NPK Response and Counterclaims

Page 1 - NPK, LLCS, OREGON GLOBAL DISTRIBUTION, INC.
S, RICHARD
ROWES, RENY TOWNSENDS, AND ORION TANGS ANSWER AND
AFFIRMATIVE DEFENSES TO YETI'S AND HEAGLES SECOND
AMENDED COMPLAINT AND COUNTERCLAIMS
Rene E. Rothauge, OSB #903712
ReneeRothauge@MHGM.com
Jeffrey M. Edelson, OSB #880407
JeffEdelson@MHGM.com
Steffan Alexander, OSB #130258
SteffanAlexander@MHGM.com
Chad M. Colton, OSB #065774
ChadColton@MHGM.com
MARKOWITZ, HERBOLD, GLADE
& MEHLHAF, P.C.
1211 SW Fifth Avenue, Suite 3000
Portland, OR 97204-3730
Tel: (503) 295-3085
Fax: (503) 323-9105

Attorneys for Defendants NPK, LLC and
Oregon Global Distribution, Inc.

Robert B. Miller, OSB #960068
bobmiller@kilmerlaw.com
KILMER VOORHEES & LAURICK PC
732 NW 19th Avenue
Portland, OR 97209
Tel: (503) 224-0055
Fax: (503) 222-5290

Attorneys for Defendants Orion Tang,
Richard Rowe, and Reny Townsend

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

YETI ENTERPRISES INCORPORATED,
an Oregon corporation, and ALEXANDER J.
HEAGLE

Plaintiffs/Counterclaim-Defendants,

vs.

NPK, LLC, f/k/a N.P.K. DISTRIBUTORS,
LLC, an Oregon limited liability company,
OREGON GLOBAL DISTRIBUTION,
INC., an Oregon corporation, RICHARD
ROWE, an individual, RENY TOWNSEND,
an individual, and ORION TANG, an
individual,

Defendants/Counterclaim-Plaintiffs.

CV No.: 3:13-cv-01203-ST

NPK, LLCS, OREGON GLOBAL
DISTRIBUTION, INC.S, RICHARD
ROWES, RENY TOWNSENDS, AND
ORION TANGS ANSWER AND
AFFIRMATIVE DEFENSES TO YETIS
AND HEAGLES SECOND AMENDED
COMPLAINT AND COUNTERCLAIMS

Case 3:13-cv-01203-ST Document 92 Filed 06/30/14 Page 1 of 90

Page 2 - NPK, LLCS, OREGON GLOBAL DISTRIBUTION, INC.S, RICHARD

NPK, LLC, f/k/a N.P.K. DISTRIBUTORS,
LLC, an Oregon limited liability company,
OREGON GLOBAL DISTRIBUTION,
INC., an Oregon corporation, RICHARD
ROWE, an individual, RENY TOWNSEND,
an individual, and ORION TANG, an
individual,

Counterclaim-Plaintiffs,

vs.

NICHOLAS JACKSON, an individual;
JESSICA LILGA, an individual;
FREQ WATER, INC., an Oregon corporation,

Additional Counterclaim-Defendants.

NPK, LLC (NPK), Oregon Global Distribution (OGD), Richard Rowe (Rowe),
Reny Townsend (Townsend), and Orion Tang (Tang), and collectively Defendants,
respond to Yeti Enterprises Incorporateds (Yetis) and Alexander J. Heagles (Heagle)
second amended complaint as follows:
ANSWER
I. PARTIES, JURISDICTION AND VENUE
1. Defendants admit that Yeti is a corporation incorporated under the laws of the
state of Oregon with its principal place of business in Medford, Oregon, and engages in the
business of manufacturing and selling plant washes. Defendants are without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations in paragraph 1
of the second amended complaint, and therefore deny them.
2. Defendants admit the allegations in paragraph 2 of the second amended complaint
for the purpose of jurisdiction only.
3. In response to the allegations in paragraph 3 of the second amended complaint,
defendants admit that NPK is an Oregon limited liability company with its principal place of

business in Medford, Oregon, and sells and distributes horticulture products. Defendants also
admit that Rowe, Townsend, Tang, and Nicholas Jackson (Jackson) co-founded NPK.
Defendants further admit that Rowe is NPKs President, Townsend is NPKs Senior Vice
President, and Tang is NPKs Vice President of Operations. Defendants deny all remaining
allegations in paragraph 3 of the second amended complaint.
defendants admit that OGD is an Oregon corporation with its principal place of business in
Medford, Oregon. Defendants also admit that Rowe, Townsend, and Tang co-founded OGD.
Defendants further admit that Rowe is OGDs President, Townsend is OGDs Senior Vice
President, and Tang is OGDs Vice President of Operations. Defendants deny all remaining
defendants admit that Rowe is a resident of Medford, Oregon. Defendants also admit that Rowe
is a co-founder and the President of NPK and OGD. Defendants deny all remaining allegations
in paragraph 5 of the second amended complaint.
defendants admit that Townsend is a resident of Medford, Oregon. Defendants also admit that
Townsend is a co-founder and the Senior Vice President of NPK and OGD. Defendants deny all
remaining allegations in paragraph 6 of the second amended complaint.
defendants admit that Tang is a resident of Medford, Oregon. Defendants also admit that Tang is
a co-founder and the Vice President of Operations of NPK and OGD. Defendants deny all
8. Defendants deny the allegations in paragraph 8 of the second amended complaint.
9. Defendants admit the allegations in paragraph 9 of the second amended complaint
for the purpose of jurisdiction only.

10. Defendants admit the allegations in paragraph 10 of the second amended
complaint for the purpose of venue only.
II. GENERAL ALLEGATIONS
11. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 11 of the second amended complaint, and therefore deny
them.
them.
them.
them.
defendants admit that Yeti and NPK entered into a distribution agreement dated November 11,
2010 (the Distribution Agreement), attached as exhibit A to the second amended complaint.
Defendants further state that the Distribution Agreement attached as exhibit A to the second
amended complaint speaks for itself. Defendants deny all remaining allegations in paragraph 15
of the complaint.
defendants admit that a tote is a plastic vessel that contains 260 gallons of liquid. Defendants
further state that the Distribution Agreement speaks for itself. Defendants deny all remaining
defendants state that the Distribution Agreement attached as exhibit A to the second amended

complaint speaks for itself. Defendants deny all remaining allegations in paragraph 17 of the
second amended complaint.
defendants state that the Distribution Agreement attached as exhibit A to the second amended
complaint speaks for itself. Defendants deny all remaining allegations in paragraph 18 of the
defendants admit that pursuant to the Distribution Agreement attached as exhibit A to the second
amended complaint, NPK bottled, labeled, marketed, and physically distributed three plant
washes: Mighty Wash, PM Wash, and Power Wash. Defendants deny all remaining
them.
defendants admit that NPK and Yeti met in February 2012 to discuss the parties ongoing
business activities. Defendants also admit that in February 2012, Yeti and NPK executed an
agreement titled Yeti Final Proposal, attached as exhibit A-12 to the second amended
complaint. Defendants further state that the Yeti Final Proposal speaks for itself. Defendants
deny all remaining allegations in paragraph 21 of the second amended complaint.
defendants state that the Yeti Final Proposal speaks for itself. Defendants are without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
in paragraph 22 of the second amended complaint, and therefore deny them.
defendants admit that the U.S. Patent and Trademark Office granted NPK a trademark for
Mighty Wash, U.S. Trademark Registration No. 4,121,193. Defendants further state that

U.S. Trademark Registration No. 4,121,193 and any associated application materials speak for
themselves. Defendants deny all remaining allegations in paragraph 23 of the second amended
complaint.
complaint.
defendants admit that on March 29, 2012, the U.S. Environmental Protection Agency (EPA)
issued a Stop Sale, Use, or Removal Order to NPK, which prohibited NPKs sale, use, or
distribution of Mighty Wash, PM Wash, and Power Wash (the Stop Sale Order),
attached as exhibit E to the second amended complaint. Defendants further state that the Stop
Sale Order attached as exhibit E to the second amended complaint speaks for itself. Defendants
defendants admit that on April 9, 2012, NPK emailed EPA regarding the Stop Sale Order.
Defendants further state that the email speaks for itself. Defendants deny all remaining
defendants admit that on April 9, 2012, EPA emailed NPK regarding the Stop Sale Order.
defendants admit that on April 9, 2012, EPA emailed NPK regarding the Stop Sale Order.

defendants admit that after EPA issued its Stop Sale Order, NPK changed its labels and
advertising for Mighty Wash, PM Wash, and Power Wash. Defendants further state that
the labels and advertising speak for themselves. Defendants also admit that EPA sent NPK a
letter regarding Authorization to Sell and Distribute Mighty Wash, PM Wash, and Power
Wash dated June 21, 2012 (the EPA Authorization Letter). A true and correct copy of EPA
Authorization Letter is attached to NPKs Answer as Exhibit 1. Defendants further state that
EPA Authorization Letter speaks for itself. Defendants deny all remaining allegations in
paragraph 29 of the second amended complaint.
defendants admit that after EPA issued its Stop Sale Order, NPK changed its labels and
advertising for Mighty Wash, PM Wash, and Power Wash. Defendants further state that
the labels and advertising speak for themselves. Defendants also admit that EPA sent NPK an
EPA Authorization Letter dated June 21, 2012, which is attached to NPKs Answer as Exhibit 1.
Defendants further state that EPA Authorization Letter speaks for itself. Defendants deny all
defendants admit that on March 29, 2012, EPA issued a Stop Sale Order, which prohibited
NPKs sale, use, or distribution of Mighty Wash, PM Wash, and Power Wash, attached as
exhibit E to the second amended complaint. Defendants further state that the Stop Sale Order
attached as exhibit E to the second amended complaint speaks for itself. Defendants deny all
remaining allegations in paragraph 31 of the complaint.
defendants admit that NPK applied to the U.S. Patent and Trademark Office for registration of
PM Wash, U.S. Trademark Serial No. 85782754. Defendants further state that U.S.

Trademark Serial No. 85782754 and any associated application materials speak for themselves.
Defendants deny all remaining allegations in paragraph 32 of the second amended complaint.
Power Wash, U.S. Trademark Registration No. 4,346,896. Defendants further state that U.S.
Trademark Registration No. 4,346,896 and any associated application materials speak for
complaint.
them.
35. Defendants deny the allegations in paragraph 35 of the second amended
complaint.
defendants admit that on January 2, 2013, Rowe and Tang had a meeting with Heagle.
Defendants also admit that Rowe provide Heagle a copy of EPA Authorization Letter dated
June 21, 2012. Defendants deny all remaining allegations in paragraph 36 of the second
amended complaint.
defendants admit that Stack and Multiply were not Yeti products. Defendants are without
defendants admit that at the January 2, 2013 meeting between Rowe, Tang, and Heagle, Rowe
and Tang did not have any knowledge of any customers confusing Stack and Multiply with
Yeti. Defendants are without knowledge or information sufficient to form a belief as to the truth

of the remaining allegations in paragraph 38 of the second amended complaint, and therefore
deny them.
defendants admit that NPK authorized placement of an advertisement titled From the Creators
of Mighty Wash, attached as exhibit D to the second amended complaint, in the December 2012
issue of Maximum Yield magazine. Defendants are without knowledge or information sufficient
to form a belief as to the truth of the remaining allegations in paragraph 39 of the second
amended complaint, and therefore deny them.
defendants admit that in February 2012, Yeti and NPK executed an agreement titled Yeti Final
Proposal, attached as exhibit A-12 to the second amended complaint. Defendants further state
that the Yeti Final Proposal speaks for itself. Defendants deny all remaining allegations in
defendants admit that on January 28, 2013, Yeti sent NPK a demand letter. A true and correct
copy of Yetis demand letter is attached to NPKs Answer as Exhibit 2. Defendants further state
that Yetis demand letter speaks for itself. Defendants deny all remaining allegations in
defendants admit that the U.S. Patent and Trademark Office granted NPK a trademark for the
Power Button mark U.S. Trademark Registration No. 4,400,010. Defendants further state that
complaint.
defendants admit that Yeti and NPK had a meeting on February 11, 2013, and at that meeting

Yeti and NPK attempted to resolve their pending business disputes. Defendants deny all
them.
defendants admit that on February 21, 2013, Townsend sent an email with an unsigned
attachment titled Settlement Agreement and Amendment to Distribution Agreement, attached
as exhibit G to the second amended complaint. Defendants further state that the email and its
attachment, attached as exhibit G to the second amended complaint, speak for themselves.
complaint.
complaint.
them.
complaint.
complaint.
complaint.
them.

them.
them.
them.
complaint.
complaint.
complaint.
complaint.
complaint.
defendants deny that NPK uses Yetis Marks as defined by Yeti. Defendants further deny the
defendants admit that NPK filed a complaint for tortious interference with contractual relations
against Yeti in Jackson County Circuit Court, Case No. 13CV01641, later stipulated to a
voluntarily dismissal without prejudice, and the Distribution Agreement attached as exhibit A to
the second amended complaint contains an exclusive venue provision for Multnomah County.

Defendants further state they are without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations in paragraph 62 of the second amended complaint, and
therefore deny them.
III. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
(By Yeti Against All Defendants)
Trademark Infringement and Unfair Competition 15 U.S.C. 1125(a)
defendants incorporate by reference each and every response set forth above.
complaint.
complaint.
defendants deny that NPK used Yetis Marks as defined by Yeti. Defendants are without
complaint.
complaint.
complaint.
complaint.

complaint.
complaint.
complaint.
SECOND CLAIM FOR RELIEF
False Advertising 15 U.S.C. 1125(a)
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.

complaint.
complaint.
THIRD CLAIM FOR RELIEF
Common Law Infringement and Unfair Competition
defendants deny that NPK unlawfully used any marks owned by Yeti. Defendants are without
contained in paragraph 86 of the second amended complaint, and therefore deny them.
defendants deny that NPK misappropriated any marks owned by Yeti. Defendants are without
contained in paragraph 86 of the second amended complaint, and therefore deny them.
complaint.
complaint.
complaint.
complaint.
complaint.

