to infringe upon Prince Immanuel’s

trademark through the instant judgment, see Yah Kai I, 195 F. Supp. 3d at 307. Prince

Immanuel tendered notice of his registration of the “Everlasting Life” mark to Napper

in November of 2011, and in that same notice, he clearly revoked any license Napper

may have had to use the mark. (See Trademark Infringement Notice at 1.) Thus, when

Napper began running the Restaurant on November 16, 2011, Napper knowingly,

willfully, and immediately infringed upon Prince Immanuel’s trademark. Furthermore,

because Napper has not ceased using the “Everlasting Life” mark in connection with his

operation of the Restaurant to date, Napper’s infringing use of Prince Immanuel’s

trademark has continued to the present day.

Napper argues that his infringing conduct should not be construed to continue

through this present judgment, because Prince Immanuel’s trademark registration lapsed

in 2016 and was not renewed. (See Damages Trial Tr. at 153:24–154:5.) But that

31 argument misunderstands trademark rights, which are protected both by statute and by

common law. It is well established that the termination or cancellation of a federally

registered mark does not, in itself, represent the cessation of a prior ity user’s rights in

the mark at common law. See, e.g., McCarthy § 20:40 (noting that cancellation of a

registration does not “invalidate state or federal rights in the trademark which do not

flow from federal registration”); see also Two Pesos, Inc. v. Taco Cabana, Inc., 505

U.S. 763, 768 (1992) (“[I]t is common ground that § 43(a) protects qualifying

unregistered trademarks and that the general principles qualifying a mark for

registration under § 2 of the Lanham Act are for the most part applicable in d etermining

whether an unregistered mark is [also] entitled to protection under § 43(a).” (emphasis

added)). Thus, even if Prince Immanuel’s trademark registration lapsed in 2016, as

Napper asserts, Prince Immanuel may nevertheless claim an entitlement to enforcement

of his rights at common law, so long as the mark has not been abandoned. See, e.g.¸

Marcon, Ltd. v. Helena Rubenstein, Inc., 694 F.2d 953, 954–55 & n.1 (4th Cir. 1982)

(noting that plaintiff had brought state law claims based, in part, on trad emarks whose

registration had lapsed); see also Matal v. Tam, 137 S. Ct. 1744, 1753 (2017) (“[A]n

unregistered trademark can be enforced under state common law [.]”).

Here, Napper makes no credible contention that Prince Immanuel’s trademark

rights at common law should not be recognized because of a lapse in the formal federal

registration of the “Everlasting Life” trademark. See Yah Kai I, 195 F. Supp. 3d at

310–11 (acknowledging that “Plaintiffs hold superior rights at common law that

establish their exclusive ownership of the mark and entrust them with the legal power to

prevent junior users (such as Napper) from infringing upon said mark”). Nor can it be

32 said that Prince Immanuel has “abandoned” his trademark interests in any meaningful

sense. To be sure, the Community is no longer operating a food -service establishment

using that mark, see Grocery Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951 (9th Cir.

2007) (noting that one may abandon a trademark through nonuse), but that is simply and

solely because Napper effectively stole the Community’s real property and business

interests that were associated with that mark, and not because Prince Immanuel and Yah

Kai willingly relinquished their business, along with any right to use that trademark in

the future. In this Court’s view, it would pervert the law of trademark infringement and

unfair competition to equate Napper’s theft of the Complex, and Plaintiffs’ reasonable

reluctance to initiate a new restaurant business (see Damages Trial Tr. at 32:9–21

(Prince Immanuel) (explaining that the Community held off from starting up a new

restaurant under the same moniker because it first wanted to resolve this litigation),

with legal “abandonment,” see Grocery Outlet, 497 F.3d at 951 (“To show abandonment

by nonuse, the party claiming abandonment must prove both the trademark owner’s (1)

discontinuance of trademark use and (2) intent not to resume such use.” (internal

quotation marks omitted)).

In sum, Prince Immanuel not only notified Napper of his priority interest in use

of the mark before the November 2011 eviction, but he has also actively litigated the

trademark issue before this Court ever since. Thus, Napper can neither (1) reasonably

contend that he was unaware of Prince Immanuel’s trademark interests such that he

should not be liable for the profits generated from the time the infringement began, nor

(2) credibly maintain that Prince Immanuel has abandoned his trademark interests

33 because of his nonuse of the mark. Consequently, Plaintiffs are entitled to an award of

the Restaurant’s profits from November of 2011 through the present date.

b. Plaintiffs Have Established Estimated Gross Sales Of Nearly $3.6 Million Between November Of 2011 And The Present

This Court concludes that all of the profits that Napper has earned from running

the Restaurant are attributable to Napper’s infringing use of the Everlasting Life

trademark, because Napper took over Plaintiffs’ entire business. As this Court found in

Yah Kai I, Napper used a trade name that was “virtually identical to Yah Kai’s trade

name”; ran his business “in the same physical space as the former Complex”; and even

retained the Everlasting Life sign that Yah Kai had commissioned and installed outside

of the Capitol Heights building. 195 F. Supp. 3d at 317–18 (emphasis omitted). Thus,

it is a “near certainty that consumers will (mistakenly) think that Napper’s food -service

business is one of the enterprises that is owned and operated by the African Hebrew

Israelites.” Id. at 319. Put another way, Napper’s use of the Everlasting Life trademark

enabled him to appropriate all of the Community’s customers and its reputation (i.e., its

business good will), and also all of its profits. See id. at 318–19 (“[Napper’s] counsel

repeatedly emphasized that, rather than establishing a new, competing enterprise,

Napper is currently operating ‘the same business . . . [that has] been in the same place

using the same name that was being used prior to the trademark registration [.]’”

(quoting July 14, 2015 Trial Tr. at 39:17–22 (emphasis added))). And it is precisely

because Napper’s infringing use was so expansive that the remedy for his Lanham Act

violation and unfair competition should be similarly expansive, such that it

encompasses all of the profits Napper earned from the Restaurant that he unlawfully

commandeered. See Riggs II, 975 F. Supp. at 16 (awarding the plaintiff all of the

34 defendant’s equity profits for “the period of its bad faith conduct” because those profits

all resulted from the defendant’s infringing conduct).

To satisfy their obligation of demonstrating the Restaurant’s gross sales during

the relevant period, Prince Immanuel and Yah Kai have struggled to compile various

financial records (see Pls.’ Dam. COL at 13–14), and have proffered the following

analysis of how the Court should proceed to account for Napper’s infringing profits.

Plaintiffs say that, “[r]ather than . . . attempting to parse through an intenti onally

designed, convoluted, commingled puzzle of Fair and Balanced’s financial and tax

corporate finances, which funds are substantially derived from Everlasting Life,” the

Court should, instead, “simplify its task consistent with the letter of the law” by (1)

aggregating Fair and Balanced LLC’s gross sales from 2011 through 2015, which

Plaintiffs say is equal to approximately $4.04 million, and then (2) calculate 25% of

this gross sales figure ($1.01 million) as a “starting point” for the determination of

Plaintiffs’ damages, and then (3) “issue treble damages [by] multiply[ing] this amount

three [] times,” for a total award of $3.03 million. (Id. at 13–14.) This Court agrees

that Napper’s financial records are “convoluted” and that Plaintiffs’ approach is

certainly far simpler than undertaking to determine the actual profits that the pertinent

business interest generated during the relevant timeframe. (Id. at 13.) But, alas,

Plaintiffs’ requested methodology for determining the profits that resulted from

Napper’s infringing use of their mark is not at all consistent with the letter —or the

spirit—of the law.

To avoid being repetitive, the Court directs Plaintiffs’ attention to Part VI.A.1 of

this Memorandum Opinion, supra, which explains that section 1117 of Title 15 of the

35 U.S. Code specifies the forms of monetary damages that a court may award for Lanham

Act violations, as well as the adjustments that a court may make to those damages

amounts. Ga.-Pac. Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 717 (4th

Cir. 2015) (“Monetary relief for trademark infringement is provided for in 15 U.S.C.

§ 1117, and each type of monetary award is categorized with particularity and

separately addressed.”). Arbitrarily awarding a percentage of an umbrella company’s

aggregated gross revenue is not one of those remedies. See 15 U.S.C. § 1117(a).

Instead, Congress has directed the Court to evaluate the “profits” that the defendants

derived from the infringing use, id., which requires at least some effort to determine the

actual gross sales pertaining to the infringing activity and to subtract the costs that

defendant incurred with respect to those sales.

Luckily, the record here contains a document that purports to evidence the

Restaurant’s gross sales between November of 2011 and December of 2015. (See

Appendix B at B1.) This document, which Napper’s accountant testified that he

compiled from his contemporaneous QuickBooks account, shows that the Restaurant

generated “[o]rdinary [i]ncome” of $3,555,428 between November 2011 and December

2015—a figure that breaks down to $136,475 for the last two months of 201 1

(November and December); $1,019,788 in 2012; $1,084,287 in 2013; $771,341 in 2014;

and $543,537 in 2015. In the absence of any other reliable evidence regarding the

Restaurant’s sales during this period, or any reason to doubt the reliability of these

numbers in particular, this Court will rely upon these figures and consider them to

represent the Restaurant’s gross sales from November of 2011 through December of

2015.

36 Plaintiffs have also suggested that the applicable gross sales figure for the

purpose of determining the Restaurant’s profits should include the Restaurant’s sales in

2016 (see Pls.’ Dam. Br. at 14; Pls.’ Dam. COL at 13–14)—and presumably their

request would now extend to gross sales for the year 2017 and sales-to-date for 2018,

because Napper’s infringement is still ongoing. But as explained in Part III.B, supra,

this Court has no evidence regarding the sales figures for those years because Napper

has not yet produced those records. And given the apparent and significant downward

trajectory in the Restaurant’s gross sales in the years since Napper has managed the

facility (see Appendix B at B1), any estimate of the sales for 2016, 2017, or 2018 that

is derived from calculating the average of the gross sales from previous years w ould

likely overestimate the Restaurant’s recent sales volume. Thus, this Court is reluctant

to reach any conclusion about the Restaurant’s gross sales in fiscal years 2016, 2017,

and early 2018, and will instead account for this time period by adjusting the overall

award of profits as the Lanham Act allows. (See Part IV.A.2.d, infra.)

Consequently, at this point in the analysis, the final gross sales figure

encompasses only the documented revenue of the Restaurant between November 2011

and December 2015, and that amount totals $3,555,428.

c. Napper’s Costs For Operating The Complex Between November 2011 and December 2015 Were Approximately $2 Million

In order to determine Napper’s profits, the expenses that Napper incurred with

respect to the Restaurant’s operations must be subtracted from the gross sales figure.

See 15 U.S.C. § 1117(a). Significantly for present purposes, the Lanham Act expressly

places the burden of proving the costs attributable to production of the infringing goods

on the defendant, and it is clear that if such costs are not established, the defendant can

37 be held liable to the plaintiffs for the full value of the infringing sales. See id.; Riggs I,

966 F. Supp. at 1271; see also Hamilton-Brown Shoe Co., 240 U.S. at 262 (noting the

difficulty in requiring plaintiff to attribute profits specifically to infringing conduct,

and accepting that “[i]f one wrongfully mixes his own goods with those of another . . .

he shall lose the whole, for the reason that the fault is his” (quoting Graham v. Plate,

40 Cal. 593, 598 (1871))). To prove these deductible costs, a defendant must do more

than merely maintain that a list of expenses or costs are attributable to the production of

infringing goods, especially where, as here, the proffered list include categories of

expenses that may well be unrelated to the infringing activity. See Maltina Corp. v.

Cawy Bottling Co., Inc., 613 F.2d 582, 586 (5th Cir. 1980); see also Kamar Int’l, Inc. v.

Russ Berrie & Co., Inc., 752 F.2d 1326, 1331–33 (9th Cir. 1984) (examining the

varying methods courts use to allocate deductions for overhead expenses before

concluding that defendant must prove that each category of overhead actually

contributed to “the production, distribution[,] or sales of the infringing goods”).

