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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

POM WONDERFUL LLC, a Delaware limited liability company, Plaintiff and Counterdefendant, v. ORGANIC JUICE USA, INC., a New York corporation; and DOES 1-10, inclusive, Defendants. AND RELATED COUNTERCLAIMS

Case No. 1-09-cv-04916-CM Assigned to Hon. Colleen McMahon

MEMORANDUM OF LAW IN SUPPORT OF POM WONDERFUL LLCS MOTION FOR SUMMARY JUDGMENT RE: COUNTERCLAIMS LOEB & LOEB LLP Christian D. Carbone (CC-6502) 345 Park Avenue New York, New York 10154 (212) 407-4000 ROLL LAW GROUP P.C. Daniel S. Silverman (Admitted Pro Hac Vice) Daniel A. Beck (Admitted Pro Hac Vice) 11444 West Olympic Boulevard Los Angeles, California 90064 (310) 966-8400 Attorneys for Plaintiff and Counterdefendant POM Wonderful LLC

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .........................................................................................................iii I. II. III. INTRODUCTION .............................................................................................................. 1 ORGANIC JUICES COUNTERCLAIMS ........................................................................ 2 THE MARONICK SURVEYS........................................................................................... 3 A. B. C. IV. V. Dr. Maronicks Print Advertisement Survey .......................................................... 4 The From Tree to Bottle Video Survey ............................................................... 6 The Conclusion of Dr. Maronicks Report ............................................................. 6

THE REBUTTAL REPORT OF DR. HENRY OSTBERG ............................................... 7 LEGAL STANDARD......................................................................................................... 7 A. B. Standards Applicable To Motion For Summary Judgment..................................... 7 Organic Juice Bears The Burden Of Presenting Admissible Scientific Survey Evidence Sufficient To Prove That Poms Advertising Deceives A Significant Portion Of Its Audience........................................................................ 8 In Deciding This Motion For Summary Judgment, The Court Must Analyze Whether Expert Testimony Proffered By Organic Juice In Opposition Is Admissible Pursuant To Federal Rule Of Evidence 702.................. 9 Consumer Surveys That Are Excessively Leading Are Unreliable As Evidence................................................................................................................ 10

C.

D. VI.

ARGUMENT .................................................................................................................... 11 A. The Maronick Surveys Regarding Poms Print Advertisements Are So Leading And Deeply Flawed That They Are Completely Unreliable. ................. 11 1. 2. Dr. Maronick Improperly Asked The Respondents To Focus On The Bottle Before Showing Them The Magazine Advertisement............. 12 Dr. Maronick Improperly Used A Reading Test, Forcing Respondents To Answer The Key Questions While Analyzing The Advertisements In Front Of Them. ............................................................ 13 Dr. Maronicks Open-Ended Question Was Leading. ............................... 16 The Percentage Of Respondents Mentioning Concentrate In Response To Dr. Maronicks Leading Open-Ended Question Falls Far Short Of The Cut-Off Required For Statistical Significance As A Matter Of Law. ............................................................ 17

3. 4.

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5.

Dr. Maronick Used An Extraordinarily Leading Question To Focus Respondents On Analyzing The Advertisement To Determine Whether The Product Was Made From Concentrate ........................................... 19 Dr. Maronicks Second Closed-End Question Was Presented On The Same Survey Page As The Leading Content Discussed Above, After His Reading Test Had Already Forced The Respondents To Form An Opinion On The Issue. .......................................................................................... 22 Dr. Maronicks Survey Regarding The Tree to Bottle Video Suffers From Additional Fatal Defects.............................................................................. 22 Dr. Maronick Did Not Use A Control................................................................... 22 Because Dr. Maronick Was Completely Unaware That The Tree To Bottle Video Is Displayed On A Webpage, He Did Not Show Respondents That Context, Making His Survey Results Further Unreliable.............................................................................................................. 23 The Court Should Find That Dr. Maronicks Surveys Are Inadmissible, And Grant Summary Judgment Accordingly. ........................................... 24

6.

B. 1. 2.

C. VII.

CONCLUSION................................................................................................................. 25

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TABLE OF AUTHORITIES CASES PAGE(S)

American Exp. Travel Related Services Co., Inc. v. MasterCard Intern. Inc., 776 F. Supp. 787 (S.D.N.Y. 1991)...................................................................................... 9, 25 American Greeting Corp. v. Dan-Dee Imports, Inc., 619 F. Supp. 1204 (S.D.N.Y. 1985)............................................................................ 14, 16, 21 American Home Products Corp. v. Procter & Gamble Co., 871 F. Supp. 739 (D.N.J. 1994) .........................................................................................18-19 Amorgianos v. Natl R.R. Passenger Corp. (Amtrak), 303 F.3d 256 (2d Cir. 2002).................................................................................................... 10 Avon Prods., Inc. v. S.C. Johnson & Son, Inc., 984 F. Supp. 768 (S.D.N.Y. 1997)............................................................................................ 9 Capellupo v. Nassau Health Care Corp., 2009 WL 1705749 (E.D.N.Y. June 16, 2009) .......................................................................... 1 Citizens Fin. Group, Inc. v. Citizens Natl Bank, 383 F.3d 110 (3d Cir. 2004).................................................................................................... 11 Colon v. BIC USA, Inc., 199 F. Supp. 2d 53 (S.D.N.Y. 2001)......................................................................................... 1 Coors Brewing Co. v. Anheuser-Busch Companies, Inc., 802 F. Supp. 965 (S.D.N.Y. 1992)...................................................................................Passim Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009)...................................................................................................... 8 Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)................................................................................................................ 10 Johnson & Johnson Vision Care, Inc. v. Ciba Vision Corp., 348 F. Supp. 2d 165 (S.D.N.Y. 2004)....................................................................................... 9 Johnson & Johnson * Merck Consumer Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294 (2d Cir. 1992).............................................................................................. 10, 19 Merck & Co. v. Mediplan Health Consulting, 425 F. Supp. 2d 402 (S.D.N.Y. 2006)....................................................................................... 9 Mylan Pharms., Inc. v. Proctor & Gamble Co., 443 F. Supp. 2d 453 (S.D.N.Y. 2006)....................................................................................... 8