FOURTH CLAIM FOR RELIEF
(By Yeti NPK, Rowe, Townsend and Tang)
(Fraud Federal Trademark Registration)
(Count 1)
complaint.
complaint.
them.
complaint.
complaint.
(Count 2)
complaint.
complaint.

the truth of the allegations in paragraph 102 of the second amended complaint, and therefore
deny them.
complaint.
complaint.
(Count 3)
complaint.
complaint.
deny them.
complaint.
complaint.
(Count 4)
complaint.

complaint.
deny them.
complaint.
complaint.
FIFTH CLAIM FOR RELIEF
(By Yeti Against NPK, Rowe, Townsend and Tang)
(Common Law Fraud)
defendants admit that on March 29, 2012, EPA issued a Stop Sale Order to NPK, which
prohibited NPKs sale, use, or distribution of Mighty Wash, PM Wash, and Power Wash.
Defendants deny the remaining allegations in paragraph 118 of the second amended complaint.
complaint.
complaint.
complaint.
complaint.

SIXTH CLAIM FOR RELIEF
(By Yeti Against NPK)
(Breach of Contract)
(Count 1)
defendants admit that Yeti and NPK executed a Distribution Agreement dated November 11,
2010, attached as exhibit A to the second amended complaint. Defendants further state that the
Distribution Agreement attached as exhibit A to the second amended complaint speaks for itself.
complaint.
complaint.
complaint.
complaint.
(Count 2)

complaint.
complaint.
complaint.
complaint.
(Count 3)
complaint.
complaint.
complaint.
complaint.

(Count 4)
complaint.
complaint.
complaint.
complaint.
(Count 5)
(in the Alternative)
defendants admit that Yeti and NPK had a meeting on February 11, 2013, and at that meeting,
Yeti and NPK attempted to resolve their pending business disputes. Defendants deny all
complaint.

complaint.
complaint.
complaint.
complaint.
(Count 6)
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.

(Count 7)
complaint.
complaint.
complaint.
complaint.
complaint.
(Count 8)
complaint.
complaint.
complaint.
complaint.

complaint.
complaint.
(Count 9)
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
(Count 10)
complaint.

complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
SEVENTH CLAIM FOR RELIEF
(Breach of Implied Covenant of Good Faith and Fair Dealing)
Defendants deny all remaining allegations in paragraph 191 of the complaint.
complaint.

Distribution Agreement attached as exhibit A to the complaint speaks for itself. Defendants
complaint.
complaint.
complaint.
EIGHTH CLAIM FOR RELIEF
(Declaratory Judgment ORS Chapter 28)
198. Defendants admit that there is a controversy between the parties. Defendants
deny all remaining allegations contained in paragraph 198 of the second amended complaint.
199. Defendants admit the allegations in paragraph 199 of the second amended
complaint for the purpose of venue only.
complaint.
NINTH CLAIM FOR RELIEF
Cybersquatting 15 U.S.C. 1125(d)

deny them.
complaint.
complaint.
complaint.
complaint.
defendants admit that the 40 internet domain names listed in paragraph 204 of the second
amended complaint do not contain the legal name of any defendant. Defendants deny all
complaint.
deny them.
complaint.
complaint.
complaint.

complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
TENTH CLAIM FOR RELIEF
Declaratory Judgment of Non-infringement

defendants admit that there is a controversy between the parties. Defendants deny all remaining
defendants admit that there is a controversy between the parties. Defendants deny all remaining
defendants state that the allegations in count II of the thirteenth claim for relief of defendants
amended counterclaims speak for themselves. Defendants deny all remaining allegations in
defendants state that the allegations in count II of the thirteenth claim for relief of defendants
amended counterclaims speak for themselves. Defendants deny all remaining allegations in
complaint.
complaint.
deny them.
complaint.

ELEVENTH CLAIM FOR RELIEF
Declaratory Judgment of Invalidity of Federal Trademark Registration
(Count 1 U.S. Reg. No. 4,121,193)
complaint.
complaint.
complaint.
complaint.
complaint.

(Count 2 U.S. Reg. No. 4,241,438)
complaint.
complaint.
complaint.
complaint.
complaint.
(Count 3 U.S. Reg. No. 4,346,896)
Power Wash, U.S. Trademark Registration No. 4,346,896. Defendants further state that

complaint.
complaint.
complaint.
Power Wash, U.S. Trademark Registration No. 4,346,896. Defendants further state that
complaint.
complaint.
(Count 4 U.S. Reg. No. 4,400,010)
complaint.
complaint.

complaint.
complaint.
complaint.
TWELFTH CLAIM FOR RELIEF
(By Yeti and Heagle Against NPK, Rowe and Tang)
Breach of Confidentiality and Non-Disclosure Contract
defendants admit that Heagle and Rowe executed a confidentiality contract dated September 9,
2010. Defendants also admit that Heagle and Tang executed a confidentiality contract dated
September 9, 2010. Defendants further admit that Yeti and NPK executed a confidentiality
agreement dated January 8, 2013. Defendants further state that the confidentiality contracts and
the confidentiality agreement speak for themselves. Defendants deny all remaining allegations
defendants admit that Heagle and Rowe executed a confidentiality contract dated September 9,
2010. Defendants also admit that Heagle and Tang executed a confidentiality contract dated
September 9, 2010. Defendants further admit that Yeti and NPK executed a confidentiality
agreement dated January 8, 2013. Defendants further state that the confidentiality contracts and

the confidentiality agreement speak for themselves. Defendants deny all remaining allegations
complaint.
complaint.
complaint.
complaint.
complaint.
THIRTEENTH CLAIM FOR RELIEF
(By Yeti and Heagle Against All Defendants)
Misappropriation of Trade Secrets ORS 646.461
complaint.
complaint.
complaint.
complaint.
complaint.

complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
276. Except as specifically admitted, defendants deny each and every allegation in the
AFFIRMATIVE AND ADDITIONAL DEFENSES
277. Defendants assert the following affirmative defenses, without assuming any
burden that would otherwise rest with plaintiff.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)

278. Plaintiffs first amended complaint and the purported causes of action set forth
therein fail to state a claim against defendants upon which relief can be granted.
///
///
///

SECOND AFFIRMATIVE DEFENSE
(Failure to Allege Fraud with Particularity)

279. Some or all of plaintiffs claims fail to allege fraud with particularity.
THIRD AFFIRMATIVE DEFENSE
(Laches)

280. Some or all of plaintiffs claims are barred by the doctrine of laches. Plaintiff
waited an unreasonable length of time to bring its trademark infringement claims. Plaintiff was
aware that NPK continuously used the trademarks for Mighty Wash, PM Wash, Power
Wash, the Power Button, and the Frequency Logo (NPKs Marks) for more than two
years. Plaintiff failed to inform NPK of, or enforce, its purported ownership of NPKs Marks.
Plaintiffs delay in bringing its trademark claims prejudiced NPK because of its substantial
investment in promotion and advertising of NPKs Marks.
FOURTH AFFIRMATIVE DEFENSE
(Estoppel, Waiver, and Acquiescence)

281. Some or all of plaintiffs claims are barred by the doctrines of estoppel, waiver,
and acquiescence. NPKs Marks had been in open, continuous, and extensive use by NPK for
more than two years prior to the filing of the first amended complaint, to the knowledge of
plaintiff, with no attempt on plaintiffs part to obtain a judicial determination of its alleged rights
with respect to NPKs use of its marks. NPK has relied to its detriment upon plaintiffs
acquiescence and delay, continued use of its marks, and invested substantial sums in promotion
and advertising of said marks. For these reasons, plaintiff is estopped to allege that any acts of
defendants now constitute an infringement of plaintiffs alleged trademark rights.
FIFTH AFFIRMATIVE DEFENSE
(Abandonment)

282. Some or all of plaintiffs claims are barred because plaintiff has abandoned rights
in the marks by either discontinuing its use of the marks with express or implied intent not to
continue use, or failing to exercise adequate quality control over the goods sold under the
trademarks.

SIXTH AFFIRMATIVE DEFENSE
(Plaintiff is Not the True Owner of the Marks)

283. Some or all of plaintiffs claims are barred because plaintiff is not the true owner
of NPKs Marks by virtue of either NPK being the first to use its marks in the marketplace,
consumers associating NPKs Marks with NPK, NPKs registration of the Mighty Wash,
Power Wash, and Power Button marks with the U.S. Patent and Trademark Office, or
agreement between NPK and Yeti.
SEVENTH AFFIRMATIVE DEFENSE
(Continuous Prior Use)

284. Some or all of plaintiffs claims are barred by the doctrine of continuous prior
use.
EIGHTH AFFIRMATIVE DEFENSE
(Good Faith)

285. Some or all of plaintiffs state law claims are barred by the doctrine of good faith.
NINTH AFFIRMATIVE DEFENSE
(Unclean Hands)

286. Some or all of plaintiffs claims are barred by the doctrine of unclean hands
because plaintiff engaged in conduct including, but not limited to, committing or conspiring to
commit tortious conduct against defendants, knowingly filing an application for registration of
the mark That Stuff Mighty Wash with the U.S. Patent and Trademark Office, Serial No.
85806351, after NPK already registered its marks for Mighty Wash, refusing to supply NPK
with plant washes and adding obligations to NPK that the parties never agreed to or bargained
for in order for Yeti to supply NPK with plant washes pursuant to the Yeti-NPK 10-year
Distribution Agreement and its amendments.
TENTH AFFIRMATIVE DEFENSE
(Statute of Limitations)

287. Some or all of plaintiffs claims are barred by statute of limitations.

ELEVENTH AFFIRMATIVE DEFENSE
(Repudiation)

288. Some or all of plaintiffs claims are barred because plaintiff repudiated the
Distribution Agreement and its amendments, the purported February 11 Agreement, and/or any
purported confidentiality contracts or agreements.
TWELFTH AFFIRMATIVE DEFENSE
(Payment)

289. Some or all of plaintiffs claims are barred by the doctrine of payment.
THIRTEENTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)

290. Some or all of plaintiffs claims are barred by the doctrine of accord and
satisfaction.
FOURTEENTH AFFIRMATIVE DEFENSE
(Waiver)

291. Some or all of plaintiffs contract-related claims are barred by the doctrine of
waiver.
FIFTEENTH AFFIRMATIVE DEFENSE
(Fraudulent Inducement)

292. Some or all of plaintiffs contract-related claims are barred because of plaintiffs
fraudulent inducement.
SIXTEENTH AFFIRMATIVE DEFENSE
(Ambiguity)

293. Some or all of plaintiffs contract-related claims are barred because any purported
contract terms were too ambiguous for the contract to be enforceable.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Mistake)

294. Some or all of plaintiffs claims are barred by the doctrine of mistake.

EIGHTEENTH AFFIRMATIVE DEFENSE
(Commercial Impossibility or Impracticability)

295. Some or all of plaintiffs claims are barred by the doctrine of commercial
impossibility or impracticability.
NINETEENTH AFFIRMATIVE DEFENSE
(Unconscionable Contract or Terms)

296. Some or all of plaintiffs claims are barred because of an unconscionable contract
or unconscionable contract terms.
TWENTIETH AFFIRMATIVE DEFENSE
(Failure of Consideration)

297. Some or all of plaintiffs claims are barred by the doctrine of failure of
consideration because plaintiff refused to supply contractual goods to NPK.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Immaterial Breach)

298. Some or all of plaintiffs claims are barred because any alleged breach of contract
was an immaterial breach.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Sufficiency of Notice)

299. Some or all of plaintiffs claims are barred because of insufficient notice of any
alleged violations or breaches.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Failure to Mitigate)

300. Some or all of plaintiffs claims are barred because plaintiff failed to mitigate its
damages.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Fair Use)

301. Some or all of plaintiffs claims are barred by the doctrine of fair use.

TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Reasonable Belief)

302. Some or all of plaintiffs claims are barred because defendants believed and had
reasonable grounds to believe that any alleged use of a domain name was a fair use or otherwise
lawful.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Preemption)

303. Some or all of plaintiffs claims are barred by the doctrine of preemption.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Contributory or Comparative Fault)

304. Some or all of plaintiffs claims are barred by the doctrines of contributory of
comparative fault.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Additional Defenses)

305. Defendants may have additional defenses that cannot now be articulated due to
the generality of plaintiffs pleadings and the fact that discovery is ongoing. Accordingly,
defendants expressly reserve the right to supplement the foregoing and to plead any and all
additional defenses available under the law.
DEMAND FOR JURY TRIAL

306. Defendants demand a jury trial in this action.
WHEREFORE, having fully answered plaintiffs second amended complaint and having
asserted affirmative and additional defenses, defendants respectfully pray for judgment as
follows:
A. That plaintiffs claims against defendants be dismissed in their entirety and with
prejudice;
B. That plaintiffs take nothing;
C. That the Court enter judgment in defendants favor;

D. That defendants recover reasonable attorney fees, expenses, and costs; and
E. For any other just relief.
COUNTERCLAIM
NPK, Rowe, Townsend, and Tang (collectively Counterclaim-Plaintiffs) allege as
follows:
INTRODUCTION
1. Yeti and Counterclaim-Defendants collaborated in a plot to destroy NPK. Their
plot was recently exposed in Nicholas Jacksons prison telephone call recordings. While
incarcerated for 14 months on battery and assault charges unrelated to this case, Jackson engaged
in more than one thousand hours of telephone calls that were recorded by the Oregon
Department of Corrections. These recordings reveal a conspiracy to destroy NPK, which
involved NPKs supplier (Yeti), one of NPKs members (Nicholas Jackson), a former NPK
employee (Jessica Lilga), and others to be named later in this action.
THE PARTIES
Counterclaim-Plaintiffs
2. NPK is a limited liability company incorporated under the laws of Oregon with its
principal place of business in Medford, Oregon. NPK is engaged in the business of
manufacturing, distributing, and marketing garden supplies and materials.
3. Rowe is an individual who resides in Medford, Oregon, and is NPKs President.
4. Townsend is an individual who resides in Medford, Oregon, and is NPKs Senior
Vice President.
5. Tang is an individual who resides in Medford, Oregon, and is NPKs Vice
President of Operations.
Counterclaim-Defendants
6. Yeti is a corporation incorporated under the laws of Oregon with its principal
place of business in Central Point, Oregon.