Unfortunately for Napper, this Court has concluded that some of the records he

has provided to demonstrate costs are either unreliable, or contain assertions that the

listed expenses are not clearly related to Napper’s infringing activities. ( See Part III.B

& n.13, supra (explaining why not all of the costs listed in the documents contained

within Appendix A and Appendix C are trustworthy).) With respect to the Itemized

Expenses document in particular, the Court expressed its concerns about the

commingling of business expenses during the damages trial, and both Napper’s

accountant and his defense counsel specifically acknowledged those deficiencies , and

vowed to address them. (See, e.g., Damages Trial Tr. at 140:14–141:1 (Edwards)

38 (agreeing it was not possible to identify which expenses were attributable to the

Restaurant merely by reviewing the Itemized Expenses document); see also id. at

168:9–15 (Def.’s Counsel) (recognizing the need to “ferret[] out [those expenses] that

aren’t Everlasting Life’s expenses” after trial)). But no subsequent effort was ever

undertaken to provide the Court with more reliable figures, much less any theory or

formula for calculating the costs of Napper’s production of the infringing goods and

services. (See e.g., Damages Trial Tr. at 157:1–158:8 (Def.’s Counsel) (lacking such a

theory); Amended Joint Pretrial Statement, ECF No. 99, at 4 (asserting only that

“Defendant’s profits were d[e] minimis”)). And without any statement regarding which

of the listed expenses are actually attributable to the operation of the former Complex

business (as opposed to Napper’s other business concerns), this Court cannot conclude

as a matter of law that the cost listings that Napper has provided prove all of the

operating costs he now claims.

But this is not the end of the matter as far as Napper’s costs are concerned.

Where a defendant in a trademark infringement case has failed to clearly demonstrate

the costs attributable to their production of infringing goods, courts in this Circuit have

nevertheless routinely considered other available evidence pertaining to a defendant’s

readily-attributable expenses. See, e.g., Breaking the Chain Found., Inc. v. Capitol

Educ. Support, Inc., 625 F. Supp. 2d 1, 3 (D.D.C. 2013) (using information provided by

the plaintiff to help the court determine defendant’s costs). Here, an exhibit that has

been offered to establish the Restaurant’s gross sales also includes evidence of the

“[c]osts of [g]oods [s]old” (i.e., the raw materials) between November 2011 and 2015.

(See Appendix B at B1.) According to this document, the Restaurant had a total Cost

39 of Goods Sold of $1,232,518 in the period from November of 2011 through 2015, which

consists of costs of $51,030 in the pertinent part of 2011, $482,464 in 2012, $449,206

in 2013, $197,617 in 2014, and $52,201 in 2015. (See id.)

The accuracy of this document’s representation of costs has not been disputed;

therefore, this cost figure will be included in the deductions that must be made from the

gross sales amounts calculated above in order to determine Napper’s profits.

Additionally, because the record reflects rent payments that Napper made to Kingdom

Management from November 2011 through December 2015 totali ng $379,234 (see Part

III.C.2., supra; Appendix A at A6–A7, A10–A11), the Court finds that these payments

are directly attributable to his infringing use of the mark and should also be subtracted

from the Restaurant’s gross sales. Finally, as noted in Part III.C.2, supra, the Court has

found that two of the documents Defendant submitted provide credible eviden ce of

additional expenses relating to the operation of the Restaurant in the last two years of

the infringing period (2014 and 2015)—specifically, $227,210 in 2014, and $223,434 in

2015. (See Part III.C.2. & n.13, supra; see also Appendix C at C1–C3.) These costs

will be deducted as well. Thus, based on the record evidence, the proven expenses for

operation of the Everlasting Life Restaurant between November 2011 and December

2015 total $2,062,396. 15

The Court will use this cost figure to calculate the profits that the Restaurant

15 The Court acknowledges that this cost figure does not include Napper’s expenses for running the Restaurant from 2011 through 2013, other than the rental payments that were made and the costs of the goods sold during those years. As this Court has previously n oted, the defendant has not provided the Court with a trustworthy accounting of all of the Restaurant’s expenses during this two -year period. (See Part III.B, supra.) Under the Lanham Act’s burden-shifting framework, Napper bears the responsibility to prove any costs that he seeks to have deducted from the gross sales figures that Plaintiffs have provided, see 15 U.S.C. § 1117(a), and because he has not done so, this Court has no choice but to calculate the damages award without further deductions for uns pecified or unproven operating costs.

40 earned during this timeframe in accordance with the Lanham Act’s requirements . See

15 U.S.C. § 1117(a). And after subtracting the established expenses attributable to the

production of infringing goods from the total gross sales of the Restaurant for 2011

through 2015, the Court holds that Napper’s profits from his infringing use of the mark

from November 2011 until December 2015 total $1,493,032.

d. In This Court’s Discretion, The Award Of Profits Will Be Increased From $1,493,032 To $1,856,144, To Account For Profits Between 2016 and The Present

The Lanham Act specifically authorizes the modification of an award of profits

calculated pursuant to the Act, if the court believes the “amount of the recovery based

on profits is inadequate or excessive[,]” 15 U.S.C. § 1117(a), and, here, an award of

profits in the amount of $1,493,032 is, in fact, inadequate. As previously mentioned, an

award in that amount does not include any of the profits that the Restaurant has earned

since January 2016, because the record contains no evidence regarding the Restaurant’s

gross sales or costs in 2016, 2017, or thus far in 2018. (See Part IV.A.2.c, supra.)

Moreover, the record lacks this evidence because Napper has failed to produce it (and

not because the Restaurant ceased to operate and thus stopped infringing upon Prince

Immanuel and Yah Kai’s trademark rights). Therefore, the “amount of . . . recovery

based on profits” that consists only of the Restaurant’s profits from November of 2011

until December 2015 is manifestly “inadequate[,]” 15 U.S.C. § 1117(a), and as a result,

the Court will adjust its award of profits upward.

The Court is mindful that any such adjustment should be “careful[ly] tailor[ed,]”

Foxtrap, 671 F.2d at 642, and as a result, the Court will use the following approach.

First, the Court will (generously) assume that the Restaurant’s gross revenue and

expenses in 2016, 2017, and the early part of 2018 (on a pro-rated basis of course) were

41 the same as those figures were in the year 2015—which is the last year for which this

Court has such information. Defendant’s gross revenue and proven costs for 2015 were,

respectively, $543,537 and $373,837 (consisting of rent payments, the cost of goods

sold, and the expenses the Court found were necessarily for the production of the

infringing good and services in Part III.C.2, supra), and thus Defendant’s proven profits

for 2015 were $169,700.

Next, the Court will attribute that amount of profits to the years 2016, 2017, and

(on a pro-rated basis) 2018, because the Court has no better measure of Defendant’s

profits for those years, yet the profit generated in those years must be accounted for in

the monetary damages award that the Court imposes. When this profit figure , $363,112,

is added to the previously calculated profit from 2011 through 2015, the new total

award is $1,856,144.

Notably, in making this award of profits for the period from November 2011 to

present, this Court rejects Plaintiffs’ request for damages in the form of treble profits,

which the Lanham Act allows in certain circumstances. (See Pls.’ Dam. COL at 3–4, 9–

10, 14.) Under the statute, a plaintiff can claim entitlement to an award of treble profits

in cases that involve “use of a counterfeit mark[.]” See 15 U.S.C. § 1117(b). 16 But “to

16 Section 1117(b) provides that:

In assessing damages under subsection [1117(a)] for any violation of section 1114(1)(a) of this title . . . in a case involving use of a counterfeit mark or designation (as defined in section 1116(d) of this title), the court shall, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever amount is greater, together with a reasonable attorney’s fee, if the violation consists of (1) intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark (as defined in section 1116(d) of this title), in connection with the sale, offering for sale, or distribution of goods or services . . . .

15 U.S.C. § 1117(b).

42 establish trademark counterfeiting, Plaintiff must show that Defendant infringed a

registered trademark in violation of 15 U.S.C. § 1114(1)(a) and that defendant

‘intentionally used a mark, knowing such mark is a counterfeit mark.’” Lifted Research

Grp., Inc. v. Behdad, Inc., 591 F. Supp. 2d 3, 7 (D.D.C. 2008) (quoting 15 U.S.C.

§ 1117(b) (emphasis added)); see also Ga.-Pac. Consumer Prods. LP, 781 F.3d at 718.

The Lanham Act also makes clear that a “counterfeit” mark is “a spurious mark which

is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C.

§ 1127.

No such allegation or evidence has been presented in the instant case. Indeed,

although the Court previously concluded that Napper’s use of the Everlasting Life

moniker was likely to lead confusion on the behalf of the average customer, see Yah

Kai I, 195 F. Supp. 3d at 319, this Court has never found that Napper’s mark is a

counterfeit copy of Prince Immanuel’s trademark, or is otherwise indistinguishable

from that mark. And a side-by-side comparison of the two marks—Prince Immanuel’s

and Napper’s—is sufficient to prove this point:

(USPTO Service Mark Registration, Pls.’ Liability Trial Ex. 1, ECF No. 29-1, at 2;

Promotional Events by Fair and Balanced for Everlasting Life, Pls.’ Liability Trial Ex.

22, ECF No. 29-1, at 87.)

43 These images do not come close to meeting the “identical” or “substantially

indistinguishable” standard that characterizes a counterfeit mark. 15 U.S.C. § 1127; see

Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 721 (9th Cir.

2005) (explaining that, to engage in trademark counterfeiting, the defendant must use “a

non-genuine mark identical to [the registered mark]”). Therefore, this Court does not

have the authority to award treble damages for profits under the Lanham Act. See Ga.-

Pac. Consumer Prods. LP, 781 F.3d at 718.

This Court also rejects Plaintiffs’ call for it to exercise its discretion under 15

U.S.C. § 1117(a) to modify the award of profits further, so as to issue an award that

effectively trebles the proven profits. (See Pls.’ Dam. COL at 3–4, 9–10, 14.) Such an

award would come perilously close to constituting a punishment for Napper’s

infringement, which the Lanham Act forbids. See 15 U.S.C. § 1117(a) (stating that the

awarded sum “shall constitute compensation and not a penalty”); see also Foxtrap, 671

F.2d at 642 n.11 (“[T]he [district] court should strive to assure that the award it orders

will deter the defendant, yet not be a windfall to plaintiff nor amount to punitive

damages.”).

3. Plaintiffs Are Also Entitled To Attorney Fees And Costs

The Lanham Act authorizes successful plaintiffs to recover their litigation costs

in the form of monetary damages, and also, “in exceptional cases[,]” plaintiffs can

recover “reasonable attorney fees.” 15 U.S.C. § 1117(a) (emphasis added). The D.C.

Circuit has long interpreted the “exceptional cases” standard to permit a court to award

a plaintiff attorney fees under the Lanham Act only if the plaintiff has demonstrated

that the defendant engaged in “willful or bad faith infringement.” Reader’s Digest

Ass’n, Inc. v. Conservative Digest, Inc., 821 F.2d 800, 808 (D.C. Cir. 1987), overruled

44 on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994); see also ALPO

Petfoods, 913 F.2d at 965–66 (applying the same standard). However, the Supreme

Court’s recent decision in Octane Fitness, LLC v. ICON Health and Fitness, Inc., 134

S.Ct. 1749 (2014), has called this interpretation of the “exceptional cases” standard into

question.

In that case, the Supreme Court interpreted the attorney fees provision of the

Patent Act—which has exactly the same language as the attorney fees p rovision in 15

U.S.C. § 1117(a) 17—and focusing on the phrase ‘exceptional cases,’ the Supreme Court

concluded that “an ‘exceptional’ case . . . is simply one that stands out from others with

respect to the substantive strength of a party’s litigating position (considering both the

governing law and the facts of the case) or the unreasonable manner in which the case

was litigated[,]” Octane Fitness, LLC, 134 S.Ct. at 1756. Notably, the Supreme Court

did not insist on any finding of willfulness or bad faith, and ultimately though t it best

that “[d]istrict courts [] determine whether a case is ‘exceptional’ in the case -by-case

exercise of their discretion, considering the totality of the circumstances.” Id.

Because the language in section 1117(a) is identical to the language tha t the

Supreme Court interpreted in Octane Fitness, the Octane Fitness standard seemingly

also applies to requests for attorney fees under the Lanham Act. Indeed, every court of

appeals to have considered the relevance of Octane Fitness has concluded that its

definition of an “exceptional case” ought to govern the Lanham Act’s attorney fees

provision. See, e.g., Romag Fasteners, Inc. v. Fossil, Inc., 866 F.3d 1330, 1334–35

17 Compare 35 U.S.C. § 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party.”) with 15 U.S.C. § 1117(a) (“The court in exceptional cases may award reasonable attorney fees to the prevailing party.”).