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NewMarkets Partners LLC v. Oppenheim, 638 F. Supp. 2d 394 (S.D.N.Y. 2009)....................................................................................... 8 Nimely v. City of N.Y., 414 F.3d 381 (2d Cir. 2005).................................................................................................... 10 Nora Bevs., Inc. v. Perrier Group of Am., Inc., 164 F.3d 736 (2d Cir. 1998)...................................................................................................... 9 Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000)...................................................................................................... 1 Powell v. Natl Bd. of Med. Examrs, 364 F.3d 79 (2d Cir. 2004)........................................................................................................ 8 Proctor & Gamble Co. v. Ultreo, Inc., 574 F. Supp. 2d 339 (S.D.N.Y. 2009)....................................................................................... 9 Raskin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997)...................................................................................................9-10 S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 614 F. Supp. 1278 (S.D.N.Y. 1985).................................................................................Passim Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387 (7th Cir. 1992)................................................................................................... 11 THOIP v. The Walt Disney Company, 690 F. Supp. 2d 218 (S.D.N.Y. 2010)............................................................................... 22, 24 Time Warner Cable, Inc. v. DIRECTV, INC., 497 F.3d 144 (2d Cir. 2007)...................................................................................................... 8 United States v. Williams, 506 F.3d 151 (2d Cir. 2007).................................................................................................... 10 STATUTES Lanham Act 43(a) .................................................................................................................2, 8-9 N.Y. Gen. Bus. L. 349.............................................................................................................. 2, 9 N.Y. Gen. Bus. L. 350.............................................................................................................. 2, 9 Fed. R. Civ. P. 56 ............................................................................................................................ 1 Fed. R. Civ. P. 56(c) ................................................................................................................... 7, 9 Fed. R. Evid. 702 .......................................................................................................................9-10

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OTHER AUTHORITIES Jerre B. Swann, A Reading Test or a Memory Test: Which Survey Methodology is Correct?, 95 TMR 876 (July-Aug. 2005) ..........................................................................................14-15

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Plaintiff and counterdefendant Pom Wonderful LLC (Pom) moves for summary judgment pursuant to Fed. R. Civ. P. 56 (the Motion) against the counterclaims asserted by defendant and counterclaimant Organic Juice USA, Inc. (Organic Juice). I. INTRODUCTION

Hoping to distract from its sale of adulterated Elite Naturel pomegranate juice products the wrongful conduct that forms the basis for Poms lawsuit Organic Juice has asserted counterclaims alleging that Poms own advertising deceives consumers to believe that Pom juice products are not made from concentrate. Yet Organic Juice cannot establish that Poms advertising misleads a significant portion of its audience, a required element of its false advertising counterclaims. The two obscure and minor aspects of Poms advertising which Organic Juice challenges have no significant impact on consumers. Attempting to address that defect, Organic Juice has retained Dr. Thomas J. Maronick, who issued an expert report purporting to find that consumers are misled by Poms advertising. See Declaration of Daniel A. Beck, Exh. C (the Maronick Report). But Dr. Maronicks Internet surveys are an outright cheat, with numerous fundamental flaws that render the survey results completely unreliable. As explained below, not only are Dr. Maronicks surveys riddled with inexcusable errors in their structure and execution, they were leading to an extraordinary degree and intentionally designed by Dr. Maronick to be so, because the survey respondents were otherwise completely disinterested in the subject of Organic Juices counterclaims. Dr. Maronicks defective surveys are not admissible as evidence that Poms advertising deceives consumers and summary judgment should thus be granted in Poms favor.1 See S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 614 F. Supp. 1278, 1319 (S.D.N.Y. 1985) (without admissible survey, a claim of false advertising fails both as a matter of fact and as a matter of law).

A Daubert hearing is not required for a district court to decide a motion for summary judgment by ruling on the admissibility of expert testimony. See Oddi v. Ford Motor Co., 234 F.3d 136, 154-55 (3d Cir. 2000) (rejecting argument that Daubert hearing was required where court had reviewed record which included two depositions, a declaration, and an expert report); see also Capellupo v. Nassau Health Care Corp., 2009 WL 1705749, at *9 n. 10 (E.D.N.Y. June 16, 2009) (finding Daubert hearing unnecessary); Colon v. BIC USA, Inc., 199 F. Supp. 2d 53, 71 (S.D.N.Y. 2001) (same).

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II.

ORGANIC JUICES COUNTERCLAIMS

On May 26, 2009, Pom filed its Complaint in this action [Docket No. 1], asserting false advertising claims against Organic Juice pursuant to Lanham Act 43(a) and N.Y. Gen. Bus. L. 349 and 350. Poms Complaint alleges that Organic Juice sells products which purport to be 100% pure pomegranate juice, but which are in fact adulterated with foreign sugars and cheap filler juices. Organic Juices own juice testing expert testified during his deposition that the tests conducted by Poms expert show that Organic Juice probably sold adulterated juice. (Material Fact (MF) 1.) Organic Juice thus has no recourse left but to try distraction tactics. On August 28, 2009, Organic Juice filed an Answer and Counterclaim [Docket No. 12], alleging that Pom violates these same statutes by publishing advertising which misleads consumers into believing that its products are not made from concentrate. (Answer & Counterclaims, 76-86.) Organic Juice alleges that Poms advertising is deceptive in two specific respects. First, when Poms print advertisements (such as magazine ads) depict its bottle, they do not show the small-print text that is displayed on the bottom bulb of the actual bottle. (Answer and Counterclaims, 82-85). That omitted text includes the statement from concentrate, as well as the ounces of juice that the product contains. Organic Juice contends this omission in the print advertisements misleads consumers to believe the product is not made from concentrate. In fact, Pom removes all the text (including the ounces of the product) from the bottom of its bottle in print advertisement because it is distracting and barely legible. See Declaration of Matt Tupper (Tupper Decl.), 2. This is a very common advertising practice, routinely used (for example) by companies such as Kraft Foods and Gatorade in their print advertisements. Id., Exh. A, B. Second, Organic Juice alleges that Poms website displays a webpage called Tree to Bottle which allows visitors to click on a short video showing the making of Poms pomegranate juice product. (Answer and Counterclaims, 76-80). Organic Juice alleges that

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this video deceives consumers because it does not show the concentration/reconstitution step of making the product, nor the pasteurization step. Id. The Tree to Bottle video does not purport to show Poms complete manufacturing process, however. Dr. Maronick never bothered to check how the video was actually shown to consumers, and instead conducted his surveys while erroneously believing that the video was a television commercial. (MF 2.) In fact, Poms website embeds the video on a specific webpage,2 which explains that Tree to Bottle means that Pom is the only pomegranate juice maker that controls its production of pomegranate juice from growing to bottling, as shown by the video. See Tupper Decl., Exh. C (webpage image). The webpage does not purport to show Poms complete manufacturing process, nor does the embedded video. Instead, the video is displayed on a comparatively obscure part of Poms website, providing explanatory information to those interested in the Tree to Bottle difference. As of May 31, 2010, this special-interest webpage, which first appeared in early 2008, has been accessed only 2,597 times (MF 42), which is a small fraction of the hundreds of thousands of Pom juice customers. (MF 43.) Dr. Maronick was unaware of these facts when designing and conducting his survey. (MF 2, 44.) III. THE MARONICK SURVEYS