7. Yeti is engaged in the business of manufacturing and selling plant washes which
are used by consumers to prevent pest infestation and mold growth, and to clean plant parts.
8. Alexander J. Heagle (Heagle) is an individual who, at all relevant times, resided
in Oregon. Heagle is the president and majority owner of Yeti. At all relevant times, Heagle
was acting either in his individual capacity or as an agent of Yeti. Further discovery will inform
when he was acting as an individual and/or as a Yeti officer.
9. Nicholas Jackson (Jackson) is an individual who, at all relevant times, resided
in Oregon. Jackson is a member of NPK and is facing expulsion from NPK pursuant to
consolidated pending Jackson County Circuit Court Case Nos. 13CV07673 and 13CV04521.
10. Jessica Lilga (Lilga) is an individual who, at all relevant times, resided in
Oregon. Lilga is a former employee of NPK.
11. Freq Water, Inc. is a corporation incorporated under the laws of Oregon with its
principal place of business in Grants Pass, Oregon.
12. Freq Water, Inc. is engaged in the business of manufacturing and selling plant
washes. These are used by consumers to prevent pest infestation, mold growth, and to clean
plant parts.
13. Heagle, Jackson, and Lilga are at times collectively referred to as Counterclaim-
Defendants.
JURISDICTION AND VENUE
14. This Court has original jurisdiction over Yetis and NPKs trademark claims
under 28 U.S.C. 1331, 1338, and 15 U.S.C. 1120, 1125, the federal declaratory judgment
claims under 28 U.S.C. 2201 and 2202, and 15 U.S.C. 1116(a), and supplemental
jurisdiction over NPKs remaining state law claims pursuant to 28 U.S.C. 1367.
15. Venue is proper in the United States District Court for the District of Oregon
pursuant to 28 U.S.C. 1391 because Counterclaim-Defendants reside in the State of Oregon
and sell products in the State of Oregon. Venue is also proper in the Portland Division pursuant

to LR 3-2 because the contract at issue contains an exclusive venue provision for Multnomah
County.
GENERAL ALLEGATIONS

I. The creation of the products and the Yeti-NPK 10-year Distribution Agreement.
16. Yeti manufactured liquid for three plant washes using a formula and process
which it claims includes electronic frequency imprinting. In or around 2009, Yeti began
selling its liquid for the three plant washes under the names That Stuff Plant Wash SpiderMite
Control, That Stuff Spidermite Destroyer, and That Stuff Molds and Mildew Control
Formula.
17. In or around 2009, NPKs members operated a garden store called In and Out
Gardens.
18. Yeti and NPKs members believed there was a budding market for plant wash
products, but that Yetis plant wash sales were not reaching their potential. At that time, Yeti
was primarily a manufacturing company. As a result, Yeti did not have the business, marketing,
or distribution capabilities that were necessary to significantly increase Yetis plant wash sales.
19. NPKs members, however, had business, marketing, and distribution experience.
Accordingly, Yeti agreed to have NPK create a new name, label, brand, and design for the liquid
manufactured by Yeti. Yeti also agreed to have NPK use NPKs experience and contacts to
market and distribute Yetis liquid. In return, Yeti agreed to supply the liquid it manufactured
exclusively to NPK for distribution and sale for a 10-year term.
20. In the fall of 2010, Yeti and NPK memorialized their agreements, in part, by a
series of written agreements. Pursuant to the agreements, NPK designed and created three new
plant wash product brands: Mighty Wash, Power Wash, and PM Wash (collectively
Mighty Wash).
21. On November 11, 2010, NPK and Yeti executed a 10-year distribution agreement
for NPK to bottle, label, market, and physically distribute the liquid that Yeti manufactured and
supplied to NPK. A copy of the Distribution Agreement is attached as Exhibit A to Yetis

second amended complaint, and is incorporated by reference (hereinafter the Distribution
Agreement).
22. Pursuant to the Distribution Agreement, NPK worked to market and sell the liquid
to consumers in the marketplace. As the result of NPKs efforts, NPK introduced the liquid to
new customers such as Sunlight and Green Planet, expanded the distribution of the liquid, and
increased sales of the liquid.
II. The plan to destroy NPK and sell liquid directly to consumers.
23. After doing business with NPK, Heagle discovered that he and Yeti could make
more profit by cutting NPK out of the distribution chain and selling the liquid directly to
Sunlight, Green Planet, and other consumers in the marketplace. Yeti, however, was unable to
do so because of its obligation to provide NPK with the exclusive right to distribute Yetis liquid.
Heagle, along with others, then hatched a plan to destroy NPK and form a new distribution
company that could work with Yeti to sell the liquid directly to consumers.
24. Heagle learned that a schism had developed between NPK and one of its owners
and executives, Jackson, who was serving a prison sentence for assault and battery. Specifically,
Jackson was angry about NPKs failure to pay him wages while he served his prison term,
NPKs new strategic initiatives to diversify NPKs product lines, and NPKs treatment of his
girlfriend, Lilga, who worked as an employee of NPK.
25. Heagle then worked to use this schism in NPKs internal management to convince
Jackson that he and his girlfriend Lilga should join Yeti and a new competing plant wash
distribution business that Heagle was forming and that would eventually be called Freq Water,
Inc.
26. During a recorded telephone call on October 14, 2012, Heagle laid out the
framework for the plan and recruited Jackson to join Yeti and Freq Water. Heagle explained to
Jackson, And what my contingency plan is, Nick, is that I would like to run an in-house
distributor, and I would like you to run that whole end of it. Heagle went on to offer Jackson

10 shares of Yeti as a bonus sign on. Jackson agreed to join, stating, consider it done my
friend . . . youve got me 110%.
27. During that same telephone call, Heagle and Jackson plotted to recruit Lilga to
their enterprise. Heagle explained, Jessica [Lilga] is coming over tonight and we are going to
talk about the same thing. . . . I talked to Jessica [Lilga] this morning and told her what we need
her to do is keep things nice and smooth, keep your ears open and be a mole for us. Jackson
responded yeah exactly. At the time of this conversation, Lilga was still an NPK employee.
Their plans were also documented in correspondence between Heagle and Jackson.
28. Pursuant to their plan, Yeti and Heagle recruited Lilga to use her position as an
NPK employee to steal NPKs confidential and proprietary business information, and then
become a Yeti employee and assist in the formation of Freq Water.
29. The plan required funding and a sound legal strategy. For funding Yeti, Heagle,
Jackson, and Lilga developed a relationship with Dennis Hunter, a millionaire and successful
businessman from California who wanted to expand his business enterprise into plant washes.
As the plan unfolded, Mr. Hunter also used his attorney Elizabeth Lehrer to relay strategic
objectives to the group and to the attorneys that Yeti later hired to file lawsuits against NPK.
Those lawsuits were designed to acquire NPK information that Yeti could not simply acquire by
theft.
A. The Plan, Part One: Get out of the Yeti-NPK 10-year Distribution
Agreement.
30. In order to distribute the liquid directly to consumers, Yeti needed to get out of
the 10-year Distribution Agreement with NPK. Accordingly, and as Heagle explained to
Jackson and Lilga during a telephone call, Heagle had sought legal advice from a very good
attorney, who specializes in breaking down corporations and breaking down contracts . . . his
specialty is breaking corporate [ve]ils.
31. Yeti, Heagle, Jackson, and Lilga then formed a plan to force NPK to accept
onerous contractual modifications, or Yeti would declare NPK to be in breach and terminate the

Distribution Agreement. For example, Yeti intended to demand systematic increases in the
prices of its liquid, while simultaneously shortening NPKs payment schedule from 45 to 30
days. In a series of recorded telephone conversations, Heagle, Jackson, and Lilga discussed their
plan:
a. On October 19, 2012, Heagle told Jackson that after the first of the year,
he would throw enough contract changes at NPK that theyre not going to want to go
forward and, if they dont agree with what I put out then Im going to consider the
contract broke, and let them know that it is broke.
b. On October 27, 2012, Lilga revealed her approval with the plot to get out
of the Distribution Agreement, I think Jim [Heagle] has a pretty solid plan. He
definitely wants to wait till the end of the year . . . . He wants to give them terms that are
really difficult. And he thinks that they will accept them first, and then coming along
three to, you know, three, four months when they cannot make those goals that he set,
hes going to make it so difficult that theyre going to have to drop him.
c. On November 1, 2012, Heagle told Jackson that he would maintain the
price of products with NPK for the first quarter of the year, but [i]n April it goes up.
And theres not a damn thing [NPK] could do about it. Then it goes up again in July.
Then it goes up again in September, as it will every quarter next year.
d. On November 14, 2012, Heagle reaffirmed to Jackson that the hammer is
going to come down on [NPK] in July . . . because thats when they will finally have me
all paid off on the Sauce.
e. On December 1, 2012, Heagle told Jackson the price increases were
really going to piss [NPK] off when you get out and they find out youre working for
me. . . . And its really going to piss them off in July when youre sitting there in that
meeting with me and I telling them Nicks taking over this account.

32. As the beginning of 2013 approached, Heagle became more emboldened about
the plot to get out of the Distribution Agreement. During another series of recorded telephone
calls, Heagle and Jackson discussed the following:
a. On December 15, 2012, Heagle confided in Jackson that, I think youre
100 percent right. We need to disembark from NPK totally. . . . I want to try to put it
together with Sunlight . . . like you were talking . . . [a]nd, uh, without letting NPK know
at all. Later in that same conversation, Heagle professed to Jackson that, [A]s far as
Im concerned you can start putting that all together Ill drop NPK when everybody says
its time to drop . . . . Ill walk in and say goodbye.
b. On December 17, 2012, Heagle told Jackson that his attorney specializes
in breaking contracts.
c. On December 19, 2012, Heagle told Jackson, [I]f we can get what we can
out of them [NPK], then time our execution. . . . Get . . . this registry . . . them either
paying me in advance or 15 days out at the most. . . . And then once thats done, then
I can make any move I want, anytime I want . . . my attorney told me . . . if you want,
Jim, he says, just go up to them and tell them you want $10 a gallon or, you know, and 18
on the other two. And Ill send them a letter stating that and theyll have so many days to
comply or not. And if they dont comply, theyre history . . . thats hes going to just
get rid of these guys for me, dude . . . [s]o and Im willing to do that, but I think we
should get more ducks in a row before I make that move.
d. On December 19, 2012, Heagle further explained to Jackson that, Im
going to start doing small demands at a time. . . . And hopefully by April to May or
somewhere in there that were breaking away. . . . And my first demands are going to be
looking at all the [E]PA s**t, which Ive already demanded. . . . And my second one is to
get paid 15 days out from now on . . . . And then me and Rich are supposed to meet
every month, the last Thursday of every month . . . And one of those Thursdays every

one of those Thursdays, Im going to make a different different demand. Jackson
agreed, later responding, Oh yeah. Oh yeah. The skys the limit, man, like I told you.
33. On April 29, 2013, in accordance with Heagle, Jackson, and Lilgas plan, Yeti
increased its price for supplying Yetis liquid to NPK by at least 20%, and immediately
shortened the due date for NPKs payment of invoices from 45 days to 30 days.
34. On May 15, 2013, Yeti refused to supply liquid to fill NPKs orders for liquid
manufactured by Yeti unless NPK immediately agreed to Yetis price increases, among other
demands.
35. On June 18, 2013, Yeti terminated the Distribution Agreement.
B. The Plan, Part Two: End the NPK-Sunlight exclusive contractual and
business relationship.
36. In addition to terminating the Distribution Agreement, Yeti, Heagle, Jackson, and
Lilga also created a plot to destroy the relationship between NPK and Sunlight, and then sell
Yetis liquid directly to Sunlight.
37. Specifically, Yeti, Heagle, Jackson, and Lilga plotted to cut off NPKs supply of
liquid, thereby causing NPK to breach its contract to fill Sunlights orders for Yetis liquid. In
an October 19, 2012 recorded telephone conversation between Heagle and Jackson, Heagle
explained that another part of my plan is if theyre giving contract to Sunlight, and Im going to
go ahead and let them do that contract. Because come December end of December, first of
January, they lose contract with me and they [can] no longer supply to Sunlight. Whats going to
happen to them? Jackson replied, Theyre going to get sued. Heagle agreed, Thats right
theyre going to get sued . . . . The next day, Jackson relayed the same scheme to Lilga, like
Jim [Heagle] said yesterday, if they [NPK] void contract with Sunlight, let them go ahead and
sign a contract with Sunlight. If they f**k up and all of a sudden Jim pulls his stuff and they
cant deliver product, they could be sued up and down. Even with their shield businesses, they
can be sued, sued, sued.