45 (Fed. Cir. 2017); SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179, 1180–81

(9th Cir. 2016); Baker v. DeShong, 821 F.3d 620, 622–64 (5th Cir. 2016); Slep-Tone

Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317–18 (6th Cir. 2015); Ga.-

Pac. Consumer Prods. LP, 781 F.3d at 721; Fair Wind Sailing, Inc. v. Dempster, 764

F.3d 303, 314–15 (3d Cir. 2014). Further strengthening this conclusion is the fact that

the Supreme Court’s opinion in Octane Fitness specifically approved of the D.C.

Circuit’s decision in Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 771 F.2d

521 (D.C. Cir. 1985), wherein the D.C. Circuit concluded that a defendant seeking fees

under the Lanham Act’s ‘exceptional case’ standard need only show that the case was

“uncommon” or “not run-of-the mill.” Id. at 526. Thus, it appears that the D.C.

Circuit’s ‘willful’ or ‘bad faith’ standard for determining whether a case is

‘exceptional’ for the purpose of awarding a plaintiff attorney fees under the Lanham

Act may not have survived Octane Fitness.

Plaintiffs here are entitled to attorney fees in any event, regardless of Octane

Fitness’s effect on the D.C. Circuit’s willfulness standard, because Napper’s infringing

conduct was willful, as explained above, and this case is also undoubtedly

extraordinary. To recap briefly, a finding of ‘willfulness’ or ‘bad faith’ in the

trademark infringement context “require[s] a connection between a defendant’s

awareness of its competitors and its actions at those competitors’ expense” —i.e., it

demands that the defendant engaged in “conduct aimed at a victim targeted by t he

defendant.” ALPO Petfoods, 913 F.2d at 966. In this regard, Napper’s willfulness in

infringing upon Prince Immanuel’s trademark is plainly manifest. See Yah Kai I, 195 F.

Supp. 3d at 316–18; (Part IV.A.2.a, supra.) In addition, this Court easily finds that

46 Napper’s deliberate heist—and the accompanying intentional freeriding on the goodwill

that Yah Kai had established with customers of the Everlasting Life Complex —is

exceedingly unusual, and therefore, this case is far from run-of-the-mill. See Octane

Fitness, 134 S.Ct. at 1756. Consequently, regardless of whether or not Octane Fitness

now establishes the correct legal standard for an award of attorney fees under the

Lanham Act, it is clear that an award of attorney fees is appropriate here.

As is often the case, the final amount of the attorney fees award has not yet been

determined, and a motion and further briefing will be necessary to establish the proper

scope of the attorney fees award. See AARP v. Sycle, 991 F. Supp. 2d 224, 234 (D.D.C.

2013); see also Fed. R. Civ. P. 54(d)(2)(B) (laying out the procedures for motions for

attorney fees); LCvR 54.2. This Court will also award the Plaintiffs’ their costs in

litigating this trademark infringement matter, see 15 U.S.C. § 1117(a), and this figure,

too, will have to await a bill of costs, as initiated by Plaintiffs. See Fed. R. Civ. P.

54(d)(1) (laying out the procedures for obtaining costs); LCvR 54.1.

B. Plaintiffs Have Demonstrated That They Have Actual Damages, And This Court Will Award $545,407 For Such Damages

Congress has authorized a Lanham Act plaintiff to recover any “actual losses,”

Foxtrap, 671 F.2d at 642, that “flow directly from the infringement,” Koelemay,

Monetary Relief for Trademark Infringement Under the Lanham Act , 72 Trademark

Rep. 458, 505 (1982). In contrast to the equitable disgourgement of any profits that the

infringer earned from his infringing conduct, an award of actual damages accounts for

the particular harm that the plaintiff has suffered from not receiving what it otherwise

would have earned absent the infringement. Therefore, traditionally, a plaintiff’s actual

damages include “(1) profits lost on trade diverted to the infringer; (2) profits lost on

47 sales made at reduced prices in response to competition by the infringer; (3) harm to the

plaintiff’s reputation and good will; and (4) the cost of advertising needed to prevent or

dispel customer confusion.” Id.; see also ALPO Petfoods, 913 F.2d at 969 (approving

of Koelemay’s treatise and endorsing that document’s measure of actual damages under

the Lanham Act).

To recover these actual damages, the plaintiff must provide evidence that

“adequately supports all items of damages claimed and establishes a causal link

between the damages and the defendant’s conduct[.]” ALPO Petfoods, 913 F.2d at 969.

In other words, the plaintiff must prove “both causation and amount” to recover actual

damages. J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition

§ 30:72 (5th Ed. 2017) (2017 Update) (“McCarthy”). And if the plaintiff successfully

proves that it has actual damages, the Lanham Act provides the factfinder with the

discretion to award up to three times the amount found if the circumstances of the case

so demand. See 15 U.S.C. § 1117(a).

In the instant case, Prince Immanuel and Yah Kai have indisputably satisfied the

causation aspect of this actual damages analysis. As explained in Yah Kai I, Plaintiffs

have proven that Napper engaged in activity that infringed their trademark rights, and

Napper is thus liable for any losses that the Plaintiffs sustained as a direct result of

these actions. See Yah Kai I, 195 F. Supp. 3d at 318 (finding that “all but the most

discerning consumer would easily mistake Napper’s mark and restaurant” for that of

Plaintiffs’ trademarked establishment). To be specific, it is clear beyond cavil that

Napper caused the Community (Yah Kai) to lose profits that were diverted to Napper

48 when he evicted Prince Immanuel and Yah Kai and stole the Community’s food -service

establishment business.

The question then becomes whether the instant record establishes the extent of

the actual harm to Yah Kai and Prince Immanuel. This need not be established to a

near certainty, because the D.C. Circuit and other courts have routinely required less

rigor when it comes to demonstrating the amount of actual damages the defendant’s

actions have caused. See ALPO Petfoods, 913 F.2d at 969 (“[T]he district court may

take into account the difficulty of proving an exact amount of damages.”); Otis Clapp &

Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738, 745 (7th Cir. 1985) (“The plaintiff is

held to a lower burden of proof in ascertaining the exact amount of damages because

the most elementary conceptions of justice and public policy require that the wron gdoer

shall bear the risk of the uncertainty which his own wrong has created.” (internal

quotation marks and citation omitted)). Nevertheless, the plaintiff must still provide

“adequate evidentiary support” for the claimed harms that allegedly resulted fr om the

defendant’s infringing conduct, Foxtrap, 671 F.2d at 642, although the “nature of the

proof required to support a [factfinder’s] award depends on the circumstances of the

case and is subject to the principles of equity,” Skydive Ariz., 673 F.3d at 1112 (internal

quotation marks and citation omitted). As a general rule, a trademark -infringement

plaintiff need only provide “substantial evidence to permit the [factfinder] to draw

reasonable inferences and make a fair and reasonable assessment” of the a ctual

damages. Id. (emphasis omitted) (citing La Quinta Corp. v. Heartland Props. LLC, 603

F.3d 327, 342 (6th Cir. 2010)).

49 The aforementioned holes in the evidentiary record in this case necessitate a

“crude measure[] of [actual] damages.” Id. There is nothing in the record that

establishes what the Complex’s profits were in the years immediately preceding the

takeover (i.e., when Yah Kai was managing it); therefore, Yai Kai’s losses as a result of

Napper’s infringement are not immediately apparent. Nor can the Court credibly

evaluate the loss to Yah Kai of having its business stolen based on the profits that the

Restaurant generated when Napper reopened it. (See Part IV.C.2 & n.13, supra

(explaining that the Court has been able to determine Napper’s actual profits only for

2014 and 2015).) It is clear from the record in this case that the Restaurant experienced

a steady decrease in gross sales under Napper’s management—which is entirely

consistent with the Community’s past experience with Napper’s managemen t of the

Complex (see, e.g., July 15, 2015 Trial Tr. at 78:5–79:20)—and thus it cannot be said

that the profits Napper earned after the takeover are necessarily representative of the

full profits that Yah Kai would have generated if it had continued to run the Complex

since 2011.

Recognizing that the Court must do its best to evaluate actual damages

regardless, this Court has scoured the record for credible evidence pertaining to Yah

Kai’s actual losses. During the liability trial, the parties stipulated to the admission of

Yah Kai’s corporate income tax returns for the Complex for 2009 and 2010. ( See July

14, 2015 Trial Tr. at 9:16–19.) Of the instant trove of financial records, the Complex’s

tax return for 2010 provides the best indication of the Complex’s true profits prior to

Napper’s takeover, and this document indicates that the Complex had profits totaling

$161,602 for the year 2010. (See Everlasting Life Health Complex 2010 Tax Return,

50 Pls.’ Liability Trial Ex. 9, ECF 114-6, at 1.) 18 Given that figure—which represents 12

months of lost profits—the Court believes that it can confidently award Yah Kai actual

damages in the amount of $181,802, as compensation for the 14 -month period from

November of 2011 through the end of 2012 (the first year of Nap per’s takeover). But

the Court will stop there, and will not proceed further with the actual damages

projections, due to its uncertainty regarding how the Complex actually would have

fared under Yah Kai’s management many years into the future.

In fact, it is at this point in the actual damages analysis that the Court will pivot

away from attempted precision and exercise the discretion that is afforded to the Court

under the Lanham Act when the actual harm to a plaintiff is evaluated. See 15 U.S.C.

§ 1117(a) (authorizing a court to treble the award of actual damages). The Court finds

that an equitable increase in the aforementioned actual damages amount is entirely

justified given the facts presented in this case, for as hazy as the actual magnitude of

the harm to Yah Kai in the seven years following the takeover might be, one thing is

crystal clear: as a result of Napper’s actions in November of 2011, Prince Immanuel,

Yah Kai, and the Community went from being profitable Maryland business owners to

having no business to speak of—literally overnight. There is no question that Plaintiffs

have suffered a significant harm and that Napper’s self-help strategy had long-lasting

18 The Complex’s IRS Form 1120 itemizes the total income and various tax -deductible expenses. The Court’s profit figure makes certain adjustments that reasonably account for the Complex’s actual profit during the relevant period. The Court arrives at the profit amount of $161,602 by taking the Complex’s gross income and deducting the costs related to salaries and wages, repairs and maintenance, rents, taxes and licenses, depreciation, and advertising. The Court has also subtracted the value listed for “other deductions,” because it is uncertain as to what expenses those deductions actually covered, and they could well have been related to expenses that were necessary to run the business. However, because the line-item pertaining to “charitable contributio ns” is not even theoretically related to actual cost of operating the Complex, the $125,836 in charitable contributions that the Complex made in 2012 has not been counted as a cost for the purpose of the Court’s projections regarding the profit that Yah Kai would have generated if Napper had not evicted Plaintiffs.

51 ramifications; therefore, in this Court’s view, the actual damages figure must extend

beyond the mere ascertainable profits that Plaintiffs were forced to forgo in the one

year following their eviction. This Court concludes that trebling those dam ages, as the

Lanham Act permits, is the least that can be done to compensate Plaintiffs for their

substantial loss, and as a result, the total award of enhanced actual damages will be

$545,407. See 15 U.S.C. § 1117(a); Foxtrap, 671 F.2d at 641.

C. Plaintiffs Have Failed To Show That Punitive Damages Are Warranted, And The Court Will Not Award Injunctive Relief

Unlike Plaintiffs’ call for Napper’s profit and their actual damages, Plaintiffs’

request for punitive damages and injunctive relief cannot be sustained. It is well

established that “[p]unitive damages are reserved typically for punishing the mos t

heinous of intentional torts and tortfeasors[,]” see Beall v. Holloway-Johnson, 130 A.3d

406, 419 (Md. 2016), and that “to recover punitive damages in any tort action in the

State of Maryland, facts sufficient to show actual malice must be pleaded and proven

by clear and convincing evidence[,]” Scott v. Jenkins, 690 A.2d 1000, 1003–04 (Md.

1997) (emphasis original), superseded by statute on other grounds. Actual malice

exists when the defendant’s conduct is “characterized by evil motive, intent to injure , ill

will, or fraud.” Beall, 130 A.3d at 420; see also H & R Block, Inc. v. Testerman, 338

A.2d 46, 52 (Md. 1975) (defining actual malice as “the performance of an act without

legal justification or excuse, but with an evil or rancorous motive influenced by hate,

the purpose being to deliberately and willfully injure plaintiff”), abrogated on other

grounds by Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md. 1992). And in this

Court’s view, no such intent is evident on the facts presented here.