Dr. Maronick described his survey methodology, data, and opinions in his expert report dated March 30, 2010 (the Maronick Report). See Beck Decl., Exh. C. Following Poms request, Dr. Maronick later provided more legible copies of his Internet surveys, along with the underlying raw survey data, which his initial report had not included. See Beck Decl., Exhs. D and E (legible survey copies); Exh. F (raw data for print advertisement survey); and Exh. G (raw data for video survey). The Maronick Surveys were structured in two parts, a print advertisement

See http://www.pomwonderful.com/about/pom-truth/tree-to-bottle/

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survey and a video survey, directed at the two separate aspects of Poms advertising which Organic Juices counterclaims alleged to be misleading.3 A. Dr. Maronicks Print Advertisement Survey Dr. Maronicks first survey used one of Poms magazine advertisements as a stimulus. The survey respondents were divided into two groups, each with 200 respondents. The first group (the test group) was shown an image of Poms actual print advertisement, which included an image of the juice bottle, but did not display the text on the bottom bulb of that bottle, including the from concentrate language and ounces. (MF 3); see also Beck Decl., Exh. D at p. 3 (test ad image). The second group (the control group) was shown a control image of Poms advertisement, which Dr. Maronick had modified to include the smaller print text normally displayed on the bottom bulb of the bottle, including the from concentrate language. (MF 4); see also Beck Decl., Exh. D at p. 7 (control ad image). Before viewing these advertisement images, however, both groups first reviewed an instructional page which stated Below is an ad for pomegranate juice. Please look at the ad and bottle as you would if you were considering buying pomegranate juice. (MF 5) (emphasis added.) The Maronick Report incorrectly claims that respondents were told to look at it as you would if you were considering buying pomegranate juice., which would have been the standard approach. (MF 6). Instead, Dr. Maronick instructed the respondents to look at the ad and bottle before showing them the advertisement, focusing their attention on the bottle portion. (MF 5.) During his deposition, Dr. Maronick conceded that he asked the respondents to focus on the bottle despite knowing that it was not the generally accepted way to ask a consumer survey question, because he wanted to enhance the likelihood that they would see if [the concentrate text] was there. (MF 7.) After reviewing that instruction and clicking submit, the respondents were shown an image of the print advertisement. On that same page, Dr. Maronick placed his three central

The Maronick Report contends he conducted three surveys. Actually he conducted two surveys, one of which (the print advertisement survey) split the respondents into a test group and a control group.

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survey questions (this was the only survey page where Dr. Maronick used multiple questions), each of which the respondents had to answer, while viewing the advertisement image, before clicking submit and proceeding: 1. What does this ad say or suggest about this pomegranate juice? [PLEASE SPECIFY]. (respondents were required to give four separate answers to this question) 2. Based on what is said or suggested in the ad, how is POM Wonderful made? From fruit without any processing From concentrate without any processing From fruit but with some processing From concentrate but with some processing From artificial flavors Other, please specify 3. Based on what is said or suggested in the ad, how is POM Wonderful pomegranate juice made from concentrate? Yes No Dont know/Not sure (MF 8-12.) After the respondents answered all three of these questions and clicked submit, they were taken to two consecutive pages, each of which asked a question regarding the perceived benefits of juice that is not made from concentrate.4 Dr. Maronick then made a glaring error in his survey design. Rather than having the test group answer questions regarding the actual advertisement, and the control group answer questions regarding the modified control advertisement (as he had intended, following basic survey practice), he bungled the surveys skip pattern. The test group thus actually answered the survey questions regarding the actual advertisement, and afterward went right into the survey for

These questions suffered significant defects as well, but for space reasons Pom does not address them in this Motion.

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the control advertisement, answering questions for both the test and control groups. (MF 13.) In other words, the test group answered all the questions, and viewed the advertisement images, for both the test and control groups. Dr. Maronicks report claims that he dealt with this error by ignoring the test groups responses to the second set of survey questions when he analyzed the resulting data. (MF 14.) As explained below, that is not true; Dr. Maronick was misled and confused by his own error. The larger point, however, is that this error demonstrates a complete failure to exercise rudimentary due care in designing the surveys. Had Dr. Maronick simply reviewed his own final surveys prior to sending them out (a final check which basic professional competence required from him), he would have found this glaring error. But he did not. At deposition, he sought to explain himself as follows: Q. And did you do any final check after fixing it before sending the survey off? A. Apparently that final check I didnt do. Not adequately because, yes, I acknowledge that there was that skip command which had been in there earlier when in some -- when I was correcting something that I -- it got -- I missed -- missed putting back in is basically what happened. (MF 15.) Following these questions, the respondents then answered demographic questions. B. The From Tree to Bottle Video Survey For his second survey, Dr. Maronick used just one group of 200 respondents. Those respondents took a survey that was structured in largely the same way as the print advertisement survey, and which asked largely the same questions. Unlike his print advertisement survey, however, Dr. Maronick did not use a control for his video survey. (MF 17.) C. The Conclusion of Dr. Maronicks Report Dr. Maronick summarizes the resulting survey data, with varying degrees of accuracy, in several tables set forth in the Maronick Report. Those tables have obvious errors. For example, Table 1, Table 4, and Table 9 each contain two entries which purport to identify the number of respondents answering From concentrate without any processing. (MF 18.) Yet those identically-described entries list different numbers, which is an error. (MF 19.)

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On the basis of this data, Dr. Maronick concluded that it is my opinion that POM Wonderful is misleading consumers. (MF 20.) Dr. Maronick further concluded that it is, in my opinion, material to consumers whether or not the juice is made from concentrate, despite never having asked the respondents whether that was material. (MF 21, 22.)

IV.

THE REBUTTAL REPORT OF DR. HENRY OSTBERG

Pom retained Dr. Henry Ostberg to evaluate and rebut the Maronick Surveys. Dr. Ostberg is president of Admar Group, Inc. See Ostberg Decl., 2. He has conducted or supervised over 2,000 consumer surveys. Id. Dr. Ostberg has served as a marketing research expert in over 200 intellectual property and trademark litigations. Id., 4. With respect to the Maronick Surveys, Dr. Ostberg issued a report dated April 26, 2010 (the Ostberg Report) which sets forth his findings regarding the flaws in Dr. Maronicks surveys and analysis. See Declaration of Henry Ostberg (Ostberg Decl.), Exh. A. Dr. Ostberg concluded that it is my professional belief that the Maronick surveys failed to conform to the requirements of a properly-conducted consumer survey, due to the numerous and fatal defects discussed above. As a result, the findings of the Maronick expert report lack validity and reliability, and cannot purport to represent the opinions of prospective pomegranate juice purchasers. (MF 45.) Dr. Ostbergs professional opinion is that based only on the way the questions in the Maronick survey were phrased, the resulting data (disregarding all the other major defects) is unreliable and without real-world significance. (MF 46.) Indeed, it is Dr. Ostbergs opinion that, out of the over 200 times he has been engaged as an expert in connection with intellectual property and trademark litigations, the Maronick Surveys are among the most deficient consumer surveys he has encountered. (MF 47.) V. A. LEGAL STANDARD

Standards Applicable To Motion For Summary Judgment.