38. Under their plan, Yeti would then offer to directly fill Sunlights need for Yetis
liquid. Yeti would further report to Sunlight that it had never given NPK the exclusive right to
distribute liquid manufactured by Yeti.
39. During a series of recorded phone calls, Heagle, Jackson, and Lilga worked to
refine and advance their plan by discussing the following:
a. On December 13, 2012, Heagle admitted to Jackson that, Even though
I gave them [NPK] permission to go to Sunlight and give Sunlight exclusive, it was not
written down nowhere . . . And nobody signed nothing. . . . Jackson replied, [t]hats
perfect man. Heagle continued So that means it didnt happen . . . no matter how many
people [were] standing there and listened to me say that, okay you can have exclusive for
Sunlight, he [Heagles attorney] says it doesnt matter, it didnt happen unless its on
paper.
b. On December 13, 2012, Jackson foreshadowed the benefits of eliminating
NPK from the distribution chain:
I think that we should f**king distribute straight to
Sunlight. If we were going to do that there would be a
better margin for us and wed be eliminating those
jack**ses. . . . those guys, they dont deserve your product,
one, but I think you should wait until after the first of the
year when you have a registered pesticide to detach from
them fully. . . . Ive got a good route that we can go. And
I can have, you know, [Lilga] be facilitating it. And we
can, if we choose to drop those guys, and I think that we
should once that they have a registered pesticide, because
its your product. . . . And then were in the safe, we
should register the PM Wash . . ., and then Im ready to
blow it up. We can take all those accounts that were
getting it and it wouldnt even skip a beat. Not even a
month . . . wed be making a better market for Yeti dealing
with these guys, and not having NPK . . . in the middle of it
all. . . . We can make more for Yeti and everybody
included there by f**king detaching from them. Because
Im the one who made all those f**king accounts. F**k
those guys for capitalizing off of it. . . .


c. On January 8, 2013, Heagle told Jackson that I think Ill have my
attorney send Sunlight a letter letting Sunlight know that NPK has never had exclusive
with, uh, Yeti, and never had the right to give you [Sunlight] exclusive.
40. Pursuant to the plan, on January 28, 2013, Yeti stopped supplying liquid to NPK
for a period of time.
41. Pursuant to the plan, on January 28, 2013, Yeti and/or Heagle sent Sunlight a
letter stating that, Yeti will no longer be working through NPK, and will work directly with
Sunlight.
42. On January 30, 2013, in a recorded telephone conversation with Jackson, Heagle
reassured Jackson that NPKs inability to get the product from me anymore for Sunlight is a
breach of contract. Heagle further confirmed that although he had given NPK the exclusive
right to distribute Yetis liquid, NPK would be unable to prove that fact. As Heagle explained,
And I told my attorneys that I told these guys [NPK] that they can have exclusive for
Sunlight . . . And he says, did you sign anything? I said, no. And he says, dont worry about it
because they havent done it. Its not there. Unless you signed it, you know, no matter what
comes out of your mouth, in the court of law, its hearsay. In the court of law, what is signed or
what is not signed is what matters.
43. In addition, and in conjunction with the scheme to end the NPK-Sunlight
exclusive contractual and business relationship, upon information and belief, Jackson, Heagle,
and/or Lilga arranged for Green Planet to place a large order to deplete NPKs inventory and
cripple NPKs ability to fill Sunlights orders.
C. The Plan, Part Three: Destroy NPKs reputation and goodwill.
44. As part of the plan to eliminate NPK from the distribution chain and allow Yeti
and Freq Water to distribute Yetis liquid directly to consumers, Yeti, Heagle, Jackson, and Lilga
also plotted to destroy NPKs reputation and goodwill.
45. Pursuant to their plan, Jackson falsely represented to third parties that NPK would
be shut down by the Environmental Protection Agency (EPA), the Internal Revenue Service

(IRS), Oregons Department of Environmental Quality (DEQ), and Oregons Occupational
Safety and Health Division (OSHA).
46. Upon information and belief, Yeti, by and through Heagle in his individual and
corporate capacity, directly or indirectly, contacted some of those agencies to report NPK. On
June 11, 2013 in a recorded telephone conversation, Heagle recapped for Jackson that his agents
called OSHA. They called Medford Water District . . . OSHA took the reports. DEQs got a
hotline that you call . . . [b]ut they didnt leave no message. I says, [w]ell, you gotta leave a
message, dude.
47. In addition, in a recorded telephone conversation on July 9, 2013, Jackson
planned to have EPA issue a Stop Sale Order to NPK by associating NPKs Mighty Wash labels
with a Yeti label that did not comply with EPA regulations, and then put the combined label into
the marketplace. Jackson hoped that NPK would lose its revenue stream because it could not sell
Mighty Wash in the marketplace. Once EPA shut down NPK, Yeti, Jackson, and Lilga could
then sell their competitive products to Sunlight, Green Planet, and others in the marketplace
without any opposition.
48. Upon information and belief, Yeti, by and through Heagle acting in his individual
and corporate capacity, planned to disseminate false or misleading blog postings about Mighty
Wash in the marketplace. On November 1, 2013 in a recorded telephone conversation, Heagle
told Jackson, Id like to have somebody that has no contacts with any of us get on the computer
and put in a f**king blog about, Anybody getting black spots in their Mighty Wash? . . . [a]nd
start getting people to reply. Because a lot of people will just say . . . I cant take it back
tonight, so Ill screen the mold out and use it.
D. The Plan, Part Four: Destroy NPK by bombarding it with lawsuits.
49. As part of their plan, Yeti, Jackson, and Lilga bombarded NPK and its members
with lawsuits. In a January 28, 2013 recorded telephone conversation with a representative of
NPKs retail distributor, Jackson boasted that Im going to take them to court anyhow. So
theyre going to get bombarded from a couple different angles. . . . Later that week on

February 1, 2013, in another recorded telephone conversation with the same representative,
Jackson said, [w]ere going to be hitting them [NPK] with a triple lawsuit.
50. Upon information and belief, Jackson and Heagle planned to use the court system
to take Mighty Wash away from NPK so Yeti could sell its liquid as Mighty Wash without
having to pay the costs to market, promote, advertise, research, or develop it as a new product or
new brand.
51. Upon information and belief, Jackson and Heagle also planned to use the
discovery process to obtain, among other things, NPKs financials, bank statements, labels,
advertisements, and box designs so they could use NPKs records to help Yeti establish its
competing distribution business. In addition, upon information and belief, Jackson and Heagle
would obtain NPKs financial records for their ulterior motive of reporting NPK to the IRS in an
attempt to shut NPK down.
52. As Yeti, Jackson, and Lilga moved forward with their plan to destroy NPK by, in
part, directly distributing Yetis liquid through their own competing distribution company,
Heagle explained to Jackson during a January 30, 2013 telephone call, that he was not
interested in switching labels, and that [t]hey [NPK] cant stop me from using that Power
Button.
53. On February 8, 2013 in a recorded telephone call, Heagle and Jackson discussed
how expensive it would be if Yeti had to create and market a new label before they could sell
Yetis liquid through their competing distribution business. In that same conversation, Heagle
admitted that [t]he reason why I put those trademarks off to my attorney was to make sure that
we could use that label.
E. The Plan, Part Five: Distribute Mighty Wash directly to Sunlight,
Green Planet, and others in the marketplace.
54. Since the fall of 2012, Yeti, Jackson, and Lilga have been setting up exclusive
contractual or business relationships with Sunlight, Green Planet, and others in the marketplace
to directly distribute liquid manufactured by Yeti. On October 28, 2012 in a recorded telephone

call with Jackson, Heagle confirmed to Jackson that, I got my game plan all figured out. . . . Its
still Nicks [Jackson] [product], Nicks [Jackson] still in, Jessies [Lilga] got his back. . . . What
I plan on doing is going in-house distributor with Yeti and I plan on Nick running that whole
department. On December 13, 2012 in a recorded telephone conversation between Jackson and
Lilga, Jackson updated Lilga, I think we should cut them out because . . . we can go straight to
Sunlight. We can go straight to Green Planet. We could increase our margins and cut out this
middleman bulls**t. . . .
55. As Yeti, Jackson, and Lilgas plan to cut NPK out of the distribution chain
progressed, Heagle reiterated to Jackson that, Im going to let them [Sunlight] know right off
the bat that, you, Nick [Jackson], are running the whole distribution end of Yeti Enterprises.
That you are now a Yeti you work for Yeti . . . . I mean, you run that whole department. . . .
And that all contact is to be made between you and Jesse [Lilga] for everything that needs to be
done. in a recorded telephone conversation on January 20, 2013. Jackson agreed that
arrangement was perfect.
56. Upon information and belief, Yeti provided, or offered to provide, Jackson and
Lilga shares in Yeti and/or Freq Water, Inc. so that they would have ownership in their
competing distribution business.
57. Upon information and belief, Yeti also directly or indirectly paid, or offered to
pay, Jackson and Lilga a salary, commission, and/or royalties for their employment in their
competing distribution business.
58. To a certain extent, Jackson, Heagle, and Lilgas plan to cut NPK out of the
distribution chain for liquid manufactured by Yeti and distribute it directly to others in the
marketplace came to fruition.
59. Upon information and belief, Yeti and/or Counterclaim-Defendants currently
manufacture and distribute the same or similar liquid that Yeti manufactured and exclusively
supplied to NPK directly to Freq Water, Liquid Science Development, and/or Green Planet,
which then distributes the liquid under the labels Mega Wash, White Wash, and Freq Wash, to

Left Coast Wholesale, aka Geopot, which then distributes Mega Wash, White Wash, and Freq
Wash in the marketplace.
60. Upon information and belief, Jackson and Lilga further assisted their competing
distribution business by directly or indirectly providing Yeti with NPKs confidential and
propriety records including, among other records, NPKs customer files, NPKs customer contact
information, NPKs customer list, NPKs corporate minutes, an NPK advertisement featuring a
new NPK product line, and NPKs exclusive distribution contracts with Sunlight.
FIRST CLAIM FOR RELIEF
(Fraudulent Misrepresentation Concealment, Count I NPK v. Yeti and
Counterclaim-Defendants Heagle, Jackson, and Lilga)

61. NPK realleges and incorporates all previous paragraphs of the counterclaim as if
fully stated herein.
62. Yeti and Counterclaim-Defendants actively concealed their plan to destroy NPK
and created a false impression that, among other things, Yeti would continue to do business as
usual with NPK.
63. As Yeti and Counterclaim-Defendants executed their plan against NPK, Yeti
continued to supply liquid to NPK, discuss future plans with NPK, discuss payment obligations,
and to otherwise conduct ordinary business operations with NPK.
64. Meanwhile, Yeti and Counterclaim-Defendants worked to ensure that NPK did
not discover their plan. In a series of recorded telephone calls, Heagle, Jackson, and Lilga
described Yetis efforts to conceal the plan from NPK:
a. On November 16, 2012, Heagle told Jackson, Im just going to move
forward and theyre [NPK] not going to know nothing. Like I told Jessica [Lilga], dont
worry, youre working behind the scenes.
b. On December 15, 2012, Heagle told Jackson, I think youre 100 percent
right. We need to disembark from NPK totally. . . . I want to try to put it together with
Sunlight . . . like you were talking . . . [a]nd, uh, without letting NPK know at all.

c. On December 23, 2012, Heagle told Jackson, . . . I dont want anything to
change here with us, and the way weve been talking and what weve been talking about,
or anything like that, phone calls or anything other s**t. Im trying to get Rich [Rowe of
NPK] off my f**king back so that he dont put two and two together with me and
you. . . . I havent talked to Rich yet . . . [b]ut before I did talk to him I wanted to talk to
you and let you know how Im going to work this out. For one, he aint going to use me
as a pawn. And two, you know, help him, uh, think that were not talking any sh*t about
all this . . . this is a conflict of interest for me. Jackson agreed to do the same.
d. On December 30, 2012, Heagle provided Jackson with an update that he
explained to her [Lilga], you know, what we talked about yesterday . . . [a]nd where
were at as far as Yeti, uh, and NPK is on the break up lanes. I explained to you it takes
three months, it takes six months, whatever to be able to move on . . . [a]nd I explained to
her that, you know, were still going to give her the $1,500 a month to help her get
by . . . . Jackson later responded, Good. Good. Thats perfect. Perfect. Perfect . . . .
Shes totally on board too, obviously. . . . I just look forward to the day of full
detachment from those guys. Later that same day, Jackson confirmed that Lilga was on
the same page, in a recorded telephone conversation with her.
65. Yeti and/or Counterclaim-Defendants in fact took the actions outlined in the
telephone calls described in paragraph 64(a) through (d).
66. Yeti and Counterclaim-Defendants knew their false impression was fraudulent or
made their false impression with reckless disregard for its truth or falsity.
67. Yeti and Counterclaim-Defendants actively concealed their plan from NPK and
made their false impression with the intent to mislead or deceive NPK, and Yeti and
Counterclaim-Defendants knew that they were misleading or deceiving NPK, or did so with
reckless disregard as to whether they were misleading or deceiving NPK.
68. NPK would not have continued to conduct business as usual with Yeti if it had
known about Yetis and Counterclaim-Defendants plan to destroy NPK.

69. NPK reasonably relied on the false impression that Yeti and Counterclaim-
Defendants created by continuing to perform its obligations under the Distribution Agreement.
NPK also continued to invest money in, market, promote, advertise, and research the liquid
manufactured by Yeti.
70. As a direct and proximate cause of Yetis and Counterclaim-Defendants conduct,
NPK has been damaged in an amount to be determined at trial in that, among other things, Yeti
terminated the Distribution Agreement, NPK lost its opportunity to distribute liquid
manufactured by Yeti, and NPK lost opportunity and money from its investments in liquid that
was manufactured by Yeti. NPK is also entitled to punitive damages.
(Fraudulent Misrepresentation Failure to Disclose, Count II NPK v.
Counterclaim-Defendant Jackson)

72. Jackson is an owner of NPK, and there is a special relationship between NPK and
Jackson.
73. Jackson helped bring Yetis and Counterclaim-Defendants competitive products
to market and establish their competing distribution business by, among other things, negotiating
distribution agreements for their products, creating names, labels, product descriptions, and
advertisements for their products, researching and arranging registration for their products, and
arranging the purchase of UPC codes.
74. Additionally, Jackson instructed Left Coast Wholesales employees on how to
market and distribute Yetis and Counterclaim-Defendants competitive products.
75. Upon information and belief, Jackson also directly or indirectly provided Left
Coast Wholesales owner, Dennis Hunter, with NPKs confidential and propriety records
including, among other records, NPKs customer files, NPKs customer contact information,
NPKs customer list, and NPKs corporate minutes. Upon information and belief, NPKs

confidential and propriety records significantly increased Left Coast Wholesales aka Geopots
customer base.
76. In return, upon information and belief, Hunter directly or indirectly paid
Jacksons legal fees. Jackson also purportedly wanted to sell his shares in NPK back to the
company for their fair market value. But Jackson and Hunter schemed to artificially inflate the
value of Jacksons shares in NPK and/or for Jackson to sell his NPK shares directly to Hunter for
the same price that NPK offered to buy Jacksons shares from him.
77. Jackson breached his duty to disclose to NPK all material matters that Jackson
had knowledge of, including, but not limited to, Counterclaim-Defendants plan to destroy NPK
by cutting NPK out of the distribution chain for liquid manufactured by Yeti so that they could
distribute the liquid directly to Sunlight, Green Planet, and others in the marketplace, and as a
result make more profit themselves, and his scheme with Hunter to artificially inflate the value of
his shares.
78. As a direct and proximate cause of Jacksons conduct, NPK has been damaged in
an amount to be determined at trial, and is entitled to punitive damages.
(Fraudulent Misrepresentation, Count III NPK v. Yeti and
Counterclaim-Defendant Heagle)

80. On November 11, 2010, Yeti and NPK executed a 10-year Distribution
Agreement, attached as Exhibit A to the second amended complaint.
81. When Yeti and NPK executed the Distribution Agreement, Yeti, by and through
Heagle acting in his individual and/or corporate capacity, falsely represented to NPK that NPK
would be the exclusive distributor of liquid manufactured by Yeti for 10 years.
82. Yeti and/ or Heagle knew that their representation that NPK would be the
exclusive distributor of liquid manufactured by Yeti for 10 years was false or made their
representation with reckless disregard for its truth or falsity.