52 Far from displaying malice or evil intent, Napper is, was, and has always been

motivated by a sincere—albeit woefully mistaken—belief that he owns Everlasting

Life, and that he could therefore rightfully seize the business from Plaintiffs (who he

believes wrongfully ousted him) and manage it as his own. As previously stated, this

Court has no doubt that Napper’s conviction that he is the rightful owner of the

business due to his substantial in-kind contributions to the creation and management of

the Complex is earnest. See Yah Kai I, 195 F. Supp. 3d at 321–22. Napper reasserted

this belief fervently during both of the trials that this Court held in this matter. ( See

Damages Trial Tr. at 87:1–7 (Napper); July 14, 2015 Trial Tr. at 140:17–148:22.) And

even though Napper is entirely and utterly wrong about his ability to claim legal

ownership of the business, see Yah Kai I, 195 F. Supp. 3d at 321 (making clear that

“Napper’s vision of his rights and entitlements is inconsistent with the law and is not

supported by the facts that were established during the trial”), the Court concludes that

Napper’s actions were motivated by this mistaken belief—not by a malicious intent.

(See, e.g., Damages Trial Tr. at 99:14–17 (“Everlasting Life had been my business. I

established it, and I established it for the purposes that it serves now, and your decision

didn’t change my heart.”); 100:11–13 (“So I realized what was written on the paper, but

I knew what was right. And I knew that I was, I was the person who did all of this.” );

107:16–18 (“I said, Why would they do this to me? Why would you take this from me?

This is all I had, Your Honor.”).)

This means that even though Napper wrongfully and willfully infringed upon the

trademark and engaged in unfair business practices with respect to Prince Immanuel and

Yah Kai, punitive damages are not appropriate, because the evidence does not support a

53 finding of actual malice under Maryland law. See Food Fair Stores, Inc. v. Hevey, 338

A.2d 43, 47 (Md. 1975) (“It has long been recognized in Maryland that where an act,

though wrongful in itself, is committed in the honest assertion of a supposed right or in

the discharge of duty, . . . there is no ground on which punitive damages can be

awarded.”); see also Darcars Motors of Silver Spring, Inc. v. Borzym, 818 A.2d 1159,

1176 (Md. Ct. Spec. App. 2003) (same) (citation omitted). Therefore, Plaintiffs’

request for punitive damages must be denied.

Plaintiffs have also failed to establish that they are entitled to an award of

injunctive relief. Although the record does make clear that Napper has willfully

continued to use the Everlasting Life trademark, Plaintiffs’ request for injunctive relief

is too vague to be enforced. (See Pls.’ Dam. Br. at 6 (asking for “injunctive relief

including, but not limited to a ruling that invalidates Napper’s continued use of

Plaintiffs’ trade name”); Pls.’ Dam. COL at 3 (same).) One wonders whether, by

requesting “invalidation” of Napper’s use of the trade name, Plaintiffs are seeking an

injunction that requires Napper merely to change the name of his Restaurant , or are they

asking this Court to enjoin Napper’s continued operation of the business that is and has

always operated under that trade name? Plaintiffs have not provided clarification, such

as any proposed language for their requested injunction, and their lack of specificity

makes it difficult for the Court to evaluate the scope of the requested injunction, much

less order it.

Even more significant is the fact that Plaintiffs have not demonstrated the current

status of Prince Immanuel’s trademark registration or analyzed its impact on the

requested injunctive relief, if any. The record indicates that Prince Immanuel’s

54 trademark registration lapsed in 2016, and not only have Plaintiffs ceased to manage

any food-service establishment since the 2011 eviction, but Napper is also apparently in

the process of applying for registration of substantially the same mark before the

USPTO. (See Part III.C.4, supra.) Thus, the threat of future harm to Prince Immanuel

as the trademark owner—which is a requirement for injunctive relief under the Lanham

Act (see Part IV.A.1, supra)—is unclear at this time. See ALPO Petfoods, 913 F.2d at

966 (pointing out that the “propriety of a permanent injunction” depends in part on

“whether a defendant is likely to cause future harm”); Greene, 104 F. Supp. 3d at 21

(“Without a demonstration of a threat of ongoing harm, the Court cannot conclude that

Plaintiff will suffer any irreparable injury.”). Consequently, this Court cannot conclude

that injunctive relief is either appropriate or warranted.

D. Yah Kai Is Entitled To Compensatory Damages Plus Prejudgment Interest For Napper’s Conversion Of Yah Kai’s Tangible Assets And Intangible Rights

Yah Kai not only seeks the aforementioned damages and injunctive relief with

respect to Napper’s trademark violation and unfair competition, for it has also requested

“economic damages, compensatory and punitive damages” as compensation for

Napper’s conversion of Yah Kai’s tangible and intangible property interests when he

evicted Plaintiffs from the Complex. (Pls.’ Dam. Br. at 1.) 19 Specifically, Yah Kai

requests (1) “economic damages for tangible items” left behind in the Complex, (2) the

value of its intangible interest in the PEPCO utility rebate, and (3) unspecified

additional compensatory and punitive damages. (Id. at 16.) For the reasons explained

19 As the Court noted in its Findings of Fact and Conclusions of Law at the liability phase of this trial, only Yah Kai has sustained its burden of demonstrating ownership of the converted tangible and intangible assets, as is necessary for entitlement to damages for conversion. See Yah Kai I, 195 F. Supp. 3d at 322 n.16.

55 below, this Court concludes that Yah Kai has demonstrated its entitlement to $17,864 in

damages for its tangible equipment and goods, and that it is also entitled to recover

$125,000 for Napper’s conversion of its intangible interests, which represents the

established value of Yah Kai’s intangible interest in the PEPCO rebate. The Court will

also award Yah Kai prejudgment interest with respect to these amounts, as Maryland

law requires, but it will not award punitive damages for the reasons previously

explained.

4. Yah Kai Will Be Awarded A Total Of $142,864 As Compensatory Damages For Its Conversion Claim

“In [an] action for conversion, title to the chattel passes to [the defendant], so

that he is in effect required to buy it at a forced judicial sale.” Staub v. Staub, 376 A.2d

1129, 1132 (Md. 1977). Thus, the measure of damages owed to a plaintiff in an action

for conversion typically includes the fair market value of the property at the time of

conversion and any interest from the time of conversion through the date of judgment.

See Keys v. Chrysler Credit Corp., 494 A.2d 200, 209 (Md. 1985); Checkpoint Foreign

Car Serv., 242 A.2d at 149. Punitive damages are also technically available. See

Henderson v. Md. Nat’l Bank, 366 A.2d 1, 4 (Md. 1976). But just as with common law

claims of unfair competition, such damages are only available if the plaintiff

demonstrates that the defendant converted the plaintiff’s property with actual malice.

(See Part IV.A.1, supra.) See also Scott, 690 A.2d at 1003–04.

It is the plaintiff’s burden to provide the factfinder with a sufficient basis for

evaluating the amount of damages for common law conversion. See Owens-Corning v.

Walatka, 725 A.2d 579, 585 (Md. Ct. Spec. App. 1999). To recover damages for the

tangible items that Napper converted, Yah Kai must provide evidence of the market

56 value of its equipment, inventory, and other chattels with in the Capitol Heights

Everlasting Life facility, and although the existing record is sparse in this regard (see

Part III.B, supra), as explained above, this Court finds that Yah Kai has provided

evidence—in the form of William Young’s deposition testimony—to support the

conclusion that the tangible items converted included assets with a market value at the

time of at least $17,864 (see Part III.C.1, supra). Therefore, the Court will award Yah

Kai $17,864 to compensate it for Yah Kai’s converted tangible property. See

Checkpoint Foreign Car Serv., 242 A.2d at 149 (explaining that testimony by one who

is in a position to know the value of converted tangible objects may suffice to establish

the damages for that conversion).

Yah Kai also seeks recompense for Napper’s conversion of the utility invoices

that evidenced Yah Kai’s intangible right to a rebate for years of overpayments to

PEPCO. (See Pls.’ Dam. Br. at 16.) This Court will award that measure of damages as

well, because Maryland common law provides that conversion of a physical document

evidencing an intangible property right permits recovery of “the value of the right

evidenced or represented by the document.” Lawson v. Commonwealth Land Title Ins.

Co., 518 A.2d 174, 176 (Md. Ct. Spec. App. 1986); see also Allied Inv. Corp. v. Jasen,

731 A.2d 957, 965 (Md. 1999) (requiring a complaint for conversion of an intangible

interest to allege that “tangible documents evidenced [the rights,] and that the

documents were transferred improperly to respondent”); Medi-Cen Corp. of Md. v.

Birschbach, 720 A.2d 966, 972 (Md. 1988) (noting that accounts receivable records

“represented by hard copies or electronic data” likely sufficed to fulfill the tangible

documents requirement).

57 This Court has already found that Napper’s conversion of Yah Kai’s business

records and utility payment invoices made him liable for “the value of the right

evidenced” by those documents, Yah Kai I, 195 F. Supp. 3d at 323 (citing Lawson, 518

A.2d at 176), and that value is unquestionably $125,000 under the circumstances

presented in this case. (See Part III.C.1, supra (finding that the evidence presented

regarding Napper’s negotiations with the management company establishes that the

value of the rebate right was $125,000).) Moreover, there is no uncertainty regarding

the collectability of this debt—a factor that might otherwise bear on the valuation of

this intangible right, see Birschbach, 720 A.2d at 976—because Napper took it upon

himself to negotiate and actually collect upon this debt in the process of converting

Plaintiffs’ property. See Yah Kai I, 195 F. Supp. 3d at 304 n.11. Therefore, this Court

easily concludes that the value of the intangible right associated with Yah Kai’s

invoices is $125,000, as (ironically) determined by the defendant himself. 20

5. Napper Is Liable To Yah Kai For Prejudgment Interest

Given the conclusions above, the total known value of the tangible and

intangible goods that Napper converted was $142,864. However, notably, the value of

the converted goods themselves is not the entire amount that is available for recovery

under Maryland common law. Maryland law also authorizes plaintiffs to recover

20 Napper does not, and cannot, contest that he had access to the business records left in the Capitol Heights facility when Yah Kai was evicted from the premises, nor does he contest that had access to the facility prior to the eviction. Thus, Napper had possession of Yah Kai’s tax records, inventories, and the equipment itself, and therefore had the capacity to make a reasonable estimation of the value of the rebate at the time he converted those documents. Indeed, at the time of the lease and rebate negotiations, Napper himself was in a far better position than Yah Kai (and this Court) is now to estimate the value of the intangible rights that he converted. That is, as discussed previously, whatever the actual amount of the overpayment that was being reimbursed, Napper used the invoices for Yah Kai’s utilities payments as the basis of the settlement price he negotiated, so t his Court’s conclusion that Yah Kai’s intangible right to recover for this debt had a value of $125,000 was, in fact, estimated by Napper at the time of the conversion.

58 interest on the conversion damages, from the time of conversion through the date of

judgment. See Keys, 494 A.2d at 209; see also Staub, 376 A.2d at 1131 (establishing

that the time of conversion occurs at the time the claimant is deprived of “ownership or

dominion” over his property). Indeed, in cases where the value of the converted chattel

can reasonably be estimated at the time of conversion, prejudgment interest is “a matter

of right” to the plaintiff. Buxton v. Buxton, 770 A.2d 152, 165 (Md. 2001).

The fact that prejudgment interest is calculated from the date of conversion

under Maryland law means that this Court must determine the date that Napper

converted Yah Kai’s tangible and intangible property. This is easily done in regard to

Yah Kai’s tangible property interests, because Napper unquestionably took dominion

and control over all of the furniture and equipment that was inside the Complex on

November 15, 2011, when he evicted Plaintiffs from the premises. See Yah Kai I, 195

F. Supp. 3d at 323. The analysis pertaining to the timing of Napper’s conversion of

Yah Kai’s intangible interests in the PEPCO rebate is more complicated, and is as

follows.