The standards applicable to a motion for summary judgment are well-settled: Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) .... This form of remedy is inappropriate when the issue to be resolved is both genuine and related to a disputed

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material fact. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. Moreover, the existence of a mere scintilla of evidence in support of nonmovants position is insufficient to defeat the motion; there must be evidence on which a jury could reasonably find for the nonmovant. Powell v. Natl Bd. of Med. Examrs, 364 F.3d 79, 84, (2d Cir. 2004); accord Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). B. Organic Juice Bears The Burden Of Presenting Admissible Scientific Survey Evidence Sufficient To Prove That Poms Advertising Deceives A Significant Portion Of Its Audience.

Organic Juices false advertising counterclaims require it to present evidence showing that Poms advertising is misleading. Two different theories of recovery are available to a plaintiff who brings a false advertising action under 43(a) of the Lanham Act. First, the plaintiff can demonstrate that the challenged advertisement is literally false, i.e., false on its face. Time Warner Cable, Inc. v. DIRECTV, INC., 497 F.3d 144, 153 (2d Cir. 2007). In the instant case, however, Organic Juice has failed to identify any factual statements made by Pom which are literally false on their face. Instead, Organic Juice must prove the other theory of recovery: Alternatively, a plaintiff can show that the advertisement, while not literally false, is nevertheless likely to mislead or confuse consumers. Id.; see also Mylan Pharms., Inc. v. Proctor & Gamble Co., 443 F. Supp. 2d 453, 459 (S.D.N.Y. 2006); NewMarkets Partners LLC v. Oppenheim, 638 F. Supp. 2d 394, 405 (S.D.N.Y. 2009). With respect to the latter theory of recovery for misleading advertising, a district court must rely on extrinsic evidence [of consumer deception or confusion] to support a finding of an implicitly false message. Time Warner Cable, 497 F.3d at 153 (emphasis original) (quoting Schering Corp. v. Pfizer, Inc., 189 F.3d 218, 229 (2d Cir. 1997)). This requires admissible scientific survey evidence. To prove the second type of false advertising the plaintiff must come forward with specific scientific survey evidence of consumer reaction. The Courts own perception of whether or not the advertising is misleading is irrelevant and insufficient. S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 614 F. Supp. 1278, 1319 (S.D.N.Y. 1985)). Absent such admissible survey evidence, [the plaintiffs] claim of false advertising fails both as a matter of fact and as a matter of law. Id: see also American Exp. Travel Related Services Co., Inc. v. MasterCard Intern. Inc., 776 F. Supp. 787, 792 (S.D.N.Y. 1991) (If plaintiff

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fails to introduce a consumer reaction survey, plaintiff cannot prevail on the theory of implicit falsity.). Using the consumer survey, the plaintiff must show that the alleged false advertising misleads or will likely mislead a significant portion of the advertisements audience, a required element of a Lanham Act 43(a) false advertising claim. See Johnson & Johnson Vision Care, Inc. v. Ciba Vision Corp., 348 F. Supp. 2d 165, 178 (S.D.N.Y. 2004) (second claim element is that the false or misleading statement has actually deceived or has the capacity to deceive a substantial portion of the intended audience.). The same standard applies to Organic Juices state-law claims for false advertising. Insofar as Organic Juice also asserts its false advertising claims pursuant to N.Y. Gen. Bus. L. 349 and 350, those claims are subject to the same standard of proof as its Lanham Act claim. See Proctor & Gamble Co. v. Ultreo, Inc., 574 F. Supp. 2d 339, 346 (S.D.N.Y. 2009); Merck & Co. v. Mediplan Health Consulting, 425 F. Supp. 2d 402, 410 n. 6 (S.D.N.Y. 2006) (the federal standards applicable to false advertising claims are substantially similar to the standards applicable to claims under the New York deceptive trade practices statute.); Avon Prods., Inc. v. S.C. Johnson & Son, Inc., 984 F. Supp. 768, 800 (S.D.N.Y. 1997) (The standards for bringing a claim under 43(a) of the Lanham Act are substantially the same as those applied to claims brought under ... 349 and 350 of the New York General Business Law.) C. In Deciding This Motion For Summary Judgment, The Court Must Analyze Whether Expert Testimony Proffered By Organic Juice In Opposition Is Admissible Pursuant To Federal Rule Of Evidence 702.

In deciding whether a motion for summary judgment should be granted, a district court may only consider admissible evidence. See Nora Bevs., Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). Thus, as the Second Circuit has explained, it is the proper role of the district court to consider the admissibility of expert testimony in determining whether summary judgment is warranted: Because the purpose of summary judgment is to weed out cases in which there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law, Fed. R. Civ. P. 56(c), it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment. Although disputes as to the validity of the underlying data go to the weight of the evidence, and are for the fact-finder to resolve, questions of admissibility are properly resolved by the court. The resolution of evidentiary questions on summary judgment conserves the resources of the parties, the court, and the jury. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (emphasis added) (internal citations and quotation marks omitted). In other words, [t]he court performs the same role at the summary judgment phase as at

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trial; an expert's report is not a talisman against summary judgment. Id. Thus, if the expert testimony is excluded as inadmissible under the Rule 702 framework articulated in Daubert and its progeny, the summary judgment determination is made by the district court on a record that does not contain that evidence. Id. at 66-67. Such an analysis must be conducted even if precluding the expert testimony would be outcome determinative. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997). The admissibility of expert testimony is analyzed under Rule 702 of the Federal Rules of Evidence, which requires the district court to make several determinations before allowing expert testimony: (1) whether the witness is qualified to be an expert; (2) whether the opinion is based upon reliable data and methodology; and (3) whether the experts testimony on a particular issue will assist the trier of fact. See Nimely v. City of N.Y., 414 F.3d 381, 397 (2d Cir. 2005). With respect to reliability, the district court should consider the indicia of reliability identified in Rule 702, namely, (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case. United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (quoting Amorgianos v. Natl R.R. Passenger Corp. (Amtrak), 303 F.3d 256, 266 (2d Cir. 2002) (internal quotation marks omitted)). [W]hen an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony. Amorgianos, 303 F.3d at 266. The proponent of the expert testimony bears the burden of establishing the admissibility of such testimony under the Daubert framework by a preponderance of the evidence standard. See Daubert, 509 U.S. at 593, n. 10 (These matters should be established by a preponderance of proof.). D. Consumer Surveys That Are Excessively Leading Are Unreliable As Evidence