83. Yeti and/or Heagle made their representation with the intent to deceive NPK,
Yeti and/or Heagle knew that they were deceiving NPK, or did so with reckless disregard as to
whether they were deceiving NPK.
84. Yeti and/or Heagle knew their representation was false because they had no
intention of making NPK the exclusive distributor of liquid manufactured by Yeti for 10 years,
but instead intended to directly distribute liquid manufactured by Yeti and/or allow third parties
to directly distribute liquid manufactured by Yeti.
85. NPK reasonably relied on Yetis and/or Heagles representation by investing
significant money and time marketing, promoting, advertising, and researching liquid
86. NPK would not have invested the same amount of money and time marketing,
promoting, advertising, or researching liquid manufactured by Yeti if (1) NPK was not going to
be the exclusive distributor of liquid manufactured by Yeti for 10 years; (2) and/or if NPK had
known that Yeti intended to directly distribute liquid manufactured by Yeti or allow third parties
to directly distribute liquid manufactured by Yeti.
87. As a direct and proximate cause of Yetis and/or Heagles conduct, NPK has been
damaged in an amount to be determined at trial in that, among other things, NPK lost revenue
from Yetis direct sales of liquid manufactured by Yeti, NPK lost revenue from direct sales by
third parties of liquid manufactured by Yeti, NPK lost its opportunity to exclusively distribute
liquid manufactured by Yeti, as well as money NPK invested in liquid that was manufactured by
Yeti. NPK is also entitled to punitive damages.
(Fraudulent Misrepresentation, Count IV NPK v. Yeti and

89. In late 2012, Yeti, by and through Heagle acting in his individual and corporate
capacity, falsely represented to NPK that it would continue to manufacture and supply liquid to

NPK without raising prices in 2013. On November 7, 2012 in a recorded telephone conversation
between Heagle and Jackson, Heagle said, I went in and talked to [Rowe] and [Tang], and I told
him the prices go up . . . but I didnt tell them it was going to be progressive, that every quarter
its going to go up . . . until were back up to full price. . . . 15th of December Ill get paid. . . .
Im still going to agree to same price that I told them today so they cannot tell them I lied to
them. Because I never told them today that they get it for the whole year. . . . Im still being a
man o[f] my word, but Ill just change things up for the rest of the year. On November 20,
2012, in a recorded telephone conversation between Heagle and Jackson, Heagle informed
Jackson that, I do know how to play the game theyre playing, and I do know how to
manipulate the manipulator. . . . I told [Rowe] today. . . the reason Im giving a price down
[is] . . . because . . . [the] third year is going to be the last year to really hard push. I got to keep
that price down so that you guys can still have that money to market and everything to get out
there and push. And Rich just ate it up, ate it alive.
90. Yeti and/or Heagle also falsely represented that Yeti would supply enough liquid
to NPK for NPK to meet its minimum order requirements of 419 totes of liquid for 2013.
91. On April 29, 2013, Yeti immediately increased its price for supplying Mighty
Wash liquid to NPK by at least 20%, and immediately shortened the due date for NPKs
payment of invoices from 45 days to 30 days.
92. On May 15, 2013, Yeti refused to supply liquid to fill NPKs orders for Mighty
Wash liquid unless NPK immediately agreed to Yetis price increases for the Mighty Wash
liquid, among other demands.
93. On June 18, 2013, Yeti terminated the 10-year Distribution Agreement.
94. Yeti and/or Heagle knew that their representations that Yeti would continue to
manufacture and supply liquid to NPK without raising prices in 2013 were false or made those
representations with reckless disregard for their truth or falsity.

95. Yeti and/or Heagle knew that their representations that Yeti would manufacture
and supply at least 419 totes of liquid at a fixed price to NPK for Mighty Wash in 2013 were
false or made those representations with reckless disregard for their truth or falsity.
96. Yeti and/or Heagle made those representations with the intent to deceive NPK,
Yeti and/or Heagle knew that they were deceiving NPK, or did so with reckless disregard as to
whether they were deceiving NPK.
97. Yeti and/or Heagle knew their representations were false and intended to deceive
NPK in order to cut off NPKs supply of liquid so that NPK would not be able to fill its Mighty
Wash orders from Sunlight or others in the marketplace. As a result, NPK would be forced to
breach its exclusive contract with Sunlight for NPK to exclusively supply Mighty Wash to
Sunlight. Yeti and/or Heagle could then sell Yetis liquid directly to Sunlight or others in the
marketplace and make more profit for themselves.
98. NPK reasonably relied on Yetis and/or Heagles representations by continuing to
invest money in marketing, promoting, advertising, and researching liquid manufactured by Yeti.
99. NPK would not have continued to operate with business as usual if it had known
about the plan to destroy NPK.
damaged in an amount to be determined at trial in that, among other things, NPK lost its
opportunity to distribute liquid manufactured by Yeti, as well as money it invested in Mighty
Wash that was manufactured by Yeti. NPK is also entitled to punitive damages.
(Fraudulent Misrepresentation, Count V NPK v. Yeti and

102. Since 2010, NPK has directly or indirectly supplied Yeti with one of the raw
ingredients which the parties called pink sauce for the liquid that Yeti manufactured and
supplied to NPK for Mighty Wash.

103. NPK established and/or maintained a contractual or business relationship with a
pink sauce supplier.
104. NPK paid approximately $10,000 for each pallet of pink sauce, and invoiced Yeti
for the same amount.
105. In 2012, Yeti and NPK agreed that NPK could pay outstanding balances it owed
Yeti for liquid by supplying Yeti with pink sauce, and rather than Yeti paying NPK $10,000
cash, it would apply that amount as a credit to reduce NPKs outstanding balance.
106. On March 19, 2013, NPK delivered a pallet of pink sauce to Yeti.
107. On April 1, 2013, Yeti, by and through Heagle acting in his individual and/or
corporate capacity, represented that it only had enough pink sauce to make 18 more totes of
Mighty Wash.
108. On April 4, 2013, NPK delivered a pallet of pink sauce to Yeti as well as a check
in the amount of $10,038.40, which paid off its outstanding balance.
109. On April 23, 2013, Yeti, by and through Heagle acting in his individual and
corporate capacity, represented that it only had enough pink sauce to make 5 more totes of
Mighty Wash, and ordered a pallet of pink sauce from NPK.
110. On May 6, 2013, NPK ordered 3 totes of Mighty Wash from Yeti. Later that day,
Yeti, by and through Heagle acting in his individual and corporate capacity, represented that it
needed a pallet of pink sauce to fill NPKs order. NPK confirmed that it ordered a pallet of pink
sauce.
111. On May 9, 2013, Yeti, by and through Heagle acting in his individual and
corporate capacity, again represented that it could not fill NPKs order for 3 totes of Mighty
Wash unless NPK supplied Yeti with a pallet of pink sauce. NPK again confirmed that it
ordered a pallet of pink sauce and increased its order from 3 totes to 5 totes of Mighty Wash.
112. On May 15, 2013, NPK delivered a pallet of pink sauce to Yeti.
113. On May 15, 2013, Yeti, by and through Heagle acting in his individual and
corporate capacity, refused to supply liquid to fill NPKs order for 5 totes of Mighty Wash unless

NPK immediately agreed to at least a 20% price increase for Yetis liquid, among other
demands.
114. Yetis and/or Heagles representations that Yeti only had enough pink sauce to fill
a limited amount of Mighty Wash totes for NPK or that Yeti could not fill NPKs orders without
a pallet of pink sauce were fraudulent because Yeti and/or Heagle failed to make a full and fair
disclosure of the truth.
115. Yetis and/or Heagles representations were further fraudulent because Yeti
and/or Heagle concealed the truth by creating a false impression that, among other things, Yeti
wanted pallets of pink sauce so that it could supply NPK with liquid when it really wanted
pallets of pink sauce to create the same or similar products and to then supply those products
directly to Sunlight, Green Planet, and others in the marketplace.
116. Yeti and/or Heagle knew those representations were fraudulent or made those
representation with reckless disregard for their truth or falsity.
117. Yeti and/or Heagle made those representations with the intent to deceive NPK,
knew that they were deceiving NPK, or did so with reckless disregard as to whether they were
deceiving NPK.
118. NPK reasonably relied on Yetis and/or Heagles representations by supplying
Yeti with pallets of pink sauce.
119. NPK would not have continued to supply Yeti with pallets of pink sauce had it
been aware that Yeti planned to cut off its supply of liquid for Mighty Wash to NPK, terminate
its 10-year Distribution Agreement with NPK, cut NPK out of the distribution chain for its
liquid, and manufacture and directly supply its liquid to Sunlight, Green Planet, and others in the
marketplace.
opportunity to distribute liquid that Yeti manufactures as well as money it invested in Mighty
Wash that Yeti manufactured.

(Fraudulent Misrepresentation Promise of Future Performance, Count VI NPK v. Yeti
and Counterclaim-Defendant Heagle)

122. In January 2013, Yeti, by and through Heagle acting in his individual and/or
corporate capacity, promised to develop, manufacture, and supply NPK with new products.
123. On January 8, 2013, Yeti and NPK executed a Confidentiality Agreement in
connection with Yetis promise to develop and supply new products to NPK.
124. Upon information and belief, Yeti developed and manufactured new products, but
did not supply them to NPK.
125. At the time Yeti and/or Heagle made their promise to NPK, they had no intention
that Yeti would develop, manufacture, and supply new products to NPK in the future, or Yeti
and/or Heagle made their promise with reckless disregard as to whether Yeti could develop,
manufacture, and supply new products to NPK in the future.
126. A January 4, 2013 recorded telephone conversation between Heagle and Jackson,
revealed Heagles true intention of furthering their plan to cut NPK out of the distribution chain
and set up a competing distribution business rather than supplying new products to NPK: one
thing I would like to do before you [Jackson] start this, is I got my attorney drawing up new non-
disclosures . . . the most important thing to me at this point in time . . . is get them signed by Rich
[Rowe], Reny [Townsend], and OT [Tang] . . . [b]ecause these ones will hold for five years, and
they cannot go buy machines or anything like that and try to copy my product whatsoever or they
will get slammed hard . . . I want to make it to where they cant reproduce any aspect of what
Im doing. . . . As soon as I can get that non-disclosure . . . and get them all to sign it and as soon
as its signed jump on them. On January 8, 2013 in a recorded telephone conversation between
Heagle and Jackson, Jackson inquired about the non-disclosure, and Heagle responded, Well,
lets just say the games begin . . . . He [Rowe] signed it, not a problem at all.

127. Yeti and/or Heagle knew that their promise that Yeti would develop, manufacture,
and supply new products to NPK was false or made that promise with reckless disregard for its
truth or falsity.
128. Yeti and/or Heagle made their promise with the intent to deceive NPK, knew that
they were deceiving NPK, or did so with reckless disregard as to whether they were deceiving
NPK.
129. Yeti and/or Heagle knew their representations were false and intended to deceive
NPK because Yeti planned to terminate its relationship with NPK, cut NPK out of the
distribution chain for liquid manufactured by Yeti, and instead distribute Yetis liquid directly to
NPKs customers, so that Yeti could make more profit.
and corporate capacity, for additional cover as it executed the plan, included a provision in the
Confidentiality Agreement that prevented NPK from soliciting any Yeti employees for one year.
and corporate capacity, included that non-solicitation provision to further deceive NPK by
attempting to eliminate the possibility that NPK could continue to distribute Mighty Wash once
Yeti cut off NPKs supply of liquid.
132. NPK reasonably relied on Yetis and/or Heagles representations by, among other
things, entering into the Confidentiality Agreement. NPK continued to invest money in, market,
promote, and advertise for the Yeti-NPK relationship.
133. NPK would not have signed the Confidentiality Agreement or invested the same
resources into the Yeti-NPK relationship had it been aware that Yeti had no intention of
developing and supplying new products to NPK but instead planned to terminate their
relationship.

opportunity to distribute new products manufactured and developed by Yeti, and lost money
from its investments in the Yeti-NPK relationship. NPK is also entitled to punitive damages.
SECOND CLAIM FOR RELIEF
(Unfair Competition - Lanham Act 15 U.S.C. 1125(a) NPK v. Yeti and

and/or corporate capacity, planned to put out false or misleading blog postings in the
marketplace about Mighty Wash. On November 1, 2013 in a recorded telephone conversation,
Heagle told Jackson, Id like to have somebody that has no contacts with any of us get on the
computer and put in a f**king blog about, Anybody getting black spots in their Mighty
Wash? . . . [a]nd start getting people to reply. Because a lot of people will just say . . . I cant
take it back tonight, so Ill screen the mold out and use it.
137. Upon information and belief, on November 19, 2013, Yeti and/or Counterclaim-
Defendants, by and through Freq Water, Liquid Science Development, Green Planet, and/or Left
Coast Wholesale aka Geopot, directly or indirectly, authorized the contents and circulation of an
email to more than 70 email accounts of wholesale and/or retail distributors of plant wash
products (hereinafter the Frequency Water Email). The subject line of the Frequency Water
Email was: ATTENTION, THE REAL FREQUENCY WATER IS BACK! The Frequency
Water Email was circulated by a Left Coast Wholesale aka Geopots employee.
138. Upon information and belief, Yeti distributes liquid that it manufactures for plant
wash products directly to Freq Water, Liquid Science Development, and/or Green Planet, which
then distributes Yetis liquid under the labels Mega Wash, White Wash, and Freq Wash to Left
Coast Wholesale aka Geopot, which then distributes Mega Wash, White Wash, and Freq Wash
in the marketplace.