The trial record suggests that Napper utilized the invoices that reflected Yah

Kai’s utility payments to PEPCO between 2009 and 2011 to negotiate a settlement with

Kingdom Management at some point between when he extended the existing lease with

Kingdom Management (in July of 2011) and when he finalized the settlement with

PEPCO (on October 7, 2011). See id. at 304 n.11. Thus, Napper was interfering with

Yah Kai’s control over its debt even prior to his execution of the physical seizure of the

Complex in November 2011. 21 This situation is analogous to the one that Maryland’s

21 To the extent that Napper maintains that the underlying overpayments that were the impetus for the rebate were made by him between 2004 through 2008—in his prior capacity as the Complex’s manager

59 Court of Special Appeals confronted in Staub, where that court had to determine the

point in time at which an ongoing interference with plaintiff’s property rights became

so substantial that it constituted conversion. See Staub, 376 A.2d at 1132–33. In Staub,

the Court of Special Appeals identified factors that differentiated “mere interference”

with plaintiff’s property, on the one hand, from the level of dominion properly held to

constitute conversion, on the other, and the court specifically noted that “a conversion

occurs at such time as a person is deprived of property to the possession of which he is

entitled.” Id. at 1131. The various factors that can be considered when determining the

point at which such a deprivation has occurred included, inter alia, “the actor’s intent

to assert a right in fact inconsistent with the other’s right of control,” “the actor’s good

faith,” and “the extent and duration of the resulting interference with the other’s right

of control.” Id. at 1132.

In Staub, the Court of Special Appeals upheld a trial court’s finding that a

defendant father had not converted bonds when he wrongfully added his name to them,

nor had he done so when he had the bonds reissued under both his son’s and his name.

Instead, the Court concluded that the conversion took place only once the father had

cashed the bonds and thus deprived his son of the opportunity to do so. See id. With

respect to the facts presented here, this Court similarly concludes that Napper’s

interference with Yah Kai’s use of its utility invoices reach ed the level of interference

necessary to constitute conversion when Napper utilized the invoices to finalize the

before Yah Kai was formed (see, e.g., Damages Trial Tr. at 167:3–7 (Def.’s Counsel))—this representation not only reflects Napper’s misunderstanding of legal ownership, it is also directly contrary to the testimony that the Kingdom Management representative provided at the liability trial. The witness specifically stated that the overpayment settlement amount was calculated using invoices for approximately “a three-year period . . . going into 2011 until we actually separated the meter” (July 15, 2015 Trial Tr. at 88:4–20 (Allen)). This means that Yah Kai was actually paying the utility bills during the relevant timeframe.

60 settlement agreement, and thereby exercised total dominion over Yah Kai’s right to the

PEPCO rebate by depriving Yah Kai of the property interest to which it was entitled.

Accordingly, this Court finds that Napper converted the utility in voices, and the

associated PEPCO rebate, on October 7, 2011, when he executed the settlement

agreement with Kingdom Management.

Prejudgment interest in Maryland is provided for in the Constitution of

Maryland, and is calculated at the legal rate of six percent per annum in simple interest.

Md. Const. Art. III, § 57; see also Sally J.T. Necheles, 13 Maryland Law Encyclopedia

Interest and Usury § 14 (Dec. 2017 Update) (noting that the charging of interest under

the Maryland Constitution is limited to simple interest). Because Maryland’s General

Assembly has not enacted an alternative rate, this rate controls. See Great Am. Ins. Co.

v. Nextday Network Hardware Corp., No. 14-1451, 2016 WL 828094, at *10 (D. Md.

Feb. 29, 2016); Hartford Cty. v. Saks Fifth Ave Distrib. Co., 923 A.2d 1, 15 (Md. 2007)

(noting there is no Maryland statute covering prejudgment interest rates).

Accordingly, this Court will award Yah Kai prejudgment interest on $125,000 of

its conversion damages at the rate of six percent per annum, beginning on October 7,

2011, and continuing through the date of this judgment. That prejudgment interest

amount is $47,815. Yah Kai is further awarded prejudgment interest related to

Napper’s conversion of Yah Kai’s tangible equipment and inventory at a rate of six

percent per annum from the November 15, 2011 conversion date. The prejudgment

interest on the tangible equipment damages amount of $17,864 is $6,619 .

61 6. This Court Will Not Grant Yah Kai Punitive Damages Because Yah Kai Has Not Demonstrated That Napper Acted With Actual Malice

Finally, as has been noted repeatedly above, Plaintiffs cannot obtain punitive

damages under Maryland’s common law unless they demonstrate that Napper acted with

actual malice. (See Part IV.A.1, supra) See also Scott, 690 A.2d at 1003–04. Although

this Court has found that Napper acted willfully in converting Yah Kai’s property, it

does not believe that he did so with an “evil motive, intent to injure, ill will, or fraud.”

Beall, 130 A.3d at 420 (citation omitted). Instead, Napper acted on a genuine and good

faith belief that he owned the Everlasting Life business and brand. See Yah Kai I, 195

F. Supp. 3d at 321–22.

To be sure, this Court’s conclusion that “Napper’s vision of his rights and

entitlements is inconsistent with the law and is not supported by the facts that were

established during the trial,” id. at 321, has never waned. But it is equally clear that

acting wrongfully based upon a mistaken belief is qualitatively different than acting

wrongfully based upon “an evil or rancorous motive influenced by hate, the purpose

being to deliberately and willfully injure the plaintiff.” Testerman, 338 A.2d at 52.

And this Court concludes that Napper had no such motive. (See Part IV.A.2.a, supra.)

In other words, Napper’s earnest belief in the righteousness of his wrongful conduct

renders punitive damages unwarranted. See Food Fair Stores, 338 A.2d at 46.

V. CONCLUSION

For the reasons explained above and in this Court’s July 2016 Findings of Fact

and Conclusions of Law, and based on evidence presented at both stages of th e

bifurcated bench trial that has taken place in regard to the instant dispute , this Court

concludes that Plaintiffs Prince Immanuel and Yah Kai World Wide Enterprises, Inc.

62 have adequately established their right to certain monetary damages for Defendant

Napper’s trademark infringement, unfair competition, and common law conversion.

Thus, as set forth in the accompanying order, JUDGMENT WILL BE ENTERED IN

PLAINTIFFS’ FAVOR as follows. With regard to the trademark infringement and

unfair competition claims, this Court finds Defendant liable to Plaintiffs in the amount

of $2,401,551 based on an accounting of Defendant’s profits from infringing goods and

Plaintiffs’ actual damages, and Plaintiffs are also entitled to attorney fees and

litigations costs. Defendant is also liable to Plaintiff Yah Kai for common law

conversion in the amount of $142,864, and for prejudgment interest totaling $54,434.

DATE: February 21, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

63 APPENDICES*

* The following appendices contain relevant excerpts of documents discussed in the memorandum opinion and are included to provide the reader with a sense of the financial information the Court had access to in making its determinations. APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Bill 01/06/2014 12/15-... 12/15-12/28/1... Contractor Accounts Paya... Bill 01/20/2014 12/29/... 12/29/13-01/1... Contractor Accounts Paya... Check 01/22/2014 missed pay 2.... Contractor Cash in Drawer Bill 02/03/2014 01/12-... 01/12-01/25/1... Contractor Accounts Paya... Bill 02/17/2014 01/26-... 01/26-02/08/1... Contractor Accounts Paya... Bill 03/03/2014 02/09-... 02/09-02/22/1... Contractor Accounts Paya... Bill 03/18/2014 02/23-... 02/23-03/08/1... Contractor Accounts Paya... Bill 03/31/2014 03/09-... 03/09-03/22/1... Contractor Accounts Paya... Bill 04/14/2014 03/23-... 03/23-04/05/1... Contractor Accounts Paya... Bill 04/28/2014 04/06-... 04/06-04/19/1... Contractor Accounts Paya... Bill 07/21/2014 06/29-... 06/29-07/12/1... Contractor Accounts Paya... Bill 10/27/2014 10/05-... 10/05-10/18/1... Contractor Accounts Paya... Bill 11/10/2014 10/19-... 10/19-11/01/1... Contractor Accounts Paya... Bill 11/28/2014 11/02-... 11/02-11/15/1... Contractor Accounts Paya... Bill 12/08/2014 11/16-... 11/16-11/29/1... Contractor Accounts Paya...

Total Donald Hendrix

Douglas Whitaker Bill 03/18/2014 02/23-... 02/23-03/08/1... Contractor Accounts Paya...

Total Douglas Whitaker

Dr.Baruch Deposit 11/14/2011 loan Loan Cash in Drawer Deposit 11/15/2011 loan Loan Cash in Drawer Deposit 11/15/2011 loan Loan Cash in Drawer Deposit 11/16/2011 loan Loan Cash in Drawer Deposit 11/16/2011 loan Loan Cash in Drawer Deposit 11/17/2011 loan Loan Cash in Drawer Deposit 11/19/2011 loan Loan Cash in Drawer Deposit 11/20/2011 loan Loan Cash in Drawer Deposit 11/20/2011 loan Loan Cash in Drawer Check 11/21/2011 credit card rei... Reimbursement Cash in Drawer Check 11/21/2011 reimburseme... Reimbursement Cash in Drawer Deposit 11/21/2011 loan Loan Cash in Drawer Deposit 11/21/2011 loan Loan Cash in Drawer Deposit 11/21/2011 loan for payroll Loan Cash in Drawer Deposit 11/22/2011 Deposit Loan Cash in Drawer Deposit 11/22/2011 loan Loan Cash in Drawer Deposit 11/23/2011 loan Loan Cash in Drawer Deposit 11/28/2011 loan for washi... Loan Cash in Drawer Deposit 11/28/2011 loan for verizon Loan Cash in Drawer Deposit 11/28/2011 loan for waste... Loan Cash in Drawer Deposit 11/29/2011 loan for busin... Loan Cash in Drawer Deposit 11/29/2011 loan for conve... Loan Cash in Drawer Deposit 11/30/2011 loan for poto... Loan Cash in Drawer Check 12/01/2011 loan for bever... Loan Cash in Drawer Deposit 12/01/2011 loan for U-Haul Loan Cash in Drawer Deposit 12/01/2011 loan for rest. ... Loan Cash in Drawer Deposit 12/01/2011 loan for checks Loan Cash in Drawer Deposit 12/02/2011 loan for Resta... Loan Cash in Drawer Deposit 12/02/2011 loan for rest. ... Loan Cash in Drawer Deposit 12/02/2011 loan for home... Loan Cash in Drawer Deposit 12/03/2011 loan for Home... Loan Cash in Drawer Deposit 12/03/2011 loan for Brunc... Loan Cash in Drawer Deposit 12/03/2011 loan for flyer Loan Cash in Drawer Deposit 12/05/2011 loan for judah Loan Cash in Drawer Deposit 12/05/2011 for index cards Loan Cash in Drawer Deposit 12/06/2011 loan for rest. ... Loan Cash in Drawer Deposit 12/06/2011 loan for Conv... Loan Cash in Drawer Deposit 12/06/2011 loan for Freezer Loan Cash in Drawer Deposit 12/08/2011 loan for poto... Loan Cash in Drawer Deposit 12/09/2011 loan for payroll Loan Cash in Drawer Check 12/12/2011 investment plan Consulting Services Cash in Drawer

Page 64 A1 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Check 03/29/2012 supplies Reimbursement Cash in Drawer Check 05/31/2014 Dr. Baruch Ca... Miscellaneous Expe... Cash in Drawer

Total Dr.Baruch

DRH Mechanical Check 08/09/2011 Cookie Oven ... Repairs and Mainten... Cash in Drawer Check 09/28/2011 looked at Con... Repairs and Mainten... Cash in Drawer Bill 12/06/2011 Service On C... Repairs and Mainten... Accounts Paya...

Total DRH Mechanical

Duane Jackson Bill 02/03/2012 Electrician for ... Repairs and Mainten... Accounts Paya...

Total Duane Jackson

Duncan Ford Bill 06/24/2014 Graphic Desig... Advertising and Pro... Accounts Paya...

Total Duncan Ford

Duston Burton Bill 04/27/2012 Food Processor Equipment Accounts Paya...

Total Duston Burton

Earl Montgomery Bill 03/15/2011 2/27-3... 2/27-3/12/11 ... Contractor Accounts Paya...

Total Earl Montgomery

Eat Healthy Check 04/22/2011 transfer to Eat... Ask My Accountant YAH KAI 4926 Deposit 05/02/2011 Deposit Food Sales YAH KAI 4926 Check 05/02/2011 transfered to ... Food Sales YAH KAI 4926 Deposit 05/13/2011 Deposit Health Spa Services YAH KAI 4926 Check 05/13/2011 transfer to Eat... Reimbursement YAH KAI 4926

Total Eat Healthy

ebay Check 01/05/2012 vitamix Equipment Cash in Drawer Bill 04/28/2012 Cut Poison B... Equipment Accounts Paya...