It is well-established that [t]he evidentiary value of a surveys results rests upon the underlying objectivity of the survey itself. Johnson & Johnson * Merck Consumer Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294, 300 (2d Cir. 1992) (citing Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 118 (2d Cir. 1984)). As the district court noted in Coors Brewing Co. v. Anheuser-Busch Companies, Inc., 802 F. Supp. 965, 972 (S.D.N.Y. 1992), objectivity is

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measured by such factors as whether the survey was properly filtered to screen out those who got no message from the advertisement, whether the questions are directed to the real issues, and whether the questions are leading or suggestive. A consumer survey is properly excluded where it is so flawed that it would be unhelpful or harmful to the trier of fact. See e.g. Citizens Fin. Group, Inc. v. Citizens Natl Bank, 383 F.3d 110, 121 (3d Cir. 2004); Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387, 394 (7th Cir. 1992) (affirming exclusion of a survey because it was flawed and did not create a genuine issue of material fact); see also S.C. Johnson, 614 F. Supp. At 1319 (absent admissible survey evidence, [the plaintiffs] claim of false advertising fails both as a matter of fact and as a matter of law.) As explained below, and as Dr. Maronick essentially conceded in his deposition, the Maronick surveys were crafted with such a single-minded focus on distorting the resulting data that they would be actively harmful to the jury. That is particularly true because Dr. Maronicks surveys suffer from such a broad variety of different errors in methodology and execution. VI. A. ARGUMENT

The Maronick Surveys Regarding Poms Print Advertisements Are So Leading And Deeply Flawed That They Are Completely Unreliable.

An insurmountable obstacle for Organic Juices counterclaims is that most consumers do not look at print advertisements for juice and unprompted read all the fine print on them to form a belief regarding whether a product is made from concentrate or not. That is a relatively peripheral issue; consumers may read the advertisements tagline and glance at the pictures, but they do not generally analyze all visible text in close detail to form an opinion regarding how the product was manufactured. Organic Juice alleges that Poms print advertisements remove smallprint text on the bottom of the bottle which states that the product is made from concentrate (along with the ounces it contains), but it has no evidence that a non-trivial number of consumers pay any attention to that text and form beliefs regarding this specific issue when viewing Poms juice advertisements. The alleged omission simply has no impact on typical consumers. Dr. Maronick dealt with this intractable problem the only way he could: By cheating. He designed his surveys to make the respondents carefully scrutinize the bottle image in the print

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advertisement (both in the test and control group) while being required to opine whether the product was made from concentrate. Respondents in both groups were forced to review the print advertisements, form opinions on this specific issue, and answer questions about whether the product was made from concentrate, all while looking directly at the advertisements bottle image. During his deposition, Dr. Maronick testified that he designed numerous aspects of his surveys to make the respondents focus their attention specifically upon the subject of Organic Juices counterclaims, inducing them to closely analyze the advertisements to determine whether the product was manufactured from concentrate. Those leading aspects are summarized below and, in the aggregate, present a textbook case of an improper leading survey. 1. Dr. Maronick Improperly Asked The Respondents To Focus On The Bottle Before Showing Them The Magazine Advertisement

As his preliminary instruction, Dr. Maronick asked the survey respondents to focus on the bottle before showing them a print advertisement that included many different components, of which the bottle was just one. (MF 5.) Dr. Maronick knew this was not the generally accepted approach; his own report even misquotes the instruction he used, incorrectly quoting the generally accepted approach he should have used instead. (MF 6.) Nonetheless, to ensure he obtained his desired results, Dr. Maronick asked the respondents to first focus on the subject of Organic Juices counterclaim before they looked at the advertisements: Q. Why did you decide to do that rather than simply asking them to look at the ad as if they were considering buying pomegranate juice and leaving that unsaid? A. Because -- I could have done that. Thats the generally accepted way. But I thought this way it would create more of an opportunity for them to see that claim if they were -or attend to that claim, the from concentrate claim. It just enhanced the likelihood that they would see it if its there. (MF 7.) After reviewing this instruction, the respondents proceeded to the next page.

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2.

Dr. Maronick Improperly Used A Reading Test, Forcing Respondents To Answer The Key Questions While Analyzing The Advertisements In Front Of Them.

Dr. Maronick testified that his surveys were a reading test. (MF 23.) A reading test asks the respondent to look at the stimulus and answer specific questions while still looking at the stimulus. That is opposed to a memory test, which asks the respondent to look at a stimulus as they ordinarily would as a consumer, the stimulus is then taken away, and the respondent is then asked about the messages they took from it. As the name indicates, a reading test essentially assesses how respondents read specific aspects of an advertisement.5 The respondent can be directed to read any portion of an advertisement in front of them and answer questions about it. A reading test does not determine whether respondents would ordinarily read the advertisement in that manner, however. Dr. Maronick thus admitted that his reading test would allow respondents to answer even the most obscure questions about the advertisements: Q. Now, isnt it true that by asking closed-end questions I could elicit your opinion about even the most obscure features of this advertisement? Yes. Clearly you could get virtually anything obscure. Q. And I had just asked you earlier to read the words backwards, correct? And you were able to do that. A. Yes. Q. And I could ask you again something as simple as saying can you count the numbers -- or the number of letters in the -- contained within the balloon on this page. A. Yes. Q. And you could answer that question quite accurately. A. Yes.

Reading test is also sometimes used as a pejorative description of surveys where the respondents are asked questions about what they had read on a stimulus that is no longer in front of them. That is not what Dr. Maronick meant, however, by calling his surveys a reading test.