139. On November 26, 2013 in a recorded telephone conversation with Jackson,
Heagle recapped that he told his attorney [w]hat they [NPK] claim to be Mighty Wash is now
called Mega Wash and Im selling it to people that came to me to buy it because their [NPKs]
product was inferior, molded, and rancid.
140. Upon information and belief, Yeti and/or Counterclaim-Defendants, by and
through Freq Water, Liquid Science Development, Green Planet, and/or Left Coast Wholesale
aka Geopot, made false or misleading statements of fact including, without limitation, in the
Frequency Water Email that a formula change is causing [NPKs] bottles to mold, which is
a sure fire sign that your product does not actually contain frequency water.
aka Geopot, made further false or misleading statements of fact including, without limitation, in
the Frequency Water Email that because of NPKs change in formula which purportedly
caused its bottles to mold Green Planet discontinued distributing NPKs products, and
subsequently contacted Yeti and/or Freq Water to directly distribute liquid manufactured by
Yeti.
aka Geopot, also made false or misleading statements of fact including, without limitation, in the
Frequency Water Email that Yeti, by and through Freq Water, Liquid Science Development,
Green Planet, and/or Left Coast Wholesale aka Geopot, was releasing a new and improved plant
wash line.
through Jackson, Lilga, Freq Water, Liquid Science Development, Green Planet, and/or Left
Coast Wholesale aka Geopot, directly or indirectly, published to third parties false or misleading
statements about NPKs services or commercial activities including, without limitation, that
NPK never had an exclusive distribution relationship with Yeti; that NPK would be shut down

by EPA, IRS, DEQ, and/or OSHA; and that NPK did not follow EPA label registration
requirements.
144. Yetis and/or Counterclaim-Defendants false or misleading statements about
NPK and its products including, without limitation, in the Frequency Water Email, and other
direct or indirect communications, by and through Jackson, Lilga, Freq Water, Liquid Science
Development, Green Planet, and/or Left Coast Wholesale aka Geopot, in the context of the plant
wash market, were made in a commercial advertisement or for the purpose of soliciting sales or
promoting Yetis competing in-house distribution business and plant wash products.
Coast Wholesale aka Geopot, made false or misleading statements about NPKs commercial
services, activities, and/or its products, and directly or indirectly circulated, or authorized the
circulation of, the Frequency Water Email primarily for the purpose of influencing wholesale
and/or retail distributors to buy liquid manufactured by Yeti, and distributed under the brand
names Mega Wash, White Wash, and Freq Wash, directly from Yeti, by and through Freq Water,
Liquid Science Development, Green Planet, and/or Left Coast Wholesale aka Geopot rather
than NPK.
146. Upon information and belief, the plant wash product market comprises a niche
segment of the gardening industry, and a small and closely connected group of wholesale and
retail distributors account for the majority of plant wash product sales.
147. Upon information and belief, Yetis and/or Counterclaim-Defendants false or
misleading statements including, without limitation, in the Frequency Water Email, and other
Development, Green Planet, and/or Left Coast Wholesale aka Geopot were made in bad faith.
148. Upon information and belief, Yetis and/or Counterclaim-Defendants false or
misleading statements including, without limitation, in the Frequency Water Email, and other

Development, Green Planet, and/or Left Coast Wholesale aka Geopot actually deceived, or has a
tendency to deceive a substantial segment of its audience.
149. Upon information and belief, the deception is material in that it is likely to
influence the purchasing decision of wholesale and retail distributors, and/or the consuming
public.
150. Upon information and belief, Yeti and/or Counterclaim-Defendants, caused their
false or misleading statements including, without limitation, in the Frequency Water Email, and
other direct or indirect communications, by and through Jackson, Lilga, Freq Water, Liquid
Science Development, Green Planet, and/or Left Coast Wholesale aka Geopot, to enter interstate
commerce by disseminating them to the major wholesale and retail distributors of plant wash
products.
151. As a direct and proximate result of Yetis and/or Counterclaim-Defendants false
or misleading statements including, without limitation, in the Frequency Water Email, and other
Development, Green Planet, and/or Left Coast Wholesale aka Geopot, NPK has been damaged in
an amount to be proven at trial including by, among other things, direct diversion of sales from
itself to Yeti, by and through Freq Water, Liquid Science Development, Green Planet, and/or
Left Coast Wholesale aka Geopot, loss of customers, loss of trade, a lessening of the goodwill
and/or marketability of NPKs products, and harm to NPKs goodwill and/or reputation.
152. In addition, pursuant to 15 U.S.C. 1117(a), NPK is entitled to the disgorgement
of Yetis profits and NPKs costs in this action.
153. Yetis and/or Counterclaim-Defendants willful, deliberate, egregious, and bad
faith violations of the Lanham Act, by and through Jackson, Lilga, Freq Water, Liquid Science
Development, Green Planet, and/or Left Coast Wholesale aka Geopot, render this case an
exceptional case pursuant to 15 U.S.C. 1117(a) such that NPK should be awarded reasonable
attorney fees.

THIRD CLAIM FOR RELIEF
(Common Law Trade Libel or Product Disparagement NPK v. Yeti and

Coast Wholesale aka Geopot, directly or indirectly, published to third parties false or misleading
statements about NPKs products with malice including, but not limited to, that NPKs products
are moldy and of substandard quality.
156. Yeti and/or Counterclaim-Defendants, by and through Jackson, Lilga, Freq Water,
Liquid Science Development, Green Planet, and/or Left Coast Wholesale aka Geopot, published
these false or misleading statements with knowledge that they were false or misleading or with
reckless disregard for whether or not they were false or misleading and/or with a high degree of
awareness of that they were probably false or misleading.
157. Yeti and/or Counterclaim-Defendants, by and through Jackson, Lilga, Freq Water,
Liquid Science Development, Green Planet, and/or Left Coast Wholesale aka Geopot, made
these false or misleading statements with the primary purpose of maliciously injuring NPK or its
products by, among other things, destroying their reputation, goodwill, marketability, and/or
diverting business away from NPK.
158. As a direct and proximate result of Yetis and/or Counterclaim-Defendants
conduct, by and through Jackson, Lilga, Freq Water, Liquid Science Development, Green Planet,
and/or Left Coast Wholesale aka Geopot, NPK has suffered special damages and/or pecuniary
harm, including loss of customers, sales, goodwill, and/or marketability, in an amount to be
determined at trial. NPK is also entitled to punitive damages.

FOURTH CLAIM FOR RELIEF
(Common Law Defamation NPK v. Counterclaim-Defendant Jackson)

160. Upon information and belief, Jackson published to third parties false and
defamatory statements about NPK with malice including, without limitation, that NPK would be
shut down by EPA, IRS, DEQ, and/or OSHA; that NPK violated EPA regulations; and that NPK
violated tax laws.
161. Jackson published these false statements with knowledge that they were false or
with reckless disregard for whether they were false or not and/or with a high degree of awareness
of their probable falsity.
162. Jackson made these false statements with the primary purpose of maliciously
injuring NPK by, among other things, destroying its reputation, goodwill, and/or diverting
business away from NPK.
163. The third parties reasonably understood both that the communication was about
NPK and had a defamatory meaning.
164. As a direct and proximate result of Jacksons conduct, NPK has been damaged in
an amount to be proven at trial including, among other things, loss of customers from itself to
Yeti, by and through Heagle, Lilga, Freq Water, Liquid Science Development, Green Planet,
and/or Left Coast Wholesale aka Geopot, loss of trade, and harm to NPKs goodwill and/or
reputation. NPK is also entitled to punitive damages.
FIFTH CLAIM FOR RELIEF
(Intentional Interference with Economic Relations NPK v. Yeti and

166. Green Planet is a wholesale distributor of indoor gardening products.

167. NPK had a business relationship and/or prospective economic relationship with
Green Planet where NPK would supply liquid manufactured by Yeti directly to Green Planet.
168. Yeti and/or Counterclaim-Defendants were not parties to NPKs business
relationship with Green Planet.
through Freq Water, Liquid Science Development, and/or Left Coast Wholesale aka Geopot,
intended to interfere with NPKs business relationship with Green Planet.
through Freq Water, Liquid Science Development, and/or Left Coast Wholesale aka Geopot,
interfered through improper means including, without limitation, deceit, misrepresentation,
defamation, or disparaging falsehood.
through Freq Water, Inc., and/or Left Coast Wholesale aka Geopot, also interfered for an
improper purpose including, among other things, destroying NPK so that Yeti could distribute its
liquid directly to Green Planet.
172. Upon information and belief, Yeti now manufactures and distributes the same or
similar liquid that Yeti manufactured and exclusively supplied to NPK directly to Freq Water,
Liquid Science Development, and/or Green Planet, which then distributes Yetis liquid under the
labels Mega Wash, White Wash, and Freq Wash to Left Coast Wholesale aka Geopot, which
then distributes Mega Wash, White Wash, and Freq Wash in the marketplace.
173. As a direct and proximate result of Yetis and/or Counterclaim-Defendants
conduct, NPK has been damaged in an amount to be proven at trial in that, among other things,
Green Planet ceased purchasing liquid manufactured by Yeti from NPK, and NPK lost its
opportunity to distribute liquid manufactured by Yeti directly to Green Planet. NPK is also
entitled to punitive damages.

SIXTH CLAIM FOR RELIEF
(Conversion NPK v. Yeti and Counterclaim-Defendants Heagle, Jackson, and Lilga)

175. NPK owned, possessed, and had a right to possess confidential and propriety
records including, among other records, NPKs customer files, NPKs customer contact
new NPK product line, and NPKs exclusive distribution contracts with Sunlight.
176. On October 14, 2012, in a recorded telephone conversation, Jackson told Lilga to
find a way to download the database [NPKs customer list] information, and I dont know, you
know, you might have to be squirrelly about it or whatever. Download it onto a hard drive. But
find a way to download all that so that we have it as well. And do it periodically . . . . Weekly.
Weekly, if it has to be, you know. And make sure that we have all that information because
weve worked for that.
177. On October 24, 2012, Lilga obtained NPKs customer list from its bookkeeper.
178. On October 30, 2012, Lilga asked NPKs bookkeeper to narrow the [customer]
list for the top 50 highest buyers . . . .
179. November 16, 2012 was Lilgas last day of employment with NPK.
180. That same day, Yeti confirmed with Jackson that Lilga got all your contacts and
everything, in a recorded telephone conversation. Jackson responded, Oh yeah, shes got all
my contacts. She got my list of all, which they dont even have the list of all the Sunlight stores,
which I have, all 1253, plus I told her clean out all that stuff. She already had done that. I have
everything on the [customer] database that I built up too. Ive got that saved; Ive got all my
connections in my phone saved, which they cant have my phone because I bought it, and I told
her when you give your phone back, if you do, you erase that thing. Heagle then confirmed
Lilga would start working for Yeti on November 25th, and also said, Were going to depend on

them [NPK] to operate, so that we can behind the closet, without them even knowing it, one day
take them a bottle from Home Depot and see something manufactured by Yeti.
181. On Sunday, December 2, 2012, two weeks after ending her employment with
NPK, without NPKs consent, Lilga returned to the office where she had worked while employed
at NPK. That night Lilga stole NPKs corporate records including, among other records, NPKs
customer files. In a recorded telephone conversation, Lilga told Jackson, Im at the shop kind
of just going through the office . . . well, I got most all the papers. Lilga later confessed to
Jackson that she cleared it out. Instead of throwing away stuff, I put it all in a box. . . . But if
theyre company-related, I dont want to be in trouble for taking any [company] property . . . .
MS[D]S sheets, files that you may have about, I dont know, customer files . . . . Like business
cards and notebook papers with customers contact info. . . . it could be called company property.
I kept it all. I kept all that stuff.
182. Upon information and belief, Yeti and/or Counterclaim-Defendants, intentionally
and seriously interfered with NPKs right to control its confidential and proprietary records by
taking possession of, among other records, NPKs customer files, NPKs customer contact
new NPK product line, and NPKs exclusive distribution contracts with Sunlight, and used those
records inconsistently with NPKs rights, without NPKs consent, by:
a. retaining and/or sharing NPKs confidential and proprietary records with
third parties;
b. using NPKs confidential and proprietary records to set up exclusive direct
supply relationships between Yeti and NPK customers and others, thereby cutting NPK
out of the distribution chain;
c. upon information and belief, sharing NPKs confidential and proprietary
records with competitors Dennis Hunter, Left Coast Wholesale aka Geopot, and Green
Planet, in order to damage NPK and secure future loyalty and distribution deals with
them for liquid manufactured by Yeti; and

d. using NPKs confidential and proprietary records to attempt to secure new
distribution deals with Sunlight, Green Planet, and others in the marketplace for liquid
183. On December 15, 2012 in a recorded telephone conversation with Heagle,
Jackson relayed that, I told her [Lilga] to dig up that last contract, because in that contract there
was 21 points that pretty much made Sunlight Supply do a majority of all the marketing for that
product [Mighty Wash]. And if its their own product, its a private label, theyre going to do
that regardless, but its still nice to have it on the face surface . . . I want to see it on your website
like its been already built, it would be stupid not to. Heagle replied, You see, youve got
knowledge on all that stuff. You can write all that out and have Jess [Lilga] help us with all the
contracts and stuff and itd be just like youre working for us, buddy. Jackson responded,
Exactly. And Ive got that old contract. I told [Lilga] to get it out and, uh, bring you the
points. On January 20, 2013, Jackson confirmed that Heagle received NPKs Sunlight contract
from Lilga, I was talking with Jess [Lilga], and she said she gave you the old contract for
Sunlight. Does that have the 21 points that we put into it? Heagle responded, You know,
I really didnt see mark[et]ing points that I could remember. But this looks like this contract
that I got truly, to me, looks like one that was a start up contract and something else was changed
and you guys did a different contract. Jackson then told Heagle that he would have Lilga
continue to look for the 21 point Sunlight contract.
184. On June 30, 2013 in a recorded telephone conversation, Heagle and Jackson
strategized about how to use NPKs customer list to save money and sell directly to NPKs
customers:
Heagle: What Im thinking is that we get a website up and we set
it off. Do you have a customer list? An NPK customer list?