Total ebay

ebottles Bill 09/28/2012 165497 165497 Restaurant Supplies Accounts Paya... Bill 11/23/2012 167870 167870 Restaurant Supplies Accounts Paya... Bill 07/17/2013 bottles Restaurant Supplies Accounts Paya...

Total ebottles

Eddie Davis Bill 09/13/2013 001 Contractor Accounts Paya... Bill 09/13/2013 002 Contractor Accounts Paya... Bill 09/13/2013 003 Contractor Accounts Paya... Bill 09/18/2013 Final payment... Contractor Accounts Paya...

Total Eddie Davis

Page 65 A2 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Bill 12/07/2015 11/15-... 11/15-11/28/1... Contractor Accounts Paya... Bill 12/14/2015 Payroll Recon... Reimbursement Accounts Paya... Bill 12/21/2015 11/29-... 11/29-12/12/1... Contractor Accounts Paya...

Total Francisca Hernandez

Frank Banks Bill 10/21/2015 HVAC Parts HVAC Services Accounts Paya... Bill 10/21/2015 15-0257 15-0257 HVAC Services Accounts Paya...

Total Frank Banks

Franklin Foodservice Equipment & Supply Bill 03/06/2012 $ Aluminum S... Restaurant Supplies Accounts Paya...

Total Franklin Foodservice Equipment & Supply

Freddie Check 10/21/2012 dishwasher Contractor Cash in Drawer

Total Freddie

Freestate Auto and Truck Service Bill 07/10/2014 0082326 0082326 Repairs and Mainten... Accounts Paya... Bill 04/21/2015 Food ... Food Truck R... Repairs and Mainten... Accounts Paya... Bill 09/25/2015 Food Truck R... Repairs and Mainten... Accounts Paya...

Total Freestate Auto and Truck Service

Futuristic Studio LLC Bill 11/07/2011 website design Website Maintenance Accounts Paya...

Total Futuristic Studio LLC

Gary Faunteroy Bill 05/26/2011 Plumbing Rep... Repairs and Mainten... Accounts Paya...

Total Gary Faunteroy

Geoffrey Napper Bill 05/13/2013 04/21-... 04/21-05/04/1... Contractor Accounts Paya... Check 05/21/2013 gas Travel Expense Cash in Drawer Check 05/23/2013 gas expense Travel Expense Cash in Drawer Bill 05/27/2013 05/05-... 05/05-05/18/1... Contractor Accounts Paya... Bill 06/10/2013 05/19-... 05/19-06/01/1... Contractor Accounts Paya... Bill 07/08/2013 06/16-... 06/16-06/29/1... Contractor Accounts Paya... Bill 07/22/2013 06/30-... 06/30-07/13/1... Contractor Accounts Paya... Bill 08/05/2013 07/14 ... Payroll 07/14 ... Contractor Accounts Paya... Bill 08/12/2013 2013-... PAYROLL 20... Contractor Accounts Paya... Check 09/01/2013 Contractor Cash in Drawer Bill 09/02/2013 2013-... PAYROLL 20... Contractor Accounts Paya... Bill 09/16/2013 2013-... PAYROLL 20... Contractor Accounts Paya... Bill 09/30/2013 2013-... Payroll 2013-... Contractor Accounts Paya...

Total Geoffrey Napper

Gerson Health Media Bill 06/15/2015 16921 16921 Food Purchases Accounts Paya...

Total Gerson Health Media

Page 82 A3 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Green Shoots Distribution Bill 02/25/2012 50102... 50102482 Food Purchases Accounts Paya... Bill 03/21/2012 50102... 50102548, 50... Food Purchases Accounts Paya... Bill 04/09/2012 50102... 50102699 Food Purchases Accounts Paya... Bill 04/12/2012 50102... 50102812 Food Purchases Accounts Paya... Bill 05/31/2012 50102... 50102816,501... Food Purchases Accounts Paya... Bill 05/31/2012 50103... 50103126 Food Purchases Accounts Paya... Bill 08/30/2012 50103... 50103771 Food Purchases Accounts Paya...

Total Green Shoots Distribution

Greenbelt Labor Day Festival Bill 10/26/2013 Permit Business Licenses a... Accounts Paya...

Total Greenbelt Labor Day Festival

Greg Godwin Bill 01/03/2011 12/26/... 12/26/10-01/0... Contractor Accounts Paya... Bill 01/10/2011 01/02-... 01/02-01/08/1... Contractor Accounts Paya... Bill 01/17/2011 01/09-... 01/09-01/15/1... Contractor Accounts Paya... Bill 01/31/2011 1/16-1... 1/16-1/29/11 ... Contractor Accounts Paya... Bill 02/14/2011 01/30-... 01/30-02/12/1... Contractor Accounts Paya... Bill 02/28/2011 2/13-2... 2/13-2/26/11 ... Contractor Accounts Paya... Bill 03/14/2011 2/24-3... 2/24-3/12/11 ... Contractor Accounts Paya... Bill 03/28/2011 3/13-3... 3/13-3/26/11 ... Contractor Accounts Paya... Bill 04/11/2011 3/27-4... 3/27-4/9/2011... Contractor Accounts Paya... Bill 04/25/2011 4/10-4... 4/10-4/23/201... Contractor Accounts Paya... Bill 05/09/2011 4/24-5... 4/24-5/7/11 1... Contractor Accounts Paya...

Total Greg Godwin

Guardian Fire Protection Bill 04/15/2011 01323... 0132334-IN Fire Protection Servi... Accounts Paya... Bill 10/24/2011 0146521 0146521 Fire Protection Servi... Accounts Paya... Bill 08/29/2012 0161804 0161804 Fire Protection Servi... Accounts Paya... Bill 07/26/2013 01779... Past due bill fr... Fire Protection Servi... Accounts Paya...

Total Guardian Fire Protection

Guy Napper Bill 01/03/2011 12/26/... 12/26/10-01/0... Contractor Accounts Paya... Bill 01/10/2011 01/02-... 01/02-01/08/1... Contractor Accounts Paya... Bill 01/17/2011 01/09-... 01/09-01/15/1... Contractor Accounts Paya... Bill 01/31/2011 1/16-1... 1/16-1/29/11 ... Contractor Accounts Paya... Bill 02/14/2011 01/30-... 01/30-02/12/1... Contractor Accounts Paya... Bill 02/28/2011 2/13-2... 2/13-2/26/11 ... Contractor Accounts Paya... Bill 03/14/2011 2/24-3... 2/24-3/12/11 ... Contractor Accounts Paya... Bill 03/28/2011 3/13-3... 3/13-3/26/11 ... Contractor Accounts Paya... Bill 04/11/2011 3/27-4... 3/27-4/9/2011... Contractor Accounts Paya... Bill 04/25/2011 4/10-4... 4/10-4/23/201... Contractor Accounts Paya... Bill 05/09/2011 4/24-5... 4/24-5/7/11 7... Contractor Accounts Paya... Bill 05/23/2011 5/08-5... 5/08-5/21/11 ... Contractor Accounts Paya... Bill 07/04/2011 06/19-... 06/19-07/02/1... Contractor Accounts Paya... Bill 07/11/2011 07/03-... 07/03-07/09/1... Contractor Accounts Paya... Bill 07/18/2011 07/03-... 07/03-07/16/1... Contractor Accounts Paya... Bill 08/01/2011 07/17-... 07/17-07/30/1... Contractor Accounts Paya... Bill 08/15/2011 07/31-... 07/31-08/13/1... Contractor Accounts Paya... Bill 08/29/2011 08/14-... 08/14-08/27/1... Contractor Accounts Paya... Bill 09/12/2011 08/28-... 08/28-09/10/1... Contractor Accounts Paya... Bill 09/16/2011 For Customer... Advertising and Pro... Accounts Paya... Bill 09/26/2011 09/11-... 09/11-09/24/11 Contractor Accounts Paya... Bill 09/27/2011 Customer Loy... Advertising and Pro... Accounts Paya... Check 09/30/2011 event flyer Printing and Reprod... Cash in Drawer Bill 10/03/2011 Ad Cards Advertising and Pro... Accounts Paya... Bill 10/10/2011 09/25-... 09/25-10/08/1... Contractor Accounts Paya... Check 10/18/2011 loyalty cards Printing and Reprod... Cash in Drawer Bill 10/24/2011 10/09-... 10/09-10/22/1... Contractor Accounts Paya... Bill 10/24/2011 Loyalty Cards... Advertising and Pro... Accounts Paya... Check 10/28/2011 customer loya... Advertising and Pro... Cash in Drawer

Page 85 A4 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Bill 12/05/2011 11/20-... 11/20-12/03/1... Contractor Accounts Paya... Check 12/05/2011 1HRS Contractor Cash in Drawer Check 02/11/2012 Running Wires Contractor Cash in Drawer Check 02/16/2012 electrical 2 HRS Repairs and Mainten... Cash in Drawer Check 02/16/2012 3504 Drywall Repairs and Mainten... Cash in Drawer Bill 03/06/2012 repairs Repairs and Mainten... Accounts Paya...

Total Judah Ben Israel

Julia Nohemi Franco Romero Bill 06/11/2012 05/20-... 05/20-06/02/1... Contractor Accounts Paya... Bill 06/25/2012 06/03-... 06/03-06/16/1... Contractor Accounts Paya...

Total Julia Nohemi Franco Romero

Jumanne Clay Check 01/02/2011 1/2/11-1/8/11 Contractor Cash in Drawer Bill 01/09/2011 01/02-... 01/02-01/08/1... Contractor Accounts Paya... Check 01/16/2011 Contractor Cash in Drawer Check 01/30/2011 Contractor Cash in Drawer Check 02/28/2011 DISHWASHER Contractor Cash in Drawer Check 03/14/2011 Contractor Cash in Drawer

Total Jumanne Clay

Juvelina Ceron Carias Bill 04/15/2013 03/24-... 03/24-04/06/1... Contractor Accounts Paya... Bill 04/29/2013 04/07-... 04/07-04/20/1... Contractor Accounts Paya... Bill 05/13/2013 04/21-... 04/21-05/04/1... Contractor Accounts Paya... Bill 05/27/2013 05/05-... 05/05-05/18/1... Contractor Accounts Paya... Bill 06/10/2013 05/19-... 05/19-06/01/1... Contractor Accounts Paya... Bill 06/24/2013 06/02-... 06/02-06/15/1... Contractor Accounts Paya... Bill 07/08/2013 06/16-... 06/16-06/29/1... Contractor Accounts Paya... Bill 07/22/2013 06/30-... 06/30-07/13/1... Contractor Accounts Paya... Bill 08/05/2013 07/14 ... Payroll 07/14 ... Contractor Accounts Paya... Bill 08/12/2013 2013-... PAYROLL 20... Contractor Accounts Paya... Bill 09/02/2013 2013-... PAYROLL 20... Contractor Accounts Paya... Bill 09/16/2013 2013-... PAYROLL 20... Contractor Accounts Paya... Bill 09/30/2013 2013-... Payroll 2013-... Contractor Accounts Paya... Bill 10/14/2013 09/22-... 09/22-10/05/1... Contractor Accounts Paya... Bill 10/28/2013 10/06-... 10/06-10/19/1... Contractor Accounts Paya... Bill 11/11/2013 10/20-... 10/20-11/02/1... Contractor Accounts Paya...

Total Juvelina Ceron Carias

K-Mart Check 11/19/2012 Restaurant Supplies Cash in Drawer

Total K-Mart

Kahlilah Napper Bill 09/14/2015 08/23-... 08/23-09/05/1... Contractor Accounts Paya... Bill 09/28/2015 09/06-... 09/06-09/19/1... Contractor Accounts Paya... Bill 10/12/2015 09/20-... 09/20-10/03/1... Contractor Accounts Paya... Bill 10/26/2015 10/04-... 10/04-10/17/1... Contractor Accounts Paya... Bill 11/09/2015 10/18-... 10/18-10/31/1... Contractor Accounts Paya... Bill 11/23/2015 11/01-... 11/01-11/14/1... Contractor Accounts Paya... Bill 12/07/2015 11/15-... 11/15-11/28/1... Contractor Accounts Paya... Bill 12/21/2015 11/29-... 11/29-12/12/1... Contractor Accounts Paya...