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(MF 24.) Dr. Maronick thus conceded that his reading test did not show whether consumers would ordinarily think about the from concentrate issue when looking at the advertisement: Q. And do you have any evidence as to the percent of actual viewers who look at this advertisement without being prompted with closed-end questions and think about the issue of whether its from concentrate or not? A. I dont have any information as to that other than looking at the responses to the open-ended question. (MF 25.) A court in this district harshly criticized this very approach: this survey tested the participants ability to read and little else . . . The questions themselves suggest differentiation and not similarity or identity: the participants are alerted to a difference and can find it simply by reading the package. The test does not simulate actual buying habits. American Greeting Corp. v. Dan-Dee Imports, Inc., 619 F. Supp. 1204, 1216 (S.D.N.Y. 1985). Aggravating this severe flaw, Dr. Maronicks own article regarding how to structure an Internet survey warned that reading tests may be inappropriate for advertising or package claims. As he testified: Q. Do you see the sentence that says, As noted by Swan 2005 a reading test generates higher levels of attention but may be inappropriate if the issue being examined is recall or consumer confusion with advertising or package claims? A. Yes. Q. Do you agree with Swans position? A. Yes, I do. But, again, thats -- as I said in my judgment it generates this is the most conservative approach in this case because it does, as it says here and as Swan says, it generates higher levels of attention. So in the case here if the consumers didnt see where the ad said or suggested anything about the -- the from concentrate where they had the opportunity to look at it more closely, clearly the -- it would have had less attention in a situation if it was a memory test. (MF 26.) But Dr. Maronick testified that he had not reviewed his own article before conducting the Maronick Surveys (MF 27), did not recall what Swann said (MF 27), and could not explain
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when it was inappropriate to use a reading test. (MF 28, 29.) Instead, Dr. Maronick testified that he chose a reading test in order to maximize the respondents attention to the from concentrate issue, with the goal of overcoming the respondents near-complete indifference to that issue when viewing the advertisement as they ordinarily would. But Swans article does not authorize that practice. See Jerre B. Swann, A Reading Test or a Memory Test: Which Survey Methodology is Correct?, 95 TMR 876 (July-August 2005). Instead, Swann notes that a reading test may be appropriate for situations where the consumer inherently pays high levels of attention to reading the text in question. Id. If consumers do not pay such attention to the issue, it is inappropriate to make them do so. A reading test is inappropriate, however, to disprove likely confusion among normally inattentive consumers, particularly where the stimulus conveys information that might not otherwise come to a consumers attention. Id. at 880. That is typical for most consumer purchases. Research establishes, however, that low involvement conditions characterize much of consumer processing. . . . Grocery and hardware aisles are scanned in seconds, and the majority of purchasing decisions are made while in the store. Id. at 879. Dr. Maronick may have dimly remembered a particular footnote in the Swann article, which notes that a reading test is more conservative for a plaintiff in a trademark case. Id. at 880 n. 30 (Because it is a tougher test, a reading test should always be admissible to prove likelihood of point-of-sale confusion, or initial-interest or post-sale confusion, and should produce a conservative estimate). If so, Dr. Maronick misunderstood that footnote. The reading test is tougher for a trademark infringement case because the trademark plaintiffs burden is to show that respondents perceive the marks as the same, which is tougher when the respondents can search for even minor differences while comparing the trademarks in front of them. By sharp contrast, in a case (like this one) alleging false advertising by omission, the plaintiff seeks to show the exact opposite: that a particular advertising omission causes a difference in the respondents beliefs. A reading test significantly increases the respondents ability to find differences. To take a simple example, if two words in this paragraph were changed, any reader could easily identify the words that were changed by comparing both versions (a reading test). To accurately identify such differences by recall alone, after the
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paragraphs were taken away, would be far harder. By making it easy for respondents to find and answer questions regarding even minute textual differences, a reading test enables the surveys respondents to answer questions regarding otherwise obscure differences unlike actual consumers. See, e.g., American Greeting Corp., 619 F. Supp. at 1216 ([T]he participants are alerted to a difference and can find it simply by reading the package. The test does not simulate actual buying habits.). Dr. Maronick thus got it completely backwards. A reading test is not a way of forcing otherwise inattentive respondents to closely analyze an advertisement in front of them for obscure issues as he used it. Instead, it is useful when the ordinary consumer already pays that level of attention to the issue in question. Forcing a survey respondent to pay far more attention than the ordinary consumer would is the definition of leading. 3. Dr. Maronicks Open-Ended Question Was Leading.

Remarkably, Dr. Maronick even managed to design his open-ended question to be leading. Specifically, he required the respondents to state four different responses to the question what does this ad say or suggest about this pomegranate juice? [PLEASE SPECIFY]. The respondents were not permitted to provide any less than four responses to that question, with the advertisement in front of them, in order to complete the test. (MF 10.) Thus he loaded the question to make the respondents state more answers than they otherwise might, if allowed the freedom to fill in less than four choices.6 Worse, Dr. Maronick forced the respondents to answer this question in conjunction with answering two closed-end questions about whether the product was made from concentrate, before the respondents were permitted to proceed to the next survey page. (MF 9.) By making the respondents answer all three questions together (notably, no other page on either of his surveys contained multiple questions), he corrupted the open-ended question.7 What Dr. Maronick should have done is simply asked the open-ended question first, The respondents could, however, and frequently did, fill their four response spaces with gibberish (like efdfghj), or non-answers typed to get past the question (like /, xx, or na). 7 Dr. Maronick testified that the respondents could revise their answers to the open-ended question to reflect how they answered the closed-end questions on the same survey page. (MF 30.)
6

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let the respondents choose how many answers they would give, and then proceeded to ask additional questions on separate survey pages. 4. The Percentage Of Respondents Mentioning Concentrate In Response To Dr. Maronicks Leading Open-Ended Question Falls Far Short Of The Cut-Off Required For Statistical Significance As A Matter Of Law.

Even if the data resulting from Dr. Maronicks leading open-ended question was valid, that same data decisively proves that Dr. Maronicks survey is unreliable and defective as a matter of law. Dr. Maronick made egregious errors when summarizing the raw data he received in response to his open-ended question. Those errors were caused by his botching of the surveys design, which incorrectly made the test group answer the questions intended for the test group and the questions for the control group. The Maronick Report claims that the test group did not state the word concentrate in any of its responses to the open-ended question, which the raw survey data confirms. For the second group of respondents (the control group), however, which saw the modified print ad with the from concentrate text added back on the bottle image, the Maronick Report incorrectly claims that [i]t is noteworthy that 25 respondents mentioned of [sic] the word concentrate. (MF 31.) Dr. Maronick thus asserted that 25 out of the 200 respondents in the second group mentioned concentrate in their responses to the openended question. That is incorrect in multiple respects. Dr. Maronick forgot that his botched survey design had forced the test group to answer both its own questions and those of the control group, so that a total of 400 respondents answered the open-ended question regarding the control groups advertisement image 200 control respondents, and 200 test respondents. Thus 25 total responses to the open-ended question regarding the control advertisement did include the word concentrate but only because Dr. Maronick mistakenly combined the responses from both the control and test groups, misled by his own survey design error. (MF 32.) Thus Dr. Maronick was mistaken in claiming that his reports analysis excluded the test groups responses to the control groups questions. In fact, only eleven (11) of the respondents who mentioned the word concentrate were in the control group. (MF 34.) The remaining 14 responses which mentioned the word concentrate were from the test group. (MF 33.) Four of