Jackson: Uh-huh.

Heagle: Do you got one?:

Jackson: Yeah, I got one.


Heagle: Okay. Heres what my plan is, is get a list of every store
f**king out there that we can.

Jackson: I got it.

Heagle: And then send send the program out to my source.

Jackson: Yep.

Heagle: Okay. And then what Ill want to do is send the buyer
out to all these stores, tell them that if they want they can . . . buy
directly from the manufacturer.

185. As a direct and proximate result of Yetis and/or Counterclaim Defendants
interference with NPKs right to control its confidential and proprietary records, NPK has been
damaged in an amount to be proven at trial in that, among other things, it has lost, and continues
to lose, business and profits because certain NPK customers now buy plant washes directly from
Yeti, Freq Water, Liquid Science Development, Green Planet, and/or Left Coast Wholesale aka
Geopot rather than NPK. NPK is also entitled to punitive damages.
SEVENTH CLAIM FOR RELIEF
(Fraudulent Transfer Uniform Fraudulent Transfer Act NPK v. Yeti and
Counterclaim-Defendant Freq Water)

186. On or about September 10, 2013, Heagle, Yetis majority owner and president,
conveyed to Jackson in a recorded telephone conversation his concern that if NPK succeeded in
defending against Yetis claims and prosecuting its affirmative defenses and counterclaims
against Yeti in the instant lawsuit, It will shut down Yeti.
187. Consequently, Heagle shared with Jackson his intent to transfer Yetis assets to
a new corporation so that NPK wont be able to touch that other . . . corporation or any of our
new products whatsoever in any way, shape or form. Instead, Heagle asserted that all NPK
would be able to get out of Yeti is what Yetis worth in bankruptcy. Through one big
package loan that has to be paid off . . . before we go to court, Heagle intended that
everything Yeti owns will now become that new corporations . . . . Heagle further expressed
his intent to establish the new corporation the next day.

188. On September 11, 2013, in accordance with Heagles plan, Heagles wife Jene
Heagle filed Articles of Incorporation establishing Freq Water, Inc. (Freq Water). Freq
Waters incorporators are Heagle and his wife Jene Heagle.
189. Heagles plan to hide Yetis assets was hatched as early as the fall of 2012. On
November 27, 2012, after meeting with Heagle, Lilga relayed to Jackson, in a recorded telephone
conversation, that Heagle was concerned about a conflict of interest with NPK. Lilga went on
to say that part of Heagles plan all along was to take his end of the year payment [from
NPK], his December 15th. Hes going to dividend the shares of the company. Hes going to out
pay everybody, so that basically the company [Yeti] is going to be broke at the end of the year
because everyone has shares. Lilga then explained that Heagle was going to take his shares,
reinvest it, [and] invest it into his house, to secure his home. If sh*t hits the fan they dont lose
their house.
190. Upon information and belief, Yeti and/or Freq Water have accomplished the
transfer of substantially all of Yetis assets to Freq Water or other persons or entities.
191. Freq Water was established for the purpose of shielding Yetis assets from NPK.
Upon information and belief, Freq Water is substantially owned and controlled by the same
individuals who own and control Yeti. As such, Yetis asset transfer was to an insider, and it
functionally retained possession or control of the property transferred after the transfer.
192. Yeti and/or Freq Water failed to disclose to NPK the transfer of Yetis assets to
Freq Water.
193. The transfer of Yetis assets to Freq Water was made with actual intent to hinder,
delay, or defraud NPK.
194. Yetis and/or Freq Waters transfer of Yetis assets to Freq Water should be
voided.
195. Yeti should be enjoined from transferring any assets to Freq Water, or other
persons or entities, during the pendency of this action.

EIGHTH CLAIM FOR RELIEF
(Joint Liability Conspiracy NPK v. Yeti and Counterclaim-Defendants
Heagle, Jackson, and Lilga)

197. Yeti and Counterclaim-Defendants committed tortious acts in concert with each
other with knowledge of the others actions, and/or gave substantial assistance and/or
encouragement to the other, in a plan and scheme to harm NPK. Accordingly, they are jointly
and severally liable for the acts of each other in causing NPK harm.
198. On October 19, 2012, Yeti, by and through Heagle acting in his individual and
corporate capacity, Jackson, and Lilga formulated their plan to destroy NPK by, among other
things, cutting NPK out of the distribution chain for Yetis liquid and setting up their competing
distribution business. Heagle reassured Jackson to . . . stick with the program. Just let
everything ride for a while and well see how things go in between me and you talking and
[Lilga] talking, well get together. . . . I got your back 100% all the way through this . . . .
199. On November 28, 2012 in a recorded telephone conversation with Jackson,
Heagle reaffirmed the plan, . . . my main goal, Nick, is wanting to get paid on December 15th,
and two, for you to get disconnected from them . . . And after thats all done then well talk
about how and when were going to put the hammer down [on NPK]. . . . Its going to be [a]
group decision between all of us on how we do it and when we do it and what were going to
do. Jackson replied, Awesome. Awesome. Heagle went on to say, Ill get together with
[Lilga] and well be up sometime this weekend.
200. Upon information and belief, Heagle cautioned Jackson and Lilga about
discussing their plans on the phone in order to avoid evidence of a conspiracy. On December 29,
2012 in a recorded telephone conversation between Lilga and Jackson, they both discussed
Heagles warning:

Jackson: [I]t was a good meeting. Got to sit with Jim and
conversate about everything. You know, hes like, these are things
we should quit talking about on the phone, you know. And Ill tell
you next time [they meet face to face], but he was like, you know,
this could lead to, you know, you saying that you acknowledge
things that might be happening. And, uh, I was like, well, you
know, I try to say I think a lot. And he goes thats what saves you.
I just wanted to let you know because he talked to his attorney and
he was like, you dont want to be part of a conspiracy.

Lilga: All right. He told [me] about that, too. And its just like,
well, thats why we want to get out, because were just coming to
that understanding.

NPK has been damaged in an amount to be determined at trial.
NINTH CLAIM FOR RELIEF
(Joint Liability Aiding and Abetting NPK v. Yeti and Counterclaim-Defendants Heagle,
Jackson, and Lilga)

203. Yeti and/or Counterclaim-Defendants committed tortious acts with knowledge
that the others conduct constituted a breach of duty and gave substantial assistance or
encouragement to the other and/or gave substantial assistance to the other in accomplishing a
tortious result, and his own conduct constitutes a breach of duty to NPK. Accordingly, they are
jointly and severally liable for the acts of each other in causing NPK harm.
204. On October 18, 2012, as Lilga and Jackson discussed the plan to destroy NPK by,
among other things, cutting NPK out of the distribution chain and setting up their competing
distribution business, Jackson assured Lilga in a recorded telephone conversation between the
two of them that things are going to work out to our benefit. And, I mean, even if at the
beginning of the year it [Mighty Wash] switches over, its going to be instant sales because
I already know that all of our relationships that weve built with all of our distributors have been
through me, and you know all of them as well, so youll be able to facilitate those. And, you
know, Jim [Heagle] will pay us more than were making right now. . . .

205. As Yeti, by and through Heagle acting in his individual and corporate capacity,
Jackson, and Lilga executed the plan, Heagle told Jackson, Im going to let you and Jessica
facilitate everything with Sunlight. . . during a recorded telephone conversation on January 27,
2013.
NPK has been damaged in an amount to be determined at trial.
TENTH CLAIM FOR RELIEF
(Breach of Contract NPK v. Yeti)
208. The 10-year Distribution Agreement and its amendments are valid and binding
contracts between NPK and Yeti.
209. Yeti, by and through Heagle acting in his individual and/or corporate capacity,
repudiated or breached the Distribution Agreement by, among other things, directly distributing
liquid manufactured by Yeti and/or allowing third parties to directly distribute liquid
manufactured by Yeti that Yeti agreed NPK would exclusively distribute for 10 years.
repudiated or breached the Distribution Agreement by, among other things, increasing the prices
for plant washes without sufficient notice.
repudiated or breached the Distribution Agreement by, among other things, shortening the due
date for payment of invoices.
repudiated or breached the Distribution Agreement by, among other things, not supplying NPK
with plant washes unless NPK immediately agreed to Yetis unilateral and arbitrary changes to
the terms of the parties agreements.

repudiated or breached the Distribution Agreement by, among other things, terminating the
Distribution Agreement before the 10-year term expired.
214. NPK substantially performed its obligations under the Distribution Agreement
and its amendments or is otherwise excused from such performance by Yetis actions.
215. As a result of Yetis breach, NPK has suffered damages in an amount to be
determined at trial, but in any event, not less than $6,787,250.40. NPK is entitled to prejudgment
interest at the statutory rate.
216. NPK is entitled to recover its reasonable attorney fees, expenses, and costs
incurred in this action, pursuant to paragraph 21 of the Distribution Agreement.
ELEVENTH CLAIM FOR RELIEF
(Breach of the Implied Covenant of Good Faith and Fair Dealing NPK v. Yeti)

218. The 10-year Distribution Agreement and its amendments contain an implied
covenant of good faith and fair dealing.
219. NPK and Yeti had objectively reasonable expectations that Yeti would perform its
obligations under the 10-year Distribution Agreement and its amendments in good faith.
220. Yeti violated these reasonable expectations and breached its duty of good faith
and fair dealing by, among other things, plotting to distribute liquid manufactured by Yeti
directly to Sunlight, Green Planet, and others in the marketplace; plotting to cut NPK out of the
distribution chain for liquid manufactured by Yeti; upon information and belief, representing to
third parties that Yeti never gave NPK the exclusive right to distribute liquid manufactured by
Yeti; and refusing to supply NPK with plant washes unless NPK agreed to new terms, which
were not agreed to or bargained for under the 10-year Distribution Agreement or its
amendments.

221. NPK has substantially performed its obligations under the Distribution Agreement
and its amendments or is otherwise excused from such performance by Yetis actions.
222. As a result of Yetis breach, NPK has suffered damages in an amount to be
determined at trial, but in any event, not less than $6,787,250.40. NPK is entitled to prejudgment
interest at the statutory rate.
223. NPK is entitled to recover its reasonable attorney fees, expenses, and costs
incurred in this action, pursuant to paragraph 21 of the Distribution Agreement.
TWELFTH CLAIM FOR RELIEF
(Breach of Non-Disclosure Contract, Count I NPK v. Counterclaim-Defendant Jackson)
225. On or around April 11, 2011, Jackson entered into a Mutual Non-disclosure
Agreement with NPK. A copy of the agreement is attached to NPKs Answer as Exhibit 3.
Pursuant to that agreement, Jackson agreed to hold in strict confidence and to not disclose to any
third party confidential information including: trade secrets, copyrighted information, and
proprietary information. Jackson also agreed to use such confidential information for no purpose
other than the development of NPK and related entities.
226. The Mutual Non-disclosure Agreement is a valid and binding contract between
Jackson and NPK.
227. Upon information and belief, Jackson disclosed NPKs confidential and propriety
information, NPKs customer list, NPKs corporate minutes, and NPKs exclusive distribution
contracts with Sunlight as defined by the Mutual Non-disclosure Agreement to third parties
including but not limited to Yeti, Freq Water, Liquid Science Development, Green Planet, Left
Coast Wholesale aka Geopot, Heagle, and/or Hunter. In making such disclosures, Jackson
materially breached the Mutual Non-disclosure Agreement.

228. As a direct and proximate result of Jacksons interference with NPKs right to
control its confidential and proprietary records, NPK has been damaged in that it has lost, and
continues to lose, business and profits because certain NPK customers now buy plant washes
directly from Yeti, Freq Water, Liquid Science Development, Green Planet, and/or Left Coast
Wholesale aka Geopot rather than NPK.
229. Jackson, acting on his own behalf or by and through Yeti, Freq Water, Liquid
Science Development, Green Planet, and/or Left Coast Wholesale aka Geopot, should be
permanently enjoined from the use of NPKs confidential and proprietary records, and any
benefit derived therefrom.
(Breach of Non-Disclosure Contract, Count II NPK v. Counterclaim-Defendant Lilga)
231. On or around June 8, 2012, NPK entered into a Non-disclosure Agreement with
Jessica Lilga. A copy of the agreement is attached to NPKs Answer as Exhibit 4. Pursuant to
that agreement, Lilga promised to hold and maintain NPKs confidential information in strictest
confidence for the sole and exclusive benefit of NPK. She also promised to carefully restrict
access to NPKs confidential information to third parties.
232. The Mutual Non-disclosure Agreement is a valid and binding contract between
Lilga and NPK.
233. Upon information and belief, Lilga disclosed NPKs confidential and propriety
information, NPKs customer list, NPKs corporate minutes, and NPKs exclusive distribution
contracts with Sunlight as defined by the Mutual Non-disclosure Agreement to third parties
including but not limited to Yeti, Freq Water, Liquid Science Development, Green Planet, Left
Coast Wholesale aka Geopot, Heagle, and/or Hunter. In making such disclosures, Jackson
materially breached the Mutual Non-disclosure Agreement.