Total Kahlilah Napper

Katom Bill 06/29/2012 Popcorn Bags Restaurant Supplies Accounts Paya... Bill 11/23/2012 KT102... KT1023667 Restaurant Supplies Accounts Paya... Bill 02/20/2013 KT104... KT1042895 Restaurant Supplies Accounts Paya... Bill 12/02/2013 KT111... KT1110357 Restaurant Supplies Accounts Paya... Bill 05/01/2014 KT115... KT1150399 Restaurant Supplies Accounts Paya...

Total Katom

Page 94 A5 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Keith Holmes Bill 06/14/2012 478903 478903 Food Purchases Accounts Paya... Bill 06/28/2012 478908 478908 Food Purchases Accounts Paya... Bill 07/10/2012 478909 478909 Food Purchases Accounts Paya... Check 07/12/2012 drinks Food Purchases Cash in Drawer Bill 07/13/2012 478910 478910 Food Purchases Accounts Paya... Bill 07/17/2012 478911 478911 Food Purchases Accounts Paya... Bill 07/27/2012 478914 478914 Food Purchases Accounts Paya... Bill 08/02/2012 478915 478915 Food Purchases Accounts Paya... Bill 08/09/2012 478917 478917 Food Purchases Accounts Paya... Bill 08/16/2012 478920 478920 Food Purchases Accounts Paya... Bill 09/17/2012 478927 478927 Food Purchases Accounts Paya... Check 09/17/2012 Food Purchases Cash in Drawer Bill 10/02/2012 478929 478929 Food Purchases Accounts Paya... Bill 10/17/2012 478930 478930 Food Purchases Accounts Paya...

Total Keith Holmes

Kimberly Armstrong Bill 03/28/2012 Bartender Ser... Entertainment Servi... Accounts Paya... Bill 04/03/2012 Beverage Pur... Food Purchases Accounts Paya... Bill 04/10/2012 412 Reminaing Ba... Entertainment Servi... Accounts Paya... Bill 11/01/2012 Outside Services Accounts Paya... Bill 08/24/2013 082413 Contractor Accounts Paya...

Total Kimberly Armstrong

Kingdom Management Bill 01/04/2011 3796 3796 JANUA... Rent Expense Accounts Paya... Bill 02/04/2011 3834 FEBRUARY ... Rent Expense Accounts Paya... Bill 02/09/2011 03 Inv.# 03 Wate... Utilities Water Accounts Paya... Bill 03/01/2011 March 2011 R... Rent Expense Accounts Paya... Bill 04/06/2011 #3946 Invoice 3946 ... Rent Expense Accounts Paya... Bill 04/21/2011 3980 3980 Rent Expense Accounts Paya... Bill 05/03/2011 411 Water Usage ... Utilities Water Accounts Paya... Bill 05/26/2011 4048 June 2011 Rent Rent Expense Accounts Paya... Bill 05/26/2011 511 Water Usage... Utilities Water Accounts Paya... Bill 06/20/2011 2009 CAM adj... Rent Expense Accounts Paya... Bill 06/24/2011 4098 4098 July Rent Rent Expense Accounts Paya... Bill 07/06/2011 611 Water Usage ... Utilities Water Accounts Paya... Bill 08/01/2011 Rent for August Rent Expense Accounts Paya... Bill 08/25/2011 4201 4201 Rent Expense Accounts Paya... Bill 09/26/2011 4235 ... 4235 October Rent Expense Accounts Paya... Bill 11/15/2011 November Rent Rent Expense Accounts Paya... Bill 12/01/2011 December Rent Expense Accounts Paya... Bill 12/29/2011 4349 4349 Rent Expense Accounts Paya... Bill 01/05/2012 112 112 Water Us... Rent Expense Accounts Paya... Bill 02/01/2012 4412 February Rent... Rent Expense Accounts Paya... Bill 03/01/2012 4449 4449 Rent Expense Accounts Paya... Bill 04/01/2012 april rent Rent Expense Accounts Paya... Bill 04/02/2012 412 water usage j... Rent Expense Accounts Paya... Bill 05/01/2012 4527 4527 Rent Expense Accounts Paya... Bill 05/22/2012 512 512 Water Us... Water Usage Accounts Paya... Bill 06/01/2012 4566 4566 June Rent Rent Expense Accounts Paya... Bill 07/01/2012 4611 J... 4611 July Rent Rent Expense Accounts Paya... Bill 07/12/2012 512,712 512,712 Wate... Water Usage Accounts Paya... Bill 08/06/2012 712 Water Usage ... Water Usage Accounts Paya... Bill 08/29/2012 812 812 Water Usage Accounts Paya... Bill 09/01/2012 4822 4822 Rent Expense Accounts Paya... Bill 09/26/2012 912 #912 Water U... Water Usage Accounts Paya... Bill 10/01/2012 October Rent Rent Expense Accounts Paya... Bill 10/23/2012 November Rent Rent Expense Accounts Paya... Bill 10/23/2012 1012 Water Usage ... Water Usage Accounts Paya... Bill 12/01/2012 4959 4959 Rent Expense Accounts Paya... Bill 12/18/2012 1112 Water Usage ... Water Usage Accounts Paya... Bill 01/01/2013 5027 Jan Rent Rent Expense Accounts Paya... Bill 01/08/2013 04 #04 WSSC W... Waste Services Accounts Paya... Bill 02/01/2013 5078 5078 Rent Fe... Rent Expense Accounts Paya... Bill 02/04/2013 113 113 Water Us... Water Usage Accounts Paya... Page 95 A6 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Bill 02/25/2013 213 213 water usa... Water Usage Accounts Paya... Bill 03/04/2013 5186 5186 March R... Rent Expense Accounts Paya... Bill 03/22/2013 5220 5220 April Rent Rent Expense Accounts Paya... Bill 04/02/2013 313 313 Water Usage Accounts Paya... Bill 05/01/2013 5329 5329 May Rent Rent Expense Accounts Paya... Bill 05/22/2013 5302, ... 5302, 5376 W... Water Usage Accounts Paya... Bill 06/06/2013 June ... June Rent Rent Expense Accounts Paya... Bill 07/03/2013 5526 5526 Rent Expense Accounts Paya... Bill 07/15/2013 Cam&Tax Inc... Rent Expense Accounts Paya... Bill 08/07/2013 Augus... Rent for Everl... Rent Expense Accounts Paya... Bill 09/06/2013 613 & ... Rent Expense Accounts Paya... Bill 10/01/2013 5758 5758 Rent Expense Accounts Paya... Bill 10/08/2013 October October Rent ... Rent Expense Accounts Paya... Bill 10/25/2013 1013 1013 Rent Expense Accounts Paya... Bill 11/01/2013 5796 5796 Rent Expense Accounts Paya... Bill 11/20/2013 CAM CAM Reimbursement Accounts Paya... Bill 12/05/2013 5872 5872 Dec Rent Rent Expense Accounts Paya... Bill 01/06/2014 5917 5917 Rent Expense Accounts Paya... Bill 01/06/2014 1213 1213 Rent Expense Accounts Paya... Bill 02/06/2014 5983 5983 Rent Expense Accounts Paya... Bill 03/01/2014 6015 6015 Rent Expense Accounts Paya... Bill 04/03/2014 6085 April Rent + 1... Rent Expense Accounts Paya... Bill 05/06/2014 4998-88 4998-88 Rent Expense Accounts Paya... Bill 06/04/2014 4998-... 4998-140 Rent Expense Accounts Paya... Bill 07/07/2014 4998-... 4998-174 Rent Expense Accounts Paya... Bill 08/05/2014 AUG ... AUG RENT Rent Expense Accounts Paya... Bill 09/05/2014 5740 5740 Rent Expense Accounts Paya... Bill 10/03/2014 5769 5769 Rent Expense Accounts Paya... Bill 10/15/2014 814 814 Rent Expense Accounts Paya... Bill 11/04/2014 5869 5869 Rent Expense Accounts Paya... Bill 12/05/2014 Dec. ... Dec. Rent Rent Expense Accounts Paya... Bill 01/05/2015 5928 5928 Rent Expense Accounts Paya... Bill 02/05/2015 FEb Rent Rent Expense Accounts Paya... Bill 04/03/2015 April Rent Rent Expense Accounts Paya... Bill 04/03/2015 315 315 water bill Rent Expense Accounts Paya... Bill 05/04/2015 May R... May Rent Rent Expense Accounts Paya... Bill 06/01/2015 6287 6287 Rent Expense Accounts Paya... Bill 06/05/2015 515 515 Water us... Water Usage Accounts Paya... Bill 07/03/2015 6337 July Rent, Lat... Rent Expense Accounts Paya... Bill 08/05/2015 6363 August 6363 Rent Expense Accounts Paya... Bill 10/05/2015 10063 10063 Rent Expense Accounts Paya... Bill 11/11/2015 November Re... Rent Expense Accounts Paya... Bill 12/04/2015 10154 10154 Rent Expense Accounts Paya...

Total Kingdom Management

kitchenall Bill 11/14/2012 51288 51288 Hot/Co... Equipment Accounts Paya...

Total kitchenall

Lamont Check 04/09/2012 dishwashing Contractor Cash in Drawer Check 06/21/2013 travel Travel Expense Cash in Drawer Check 06/25/2013 travel Travel Expense Cash in Drawer Check 07/12/2013 Travel Expense Cash in Drawer Check 07/17/2013 Travel Expense Cash in Drawer Check 08/09/2013 Travel Expense Cash in Drawer Check 06/11/2015 gas Travel Expense Cash in Drawer Check 06/11/2015 4th street run Travel Expense Cash in Drawer

Total Lamont

Page 96 A7 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split Thornton Properties Bill 08/22/2013 Security Security Rent Expense Accounts Paya... Bill 01/02/2014 6904 4th St. Rent Expense Accounts Paya... Bill 01/02/2014 6904 4th St. Rent Expense Accounts Paya... Bill 02/06/2014 Rent February Rent Rent Expense Accounts Paya... Bill 04/03/2014 April Rent 4th ... Rent Expense Accounts Paya... Bill 05/06/2014 May R... May Rent Rent Expense Accounts Paya... Bill 06/04/2014 June Rent Rent Expense Accounts Paya... Bill 08/04/2014 August Rent Rent Expense Accounts Paya... Bill 09/04/2014 September R... Rent Expense Accounts Paya... Bill 10/03/2014 Octob... October Rent Expense Accounts Paya... Bill 12/05/2014 Dec. ... Dec. Rent Rent Expense Accounts Paya... Bill 01/05/2015 Janua... January Rent Rent Expense Accounts Paya... Bill 04/03/2015 Vegari... April Rent Rent Expense Accounts Paya... Bill 05/01/2015 May R... May Rent Rent Expense Accounts Paya... Bill 08/05/2015 Ausugt Rent Rent Expense Accounts Paya... Bill 10/02/2015 Oct. Rent Rent Expense Accounts Paya... Bill 11/02/2015 Nove... November Rent Rent Expense Accounts Paya... Bill 12/04/2015 December Rent Rent Expense Accounts Paya...

Total Thornton Properties

Tijuana Best Bill 10/08/2013 muscadine gr... Food Purchases Accounts Paya...

Total Tijuana Best

Tina Pervine Bill 12/22/2014 11/30-... 11/30-12/13/1... Contractor Accounts Paya...

Total Tina Pervine

Tiondra Stevens Bill 01/10/2011 01/02-... 01/02-01/08/1... Contractor Accounts Paya... Bill 03/28/2011 3/13-3... 3/13-3/26/11 ... Contractor Accounts Paya... Bill 04/11/2011 3/27-4... 3/27-4/9/2011... Contractor Accounts Paya... Bill 04/25/2011 4/10-4... 4/10-4/23/201... Contractor Accounts Paya... Bill 05/09/2011 4/24-5... 4/24-5/7/11 8... Contractor Accounts Paya... Bill 06/06/2011 5/22-6... 5/22-6/04/11 ... Contractor Accounts Paya...