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those responses were just the identical response repeated four times by the same respondent (MF 33), however, leaving only 22 out of 400 total respondents who mentioned the word concentrate when answering the control group question. (MF 35.) Despite their comparatively limited information, the respondents noticed and made colorful comments about Dr. Maronicks glaring error in the surveys design: NOW I can read that it is from concentrate, which I could not read in the first picture. Now it says it is made from concentrate. Its also good for heart and prostate. I already answered this above, but it forced me to put stuff in all the boxes. Dumb! (MF 36.) Indeed. In fact, only 5.5% of the total respondents (22 out of 400) mentioned the word concentrate in one of their four required responses to the open-ended question regarding the control advertisement. (MF 35.) For the control group specifically (the only group whose data is properly compared with the test groups data), only 11 respondents out of 200 (5.5%) mentioned the word concentrate in one of their responses (MF 34), despite the surveys exceptionally leading nature, and despite the respondents being forced by Dr. Maronick to provide four separate responses. Put another way, although the control group gave 800 different responses to the open-ended question (MF 33), just eleven (11) of those responses included the word concentrate (MF 34) confirming that this was an issue of absolutely negligible impact. That is far below the cut-off level that a false advertising claim requires. See Coors Brewing, 802 F. Supp. at 974 as discussed above, this answer is statistically insignificant because it falls far short of the 10% cut-off for statistical significance with respect to open-ended questions.) (emphasis added). As a matter of law, the survey respondents did not take away a message regarding the from concentrate issue at a statistically significant level, despite Dr. Maronicks effort to force that result by every illegitimate means possible. District courts reject consumer surveys which lead respondents to address issues that had barely been mentioned in their responses to open-ended questions: Thus, when survey participants were asked 4 separate times what were the messages of the FSI, only 12 participants (approximately 2%) responded that ALEVE lasted longer than ADVIL. [] It was only when they were asked what, if anything, does this ad tell
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you about ALEVE in comparison to ADVIL-a question that itself was repeated 4 times and which explicitly suggested that the participants make a comparison-did the survey produce its 68% response. American Home Products Corp. v. Procter & Gamble Co., 871 F. Supp. 739, 748 (D.N.J. 1994). It is classic survey abuse to ignore a negligible open-ended response on an issue, instead forcing respondents to answer specific leading questions regarding that issue. As the Second Circuit summarized in upholding a district courts rejection of this improper approach: [T]he responses to questions 8a and 8b, which elicited only nine anti-aluminum reactions from the 300 people surveyed, were the most persuasive evidence of the message communicated by Ingredients-Revised. She attributed this to the fact that questions 8a and 8b were open-ended, and, therefore, more objective. On the other hand, Judge Cedarbaum discounted the value of the 86 antialuminum/magnesium responses obtained from the 220 people who answered questions 14a-c on the grounds that those questions ranged from being somewhat leading to very leading. Accordingly, she rejected Mr. Ridgways calculation that Ingredients-Revised communicated an anti-aluminum message to 45% of those surveyed-a figure largely based upon answers received to questions 14a-c. Johnson & Johnson * Merck, 960 F.2d at 300. 5. Dr. Maronick Used An Extraordinarily Leading Question To Focus Respondents On Analyzing The Advertisement To Determine Whether The Product Was Made From Concentrate

Dr. Maronick followed his purportedly open-ended question with a completely inappropriate closed-end question on the same survey page: Based on what is said or suggested in the ad, how is POM Wonderful made? From fruit without any processing From concentrate without any processing From fruit but with some processing From concentrate but with some processing From artificial flavors Other, please specify [responses could be written in] (MF 11.) Dr. Maronick testified that he included this question (question 7) to get the respondents thinking about how the juice was made, while looking the advertisement, before asking them another closed-end question about concentrate (question 8, which again was on the same page):

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Q. So you didnt have to ask about processing in order to ask whether they believed the fruit -- the juice is made from concentrate or not. A. I dont agree with that. I think that in question number I had to kind of get them thinking about how its made. And then I could focus on the concentrate issue. How is pomegranate made. From fruit. Well, yes, its made from fruit because its pomegranates a fruit. Well, the question is is there an intermittent step. We know it didnt come from concentrate. It came from fruit. It came from pomegranate. Well, is there something in between. And thats why I thought the appropriate vehicle to tap into that how it is made is to include in question 7 the processing. That its made from fruit without processing the options that are there. When they get to question 8 then theyve already started Ive got them thinking about how is this made. And theres theyre now thinking not just what it is, what the ad said, but what did it say about how its made. Then I can focus them more specifically and did focus them more specifically on whether or not its made from concentrate. (MF 37.) Again, that is cheating. Dr. Maronick included this question to distort the respondents ordinary viewing of the advertisement, making them instead view the advertisements while focus[ing] more specifically on whether or not its made from concentrate, the very issue that his client, Organic Juice, had asserted as the basis for its counterclaim. As Dr. Maronick testified, he had to do so in order to focus them on the concentrate issue. (MF 37.) Loading the dice in that manner was completely improper. As the Coors Brewing court noted, [b]y asking whether, [b]ased on the commercial, the respondent believes Coors Light and Natural Light are made the same way or different ways, Question 5 assumes that the commercial conveys some message comparing how the two beers are made. Coors Brewing, 802 F. Supp. at 972. This question suffers from three additional unacceptable flaws, rendering the data even more unreliable. First, departing from standard survey practice, Dr. Maronick did not provide respondents with a dont know option. (MF 38.) Instead he forced every survey respondent to opine on how the juice was made, regardless of whether the respondent had formed such a belief
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by viewing the advertisement as an ordinary consumer would. He explained that there was no need for an I dont know option here because it was a reading test all respondents could thus simply go back to the advertisement, analyze it further, and form an opinion on the specific issue they were being asked about: Q. Why didnt you include a dont know option for this question? A. I didnt think it was -- it didnt seem to me that an I dont know would be the appropriate question. Again, because its a reading test. Its a reading survey as opposed to a memory test. Usually a dont know, you have a question dont know, dont recall with reading tests. I dont recall. I dont see it. But here where they can go back and look at it the answers I dont know -- well, I can go back and look. (MF 38.) Dr. Maronick thus did not permit the respondents not to know; instead the respondents were effectively required to state an opinion on whether based on what is said or suggested in the ad the product was made with processing and/or from concentrate. That is unacceptably leading. See Coors Brewing, 802 F. Supp. at 972-73 (Moreover, Question 5 failed to inform respondents that they also could respond that they did not know if the commercial implied that Coors Light and Natural Light are made by different processes.). Second, the term processing is very unclear and confusing, since it can mean almost anything. During his deposition, Dr. Maronick testified that processing meant whatever it takes to get the juice into a bottle. (MF 39.) By that definition, all bottled juice is made with processing, making the question a tautology. As Dr. Ostberg opines, this question is hopelessly unclear, rendering the resulting data unreliable and without real-world significance. (MF 46.) Third, the question improperly asks respondents Based on what is said or suggested in the ad, how is POM Wonderful made, thereby communicating to respondents that the advertisement bears on and speaks to these issues of manufacture. That is further leading. See, e.g., American Greeting Corp., 619 F. Supp. at 1216 ([T]he participants are alerted to a difference and can find it simply by reading the package. The test does not simulate actual buying habits.).