234. As a direct and proximate result of Lilgas interference with NPKs right to
control its confidential and proprietary records, NPK has been damaged in that it has lost, and
continues to lose, business and profits because certain NPK customers now buy plant washes
directly from Yeti, Freq Water, Liquid Science Development, Green Planet, and/or Left Coast
Wholesale aka Geopot rather than NPK.
235. Lilga, acting on her own behalf or by and through Yeti, Freq Water, Liquid
Science Development, Green Planet, and/or Left Coast Wholesale aka Geopot, should be
permanently enjoined from the use of NPKs confidential and proprietary records, and any
benefit derived therefrom.
THIRTEENTH CLAIM FOR RELIEF
(Declaratory Judgment Count I: Ownership of Trademarks)

237. In accordance with 28 U.S.C. 2201 and 2202, an actual and justiciable
controversy exists between NPK and Yeti with regard to NPKs ownership of the trademarks for
Mighty Wash, PM Wash, Power Wash, the Power Button, and the Frequency Logo
(collectively NPKs Marks).
238. NPK invented, paid for, and has continuously used NPKs Marks in commerce.
239. Consumers identify and associate NPKs Marks with NPK because NPK has
invested substantial sums in promotion and advertising of NPKs Marks.
240. NPK applied for registration of the Mighty Wash, Power Wash, and Power
Button marks with the U.S. Patent and Trademark Office, U.S. Trademark Registration
Nos. 4,121,193, 4,241,438, 4,346,896, 4,400,010, and they were registered on April 3, 2012,
November 13, 2012, June 4, 2013, and September 10, 2013, respectively.
241. As a result, NPK requests this Court declare that NPK is the owner of the
trademarks for Mighty Wash, PM Wash, Power Wash, the Power Button, and the
Frequency Logo, and that Yeti is not the owner of those trademarks.

(Declaratory Judgment Count II: Use of NPKs Marks)

controversy exists between NPK and Yeti with regard to NPKs ability to sell plant washes from
any source using NPKs Marks, sell other products using NPKs Marks, and Yetis ability to sell
its plant washes using NPKs Marks.
244. NPK invented and paid for NPKs Marks in September 2010.
245. NPKs logo, NPK Industries, appeared on the original labels for the following
three plant washes sourced by Yeti: Mighty Wash, PM Wash, and Power Wash.
246. NPK maintained the quality and uniformity of the products.
247. Consumers identified the products with NPK.
248. Consumers made complaints to NPK about the products.
249. NPK possesses the good will associated with the products.
250. Yeti has stopped supplying NPK with the liquid components for the products.
251. NPK requests this Court declare that NPK can use NPKs Marks to sell plant
washes from any source, sell other products using NPKs Marks, and that Yeti cannot use NPKs
Marks to sell Yetis plant washes without NPKs written consent.
(Declaratory Judgment Count III:
Counterclaim-Plaintiffs Declarations re Trademark Registration)

252. Counterclaim-Plaintiffs reallege and incorporate all previous paragraphs of the
counterclaim as if fully stated herein.
controversy exist between NPK and Yeti with regard to whether Counterclaim-Plaintiffs
knowingly made false declarations in registering the Mighty Wash, Power Wash, and
Power Button marks with the U.S. Trademark Registration Nos. 4,121,193, 4,241,438,

4,346,896, 4,400,010, and induced the trademark examiner to act or refrain from acting in
reliance upon any alleged false declarations.
254. Counterclaim-Plaintiffs, in good faith, stated that NPK was the owner of the
Mighty Wash, Power Wash, and Power Button marks in registering those trademarks with
the U.S. Patent and Trademark Office, U.S. Patent and Trademark Office, U.S. Trademark
Registration Nos. 4,121,193, 4,241,438, 4,346,896, 4,400,010, which were registered on April 3,
2012, November 13, 2012, June 4, 2013, and September 10, 2013, respectively.
255. NPK invented the Mighty Wash, Power Wash, and Power Button
trademarks in September 2010.
256. NPK has continuously used the Mighty Wash, Power Wash, and Power
Button trademarks in commerce since, at least, October 2010.
257. Consumers identify and associate the Mighty Wash, Power Wash, and
Power Button trademarks with NPK because NPK has invested substantial sums in promoting
and advertising of the Mighty Wash, Power Wash, and Power Button trademarks.
258. NPK requests that this Court declare that Counterclaim-Plaintiffs did not
knowingly make false declarations in registering the Mighty Wash, Power Wash, and
Power Button marks with the U.S. Patent and Trademark Office, U.S. Trademark Registration
Nos. 4,121,193, 4,241,438, 4,346,896, 4,400,010, and did not induce the trademark examiner to
act or refrain from acting in reliance upon any alleged false declarations.
(Declaratory Judgment Count IV:
Yetis Breach of the 10-year Distribution Agreement)

260. In accordance with 28 U.S.C. 2201 and 2202 and Or. Rev. Stat. 28.010, an
actual and justiciable controversy exist between NPK and Yeti with regard to whether Yeti
breached or repudiated the Distribution Agreement and its amendments prior to any alleged
breach by NPK; whether Yetis repudiation of the Distribution Agreement and its amendments

excused NPKs performance; whether NPK had reasonable grounds for insecurity with respect to
Yetis performance of the Distribution Agreement and its amendments; whether NPKs request
for assurances suspended NPKs obligation to perform under the Distribution Agreement and its
amendments; whether the Distribution Agreement and its amendments either (i) required
monthly minimum purchases by NPK and any alleged breach of installments substantially
impaired the value of the whole contract, or (ii) required yearly minimum purchases by NPK and
NPKs time for performance had not expired; and whether Yeti wrongfully terminated the
Distribution Agreement and its amendments.
261. In January 2013, Yeti demanded that NPK change an advertisement for two NPK
gardening products Multiply and Stack that stated: From the Creators of Mighty Wash.
262. On January 28, 2013, Yeti demanded that NPK sell all Mighty Wash, PM
Wash, and Power Wash manufactured by Yeti to NPKs distributor, Sunlight. Yeti also
demanded that NPK turn over its customer list, materials supplier lists, label maker accounts, and
a supply account for a plant wash ingredient; assign its Mighty Wash trademark to Yeti; stop
using NPKs trademark for the Power Button; sign an agreement with Yeti that Yeti is free to
make a direct distribution deal with Sunlight; and pay all money owed to Yeti. Yeti also stopped
supplying the products for a period of time.
263. In good faith, NPK agreed to change any advertisements that said From the
Creators of Mighty Wash to From the Distributors of Mighty Wash.
264. In good faith, NPK paid off the full balance of $31,608.30 owed to Yeti.
265. Despite NPKs good faith efforts to perform its obligations under the Distribution
Agreement and its amendments, Yeti unilaterally and arbitrarily increased prices for plant
washes without sufficient notice to NPK.
266. Yeti also unilaterally and arbitrarily shortened the due date for payment of
invoices.

267. Yeti then stopped supplying NPK with plant washes unless NPK immediately
agreed to Yetis unilateral and arbitrary changes to the terms of the Distribution Agreement and
its amendments.
268. As a result, NPK had reasonable grounds for insecurity with respect to Yetis
performance of the Distribution Agreement and its amendments.
269. On May 15, 2013, NPK sent Yeti a request for assurances of Yetis continued
performance of the Distribution Agreement and its amendments.
270. NPKs request for assurances suspended any obligation of NPK to perform its
obligations under the Distribution Agreement and its amendments.
271. Yeti terminated the Distribution Agreement before the ten year term expired.
272. The Distribution Agreement and its amendments required either (i) monthly
minimum purchases by NPK and any alleged breach of installments did not substantially impair
the value of the whole contract, or (ii) required yearly minimum purchases by NPK and NPKs
time for performance had not expired.
273. NPK requests that this Court declare that: Yeti breached or repudiated the
Distribution Agreement and its amendments prior to any alleged breach by NPK; Yetis
repudiation of the Distribution Agreement and its amendments excused NPKs performance;
NPK had reasonable grounds for insecurity with respect to Yetis performance of the
Distribution Agreement and its amendments; NPKs request for assurances suspended NPKs
obligation to perform under the Distribution Agreement and its amendments; the Distribution
Agreement and its amendments either (i) required monthly minimum purchases by NPK and any
alleged breach of installments did not substantially impair the value of the whole contract, or
(ii) required yearly minimum purchases by NPK and NPKs time for performance had not
expired; and Yeti wrongfully terminated the entire agreement.

FOURTEENTH CLAIM FOR RELIEF
(Injunctive Relief against Yeti and Counterclaim-Defendants Heagle, Jackson, and Lilga)

274. NPK realleges and incorporates paragraphs 1 through 261 of the counterclaim as
if fully stated herein.
275. Pursuant to ORS 28.080, 22 U.S.C. 2202, 15 U.S.C. 1116(a), and the Courts
residual power to order further necessary and proper relief, NPK is entitled to a permanent
injunction against Yeti and Counterclaim-Defendants, restraining and enjoining Yeti and
Counterclaim-Defendants, acting by and through Jackson, Lilga, Freq Water, Liquid Science
Development, Green Planet, and/or Left Coast Wholesale aka Geopot, from maliciously, or in
bad faith, publishing false, misleading, and/or defamatory statements about NPK and its
products, and using NPKs confidential or proprietary records or deriving any benefit therefrom.
276. Yetis and/or Counterclaim-Defendants actions will continue to cause NPK to
suffer immediate and irreparable harm including, without limitation, loss of customers from NPK
to Yeti, loss of trade, and damage to the reputation and/or goodwill of NPK and its products, for
which there is no adequate remedy at law.
DEMAND FOR JURY TRIAL
277. Counterclaim-Plaintiffs demand a jury trial in this action.
PRAYER FOR RELIEF

WHEREFORE, Counterclaim-Plaintiffs respectfully prays for relief as follows:
A. On NPKs First Claim for Relief, Count I, Second, Third, Fifth, Sixth, Eighth, and
Ninth Claims for Relief: judgment against Yeti and/or Counterclaim-Defendants Heagle,
Jackson, and/or Lilga for damages in an amount to be determined at trial;
B. On NPKs Tenth Claim for Relief and Eleventh Claim for Relief: judgment
against Yeti for damages in an amount to be determined at trial;
C. On NPKs First Claim for Relief, Count II, Fourth Claim for Relief, and Twelfth
Claim for Relief, Count I: judgment against Jackson for damages in an amount to be determined
at trial;

D. On NPKs First Claim for Relief, Counts III, IV, V, and VI: judgment against
Yeti and/or Heagle for damages in an amount to be determined at trial;
E. On NPKs Seventh Claim for Relief, judgment entered in NPKs favor and
against Yeti and Freq Water, Inc. declaring the transfer of Yetis assets to Freq Water, Inc. to be
void; and an order enjoining Yeti from transferring any assets to Freq Water, Inc. during the
pendency of this action;
F. On NPKs Twelfth Claim for Relief, Count II: judgment against Lilga for
damages in an amount to be determined at trial;
G. On NPKs Thirteenth Claim For Relief (Declaratory Judgment Count I),
judgment entered in NPKs favor and against Yeti declaring that NPK is the owner of the
trademarks for Mighty Wash, PM Wash, Power Wash, the Power Button, and the
Frequency Logo, not Yeti;
H. On NPKs Thirteenth Claim For Relief (Declaratory Judgment Count II),
judgment entered in NPKs favor and against Yeti declaring that NPK can use NPKs Marks to
sell plant washes from any source, sell other products using NPKs Marks, and Yeti cannot use
NPKs Marks to sell Yetis plant washes without NPKs written consent;
I. On NPKs Thirteenth Claim For Relief (Declaratory Judgment Count III),
judgment entered in NPKs and Counterclaim-Plaintiffs favor and against Yeti declaring that
Counterclaim-Plaintiffs did not knowingly make false declarations, in registering the trademark
for Mighty Wash, Power Wash, or Power Button marks with the U.S. Patent and
Trademark Office, U.S. Trademark Registration Nos. 4,121,193, 4,241,438, 4,346,896, and
4,400,010, and did not induce the trademark examiner to act or refrain from acting in reliance
upon any alleged false declarations;
J. On NPKs Thirteenth Claim For Relief (Declaratory Judgment Count IV),
judgment entered in NPKs favor and against Yeti declaring that Yeti breached or repudiated the
Distribution Agreement and its amendments prior to any alleged breach by NPK; Yetis
repudiation of the Distribution Agreement and its amendments excused NPKs performance;

NPK had reasonable grounds for insecurity with respect to Yetis performance of the
Distribution Agreement and its amendments; NPKs request for assurances suspended NPKs
obligation to perform under the Distribution Agreement and its amendments; the Distribution
Agreement and its amendments either required monthly minimum purchases by NPK and any
alleged breach of one or more installments did not substantially impair the value of the whole
contract, or required yearly minimum purchases by NPK and NPKs time for performance had
not expired; and Yeti wrongfully terminated the entire agreement;
K. On NPKs Fourteenth Claim For Relief (Injunctive Relief), an order permanently
enjoining Yeti and Counterclaim-Defendants, acting themselves or by and through Heagle,
Jackson, Lilga, Freq Water, Inc., Liquid Science Development, Green Planet, and/or Left Coast
Wholesale aka Geopot, from maliciously, or in bad faith, publishing false or misleading
statements about NPK and its products, and using NPKs confidential or proprietary records or
deriving any benefit therefrom;
L. Punitive damages as allowed by law;
M. Reasonable attorney fees, expenses, and costs incurred in this action;
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N. Prejudgment interest as allowed by law; and
O. For any other just relief.
DATED this 30th day of June, 2014.
MARKOWITZ, HERBOLD, GLADE
& MEHLHAF, P.C.

By: /s/ Steffan Alexander
Rene E. Rothauge, OSB #903712
Jeffrey M. Edelson, OSB #880407
Steffan Alexander, OSB #130258
Chad M. Colton, OSB #065774
(503) 295-3085
Of Attorneys for Defendants NPK, LLC and
Oregon Global Distribution, Inc.

KILMER VOORHEES & LAURICK PC

By: /s/ Robert B. Miller
Robert B. Miller, OSB #960068
(503) 224-0055
Of Attorneys for Defendant Orion Tang,
Richard Rowe, and Reny Townsend
YETI/390848_3


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