Total Tiondra Stevens

TPSS FOOD CO-OP Bill 01/03/2011 GROCERY 0... Food Purchases Accounts Paya... Bill 01/10/2011 GROCERY 1/... Food Purchases Accounts Paya... Bill 01/17/2011 GROCERY 1/... Food Purchases Accounts Paya... Bill 01/21/2011 GROCERY 1/... Food Purchases Accounts Paya... Bill 01/24/2011 GROCERY 1/... Food Purchases Accounts Paya... Bill 01/31/2011 GROCERY 1/... Food Purchases Accounts Paya... Bill 02/07/2011 GROCERY 2/... Food Purchases Accounts Paya... Bill 02/09/2011 GROCERY 2/... Food Purchases Accounts Paya... Bill 02/14/2011 392040 392040 Food Purchases Accounts Paya... Bill 02/19/2011 Shopping Food Purchases Accounts Paya... Bill 02/21/2011 Shopping Food Purchases Accounts Paya... Bill 02/23/2011 shopping Food Purchases Accounts Paya... Bill 02/26/2011 shopping Food Purchases Accounts Paya... Bill 03/05/2011 shopping Food Purchases Accounts Paya... Bill 03/10/2011 vegenaise Food Purchases Accounts Paya... Bill 03/11/2011 shopping Food Purchases Accounts Paya... Bill 03/12/2011 spike and sea... Food Purchases Accounts Paya... Bill 03/18/2011 EL and CSC s... Food Purchases Accounts Paya... Bill 03/25/2011 shopping Food Purchases Accounts Paya... Bill 04/01/2011 shopping Food Purchases Accounts Paya... Bill 04/08/2011 shopping Food Purchases Accounts Paya... Bill 04/15/2011 El and Eat He... Food Purchases Accounts Paya... Bill 04/22/2011 EL and Eat H... Food Purchases Accounts Paya... Bill 04/29/2011 shopping Food Purchases Accounts Paya... Bill 05/06/2011 shopping Food Purchases Accounts Paya... Bill 05/13/2011 shopping EL ... Food Purchases Accounts Paya... Bill 05/20/2011 shopping Food Purchases Accounts Paya... Page 177 A8 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Type Date Num Memo Account Clr Split USPS Check 01/10/2012 Postal Services Cash in Drawer Check 02/17/2012 Postal Services Cash in Drawer Bill 10/31/2012 postal service Postal Services Accounts Paya... Check 05/07/2013 Postal Services Cash in Drawer

Total USPS

V-Nine Seafood Bill 02/15/2011 0011 0011 Food Purchases Accounts Paya... Bill 03/12/2011 24988 PER CASE Food Purchases Accounts Paya... Check 03/30/2011 Food Sales YAH KAI 4926 Bill 06/01/2011 28084 bean curd Food Sales Accounts Paya... Bill 08/03/2011 30139 bean curd Food Sales Accounts Paya... Bill 09/26/2011 32223 Food Sales Accounts Paya... Check 10/25/2011 bean curd Food Sales Cash in Drawer Check 11/28/2011 Food Sales Cash in Drawer Bill 12/20/2011 35118 35118 Dried ... Food Sales Accounts Paya... Bill 01/19/2012 36053 Driend Bean ... Food Sales Accounts Paya... Bill 02/14/2012 36867 36867 Food Sales Accounts Paya... Check 03/08/2012 Food Purchases Cash in Drawer Check 03/27/2012 Food Purchases Cash in Drawer Check 04/10/2012 Food Purchases Cash in Drawer Check 04/17/2012 Food Purchases Cash in Drawer Check 05/06/2012 Food Purchases Cash in Drawer Check 05/24/2012 Food Purchases Cash in Drawer Check 06/14/2012 Food Purchases Cash in Drawer Check 07/03/2012 Food Purchases Cash in Drawer Bill 08/21/2012 43676 43676 Food Purchases Accounts Paya... Bill 09/12/2012 45360 45360 Food Purchases Accounts Paya... Bill 11/23/2012 47747 47747 Food Purchases Accounts Paya... Bill 01/14/2013 Food Purchases Accounts Paya... Check 03/05/2013 Food Purchases Cash in Drawer Check 04/23/2013 Food Purchases Cash in Drawer Check 05/20/2013 Food Purchases Cash in Drawer Bill 06/11/2013 53516 53516 Food Purchases Accounts Paya... Bill 09/27/2013 7522 Food Purchases Accounts Paya... Bill 01/16/2014 61154 61154 Food Purchases Accounts Paya... Check 04/20/2015 Food Purchases Cash in Drawer

Total V-Nine Seafood

Valentine Davies Bill 04/03/2014 April Rent Rent Expense Accounts Paya... Bill 05/06/2014 May R... May Rent Rent Expense Accounts Paya... Bill 06/04/2014 June Rent Rent Expense Accounts Paya... Bill 07/07/2014 July Rent Rent Expense Accounts Paya... Bill 08/04/2014 August Rent Rent Expense Accounts Paya... Bill 09/04/2014 September Rent Expense Accounts Paya... Bill 10/03/2014 Octob... October Rent Rent Expense Accounts Paya... Bill 01/05/2015 Janua... Rent Rent Expense Accounts Paya... Bill 04/03/2015 Rent Expense Accounts Paya... Bill 04/03/2015 Evolve... April Rent Rent Expense Accounts Paya... Bill 05/01/2015 May R... May Rent Rent Expense Accounts Paya... Bill 08/05/2015 August Rent+... Rent Expense Accounts Paya... Bill 10/02/2015 October Rent Rent Expense Accounts Paya... Bill 11/02/2015 November Rent Rent Expense Accounts Paya... Bill 12/04/2015 December Rent Rent Expense Accounts Paya...

Total Valentine Davies

Page 182 A9 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Amount Balance

160.00 160.00 105.00 265.00 105.00 370.00 105.00 475.00 60.00 535.00 60.00 595.00 60.00 655.00 60.00 715.00 90.00 805.00 90.00 895.00 30.00 925.00 21.00 946.00 30.00 976.00 30.00 1,006.00

1,006.00 1,006.00

200.00 200.00 156.65 356.65 200.00 556.65 208.79 765.44 247.04 1,012.48

1,012.48 1,012.48

6,866.08 6,866.08 6,866.08 13,732.16 475.00 14,207.16 6,866.08 21,073.24 6,866.08 27,939.32 6,866.08 34,805.40 643.55 35,448.95 6,866.08 42,315.03 272.13 42,587.16 6,594.00 49,181.16 6,866.08 56,047.24 411.87 56,459.11 6,866.08 63,325.19 6,866.08 70,191.27 6,866.88 77,058.15 7,000.00 84,058.15 7,000.00 91,058.15 7,076.97 98,135.12 2,107.70 100,242.82 7,076.97 107,319.79 7,076.97 114,396.76 7,076.97 121,473.73 834.04 122,307.77 7,076.97 129,384.74 773.51 130,158.25 7,076.97 137,235.22 7,076.97 144,312.19 1,334.85 145,647.04 561.34 146,208.38 436.46 146,644.84 7,076.97 153,721.81 503.00 154,224.81 7,076.97 161,301.78 7,351.13 168,652.91 409.98 169,062.89 7,351.13 176,414.02 1,291.48 177,705.50 7,351.13 185,056.63 350.00 185,406.63 7,351.13 192,757.76 758.43 193,516.19 Page 298 A10 APPENDIX A 10:54 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/08/17 Expenses by Vendor Detail Accrual Basis January 2011 through December 2015

Amount Balance 552.37 194,068.56 7,351.13 201,419.69 7,351.13 208,770.82 314.82 209,085.64 7,351.13 216,436.77 799.12 217,235.89 7,351.13 224,587.02 7,645.63 232,232.65 1,767.00 233,999.65 7,645.63 241,645.28 8,040.76 249,686.04 7,645.63 257,331.67 10,771.48 268,103.15 381.32 268,484.47 7,645.63 276,130.10 2,000.00 278,130.10 7,645.63 285,775.73 7,645.63 293,421.36 617.64 294,039.00 7,645.63 301,684.63 7,645.63 309,330.26 8,653.18 317,983.44 7,624.67 325,608.11 7,624.67 333,232.78 7,624.67 340,857.45 7,624.67 348,482.12 7,624.67 356,106.79 7,624.67 363,731.46 726.59 364,458.05 7,624.67 372,082.72 7,624.67 379,707.39 7,926.93 387,634.32 7,926.93 395,561.25 7,926.93 403,488.18 548.87 404,037.05 8,213.65 412,250.70 8,213.65 420,464.35 725.36 421,189.71 9,380.19 430,569.90 8,213.65 438,783.55 8,213.65 446,997.20 8,681.02 455,678.22 8,531.02 464,209.24

464,209.24 464,209.24

2,179.00 2,179.00

45.00 45.00 40.00 85.00 40.00 125.00 40.00 165.00 40.00 205.00 40.00 245.00 10.00 255.00 25.00 280.00

280.00 280.00

Page 299 A11 8:31 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/19/17 Accrual Basis Gross Profit APPENDIX B January 2011 through December 2015

Jan '11 - Dec 11 Jan '12 - Dec 12 Jan '13 - Dec 13 Jan '14 - Dec 14 Jan '15 - Dec 15 Ordinary Income $136,475 $1,019,788 $1,084,287 $771,341 $543,537 Income $1,672 Cost of Goods Sold -$51,030 -$482,464 $449,206 -$197,617 -$52,201 Gross Profit $87,117 $537,324 $1,533,493 $573,724 $491,336

CONFIDENTAL B1 Page 1 of 3 8:31 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/19/17 Accrual Basis Gross Profit APPENDIX B January 2011 through December 2015

Jan '11 - Dec 11 Jan '12 - Dec 12 Jan '13 - Dec 13 Jan '14 - Dec 14 Jan '15 - Dec 15

CONFIDENTAL B2 Page 2 of 3 8:31 PM EVERLASTING LIFE RESTAURANT & LOUNGE 02/19/17 Accrual Basis Gross Profit APPENDIX B January 2011 through December 2015

Jan '11 - Dec 11 Jan '12 - Dec 12 Jan '13 - Dec 13 Jan '14 - Dec 14 Jan '15 - Dec 15

CONFIDENTAL B3 Page 3 of 3 5:54 PM 02/16/17 Everlasting Life Restaurant Lounge Accrual Basis Profit Loss APPENDIX C Jan.through Dec. 2014

Jan - Dec 14 Ordinary Income/Expense Income Food Sales 771,341 Total Income 771,341 Food Purchases Cost of Goods Sold 197,617 Total COGS 197,617 Gross Profit 573,724 Expense Accounting 3,300 Advertisement - Business Licenses / Permits 1,478 Computer Expenses - Entertainment and Promotion 1,440 Gifts 88 Insurance 3,015 Laundry and Cleaning 1,771 License and Permits 521 Parking fees - Sales Expense 3,581 Supplies Expense 14,425 Telephone 1,960 Repairs and Maintenance 6,941 Taxes 24,498 Travel Expenses 1,811 Contractor 196,387 Utilities Expenses 10,076 HVAC services 4,417 Miscellaneous 3,371 Payroll Expenses 141,357 Rent Expense 137,077 Hygiene Services 6,506 Waste Services 1,924 Total Expense 565,944 Net Ordinary Income 7,780 Net Income 7,780

CONFIDENTAL C1 Page 1 of 1 APPENDIX C

Jan - Dec 15 Ordinary Income/Expense Income Food Sales 543766 Discrepancies Shortages -360 Overage 131

Total Discrepancies Total Income 543537 Cost of Goods Sold Food Purchases 52201 Total COGS 52201 Gross Profit 491336 Expense Gift Card Payment 10 Hygiene Services 309 Water Usage 725 Electrical Services 170 Alarm Services 160 Cashier Error 54 Entertainment Services 542 Restaurant Supplies 7059 Waste Services 5204 Cable 0 Accountant Services 1500 Advertising and Promotion 5034 Business Licenses and Permits 1344 Contractor 153108 HVAC Services 2483 Linen Expense 922 Miscellaneous Expense Tips 3206 Miscellaneous Expense - Other 26 Total Miscellaneous Expense 3232 Office Supplies 444 Payroll Expenses 143402 Pest Control 25 Reimbursement 2552 Rent Expense 91611 Repairs and Maintenance 5593 Taxes - Property 38254 Telephone and Internet Expense 2196 Travel Expense 1874 Utilities

ELECTRIC 5186 GAS 2882 Total Utilities 8068

C2 APPENDIX C

Total Expense 475873 Net Ordinary Income 15462 Net Income 15462

C3