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6.

Dr. Maronicks Second Closed-End Question Was Presented On The Same Survey Page As The Leading Content Discussed Above, After His Reading Test Had Already Forced The Respondents To Form An Opinion On The Issue.

Dr. Maronicks second closed-end question was as follows: Based on what is said or suggested in the ad, how is POM Wonderful pomegranate juice made from concentrate? Yes No Dont know/Not sure (MF 12.) This question was asked on the same page which displayed the print advertisement and the two leading questions discussed above. (MF 8, 12.) The preceding question had already made the respondents answer whether the juice was made from concentrate or not, without a dont know option. Every respondent had thus been forced to state whether the juice was made from concentrate before answering this question. By leading the respondents so aggressively with (a) his opening instruction; (b) his choice of a reading test; and (c) the leading questions that the respondents previously answered on the exact same survey page, Dr. Maronick rendered this second closed-end question a farce. B. Dr. Maronicks Survey Regarding The Tree to Bottle Video Suffers From Additional Fatal Defects. 1. Dr. Maronick Did Not Use A Control.

For the Tree to Bottle survey, Dr. Maronick did not use a control group. (MF 17.) He thus had no data to indicate what effect the video had on survey respondents, other than measuring their absolute beliefs using the leading approach discussed above. As Judge Scheindlin recently summarized this flaw in rejecting a survey: Not only did the Ford Survey fail to approximate marketplace conditions, it also suffers from another major flaw-it did not have an effective control. A survey designed to estimate likelihood of confusion must include a proper control. A control is designed to estimate the degree of background noise or error in the survey. Without a proper control, there is no benchmark for determining whether a likelihood of confusion estimate is significant or merely reflects flaws in the survey methodology THOIP v. The Walt Disney Company, 690 F. Supp. 2d 218, 240 (S.D.N.Y. 2010).

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2.

Because Dr. Maronick Was Completely Unaware That The Tree To Bottle Video Is Displayed On A Webpage, He Did Not Show Respondents That Context, Making His Survey Results Further Unreliable.

When designing and conducting his surveys, Dr. Maronick mistakenly believed that the Tree to Bottle video was a television commercial (MF 2, 44), despite the fact that Organic Juices own counterclaims clearly allege that it is displayed on Poms webpage. Setting aside how Dr. Maronick could possibly have believed this video resembled a television commercial, it is actually a video that is embedded on a webpage that explains what Tree to Bottle means: That Pom is unique in its vertical integration of the pomegranate juice production process from growing to bottling. (MF 40, 41.) In fact, the header on the webpage reads: Pom Truth Tree to Bottle, Pom controls the whole juicing process. (MF 40.) The short video does not purport to show every step of Poms production process, but rather that Pom is vertically integrated, unlike its competitors (such as Organic Juice, which imports adulterated pomegranate juice bottled by Elite Naturel, a Turkish company, which makes the juice from fruit that is grown by various independent Turkish farmers). The Tree to Bottle video is simply an obscure Internet video explaining this vertical integration. The webpage was accessed only 2,597 times between early 2008 (when the video was first displayed) and May 31, 2010. (MF 42.) Hundreds of thousands of consumers purchased Poms products during that time period. (MF 43.) Yet because Dr. Maronick never bothered to check how Poms video was presented to consumers before conducting his survey (he has no excuse for that, as Organic Juices Answer and Counterclaims explicitly alleges that the video is displayed on Poms website), he designed the survey without ever showing respondents the videos actual context: Q. And you never let the respondents to this survey decide whether thats the implied

claim after reading the entirety of this advertisement. A: Thats correct. And I thought that it was -- again, I thought it was a television video -

- a television ad. (MF 44.) Judge Scheindlin incisively explains why omitting explanatory context in this manner is a serious flaw for a consumer survey: Labels are not unnoticed by consumers; rather, they

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serve as important sources of information, including brand identification. Dr. Fords failure to use hang tags and neck labels clearly is a deviation from actual marketplace conditions. THOIP, 690 F. Supp. 2d at 239. C. The Court Should Find That Dr. Maronicks Surveys Are Inadmissible, And Grant Summary Judgment Accordingly.

Organic Juice bears the burden of proving its counterclaims with admissible survey evidence. See Section V(B), supra. As discussed above, Dr. Maronicks surveys are so deeply flawed and riddled with egregious errors that they are completely unreliable, and thus inadmissible. Further, the data that Dr. Maronick received in response to his open-ended questions, despite his best efforts to lead the respondents to focus on the from concentrate issue, falls far below the level required for statistical significance in a false advertising case, and thus is inadmissible as a matter of law. (MF 32-35); see Coors Brewing, 802 F. Supp. at 974 (survey response is is statistically insignificant because it falls far short of the 10% cut-off for statistical significance with respect to open-ended questions.). Finally, his testimony is likely to mislead the jury, because it is based on extremely deceptive survey data. Dr. Maronick made no genuine effort to obtain accurate survey results. Instead he designed his survey to give him the results he desired for his client, repeatedly departing from standard survey procedure because otherwise he couldnt get the respondents to give the responses he wanted. It would be highly prejudicial for Dr. Maronick to present testimony at trial based on survey methodology and data which is fatally defective and unreliable.8 Without such survey testimony, Organic Juice cannot carry its burden at trial, and summary judgment in Poms favor should therefore be granted. See S.C. Johnson, supra, 614 F. Supp. at

Moreover, it is important to recognize that the flaws and errors listed above are just a subset of many different severe defects in Dr. Maronicks survey, which Pom has narrowed for purposes of seeking summary judgment. Space constraints make it impossible to address the numerous other severe failings in Dr. Maronicks surveys, many of which are set forth in more detail in the expert report of Dr. Henry Ostberg. See Ostberg Decl., Exh. A. It would be distracting and prejudicial to Poms case for the trial to center on complicated defects of survey methodology; such legal and technical issues are not conducive to presentation in a jury trial.

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1319 (absent admissible survey evidence, [the plaintiffs] claim of false advertising fails both as a matter of fact and as a matter of law.); American Exp. Travel Related Services, Inc., supra, 776 F. Supp. at 792 (accord.) VII. CONCLUSION

For the reasons set forth above, the Court should issue an order granting summary judgment against the counterclaims set forth in Organic Juices Answer and Counterclaims.

Dated: New York, New York June 30, 2010 LOEB & LOEB LLP

By /s/ Christian D. Carbone Christian D. Carbone (CC-6502) 345 Park Avenue New York, NY 10154 ( 212) 407-4000 Attorneys for Plaintiff

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