Five Star Gourmet Foods v. Fresh Express - Complaint

Case 4:19-cv-05611-PJH Document 1 Filed 09/05/19 Page 1 of 19
1 Christopher W. Arledge (Bar No. 200767)

Email: [email protected]
2 Nathaniel L. Dilger (Bar No. 196203)
3 Jenny S. Kim (Bar No. 282562)
4 ONE LLP
4000 MacArthur Boulevard
5 East Tower, Suite 500
Newport Beach, CA 92660
6 Telephone: (949) 502-2870
Facsimile: (949) 258-5081
7
Stephen G. Larson (Bar No. 145225)
8 Email: [email protected]
Dana M. Howard (Bar No. 280798)
9 Email: [email protected]
LARSON O’BRIEN LLP
10 555 S. Flower Street, Suite 4400
Los Angeles, CA 90071
11 Telephone: (213) 436-4888
Facsimile: (213) 623-2000
12
Attorneys for Plaintiffs,
13 FIVE STAR GOURMET FOODS, INC. and
DIRECT PACK, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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FIVE STAR GOURMET FOODS, Case No.
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INC., a California corporation, and COMPLAINT FOR:
21 DIRECT PACK, INC., a Delaware (1) FRAUD AND DECEIT;
corporation, (2) MISAPPROPRIATION OF
22 TRADE SECRETS;
(3) DESIGN PATENT
23 Plaintiffs INFRINGEMENT;
v. (4) ACTIVE INDUCEMENT OF
24 PATENT INFRINGEMENT;
(5) TRADE DRESS
25 FRESH EXPRESS, INC., a Delaware INFRINGEMENT;
corporation; PROSEAL AMERICA, (6) ACTIVE INDUCEMENT OF
26 TRADE DRESS
INC., a Virginia corporation; JOHN INFRINGEMENT;
27 OLIVO, an individual; KENNETH (7) COMMON LAW UNFAIR
DIVELY, an individual; FABIAN COMPETITION;
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COMPLAINT
PEREIRA, an individual; and DOES 1 (8) STATUTORY UNFAIR

1 COMPETITION;
through 10, inclusive, (9) BREACH OF CONTRACT;
2 AND
Defendants. (10) INTENTIONAL
3 INTERFERENCE WITH
CONTRACT
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DEMAND FOR JURY TRIAL
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COMPLAINT
1 Plaintiffs Five Star Gourmet Foods, Inc. (“Five Star”) and Direct Pack, Inc.
2 (“Direct Pack”) (collectively “Plaintiffs”), for their Complaint against Defendants
3 Fresh Express, Inc. (“Fresh Express”), ProSeal America, Inc. (“ProSeal”), and
4 DOES 1 through 10 (collectively, “Defendants”), allege as follows:
5 THE PARTIES
6 1. Plaintiff Five Star is a corporation organized under the laws of the state
7 of California, with its principal place of business at 3880 E. Ebony Street, Ontario,
8 California 91761.
9 2. Plaintiff Direct Pack is a corporation organized under the laws of the
10 state of Delaware, with its principal place of business at 1025 W. 8th Street, Azusa,
11 California 91702.
12 3. On information and belief, Fresh Express is a Delaware corporation
13 with a headquarters in Florida and a “principal office” in Salinas, California.
14 4. On information and belief, Proseal is a Virginia corporation
15 headquartered in Virginia.
16 5. On information and belief, Defendant John Olivo is the president of
17 Fresh Express and resides in Florida.
18 6. On information and belief, Defendant Kenneth Diveley is or was during
19 all relevant times herein, the Chief Executive Officer of Fresh Express and resides in
20 Florida.
21 7. On information and belief, Fabian Pereira is the Vice President,
22 Marketing for Fresh Express and resides in Illinois.
23 8. On information and belief, Defendants DOES 1 through 10 participated
24 in or ratified the conduct alleged herein. These DOES are unknown at the present
25 time but likely include parent or affiliate companies of Fresh Express as well as
26 individual executives or owners of such companies and third-party vendors.
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COMPLAINT
1 JURISDICTION AND VENUE

2 9. This Court has jurisdiction over the subject matter of this action
3 pursuant to 28 U.S.C. §§ 1331, 1338(a), and 1367.
4 10. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and (c)
5 and 1400(b).
6 11. On information and belief, this Court has personal jurisdiction over
7 Defendant Fresh Express, since Fresh Express resides and does business in this
8 District.
9 12. On information and belief, this Court has personal jurisdiction over
10 Defendant Proseal because Proseal does business in this District. Proseal also
11 contractually agreed to jurisdiction in venue in the State of California.
12 13. On information and belief, this Court has personal jurisdiction over the
13 individual defendants because all of them have done business in this District
14 including breaching contractual obligations in this District.
15 14. On information and belief, this Court has personal jurisdiction over the
16 DOE defendants, all of whom do business in this District.
17 GENERAL ALLEGATIONS
18 15. In 2016, Fabian Pereira, the Head of Marketing for Fresh Express, met
19 Five Star’s CEO, Tal Shoshan, at a Produce Marketing Association trade show.
20 Some months later, Pereira sent an email to Shoshan, saying his company was
21 interested in exploring potential business options. In follow up communications,
22 Pereira made clear that Fresh Express was interested in exploring how the two
23 companies could “develop a fruitful partnership together.”
24 16. The possibility of a partnership with Fresh Express was appealing to
25 Five Star, largely because Fresh Express is a subsidiary of Chiquita Brands, LLC, a
26 global produce company with vast contacts, resources, distribution networks, and
27 production capabilities. At the same time, Shoshan believed Fresh Express could
28 benefit from a relationship with Five Star. Fresh Express had sold prepackaged
4
COMPLAINT
1 salad bowls in certain retail outlets, but never produced their own USDA inspected,
2 prepackaged, value-added salad bowls, and Fresh Express had never particularly
3 succeeded in the space or held any sizable market share in the salad bowl segment.
4 So, when Pereira proposed that he, Olivo, and Diveley meet with Tal privately and
5 tour Five Star’s production facilities as part of these partnership discussions, Five
6 Star agreed.
7 17. The Fresh Express visitors visited and toured Five Star’s Florida
8 facility in May of 2017. All of the visitors signed non-disclosure agreements before
9 entering the facility, as is required of all visitors to Five Star. Prior to the tour,
10 Pereira, Olivo and Diveley met with Tal Shoshan and asked poignant questions
11 about Five Star’s marketing strategy, product composition, packaging and
12 manufacturing logistics. After this meeting, they requested and Five Star provided
13 them an extensive tour of its manufacturing facility. Five Star showed them its
14 production process, how it staffs its production lines, the equipment and equipment
15 vendors it uses, and provided a comprehensive view of FiveStar’s entire salad bowl
16 production process. For example, only Five Star knows how to set up its assembly
17 lines and what order of operations will most efficiently make its product. Only Five
18 Star knows the complicated order of machinery and live personnel that provides its
19 time-tested method for efficiently producing its salads. None of this information is
20 public; all of it is proprietary.
21 18. Information about Five Star’s production processes, staffing, and
22 equipment are valuable, in significant part, because they are secret. Five Star’s food
23 quality, recipes, and distinctive packaging have revolutionized the ready-made salad
24 industry. A company that wishes to get into the ready-made salad industry could
25 save money, ramp up much more quickly, and compete with Five Star far more
26 effectively with such information.
27 19. This is precisely what Fresh Express did. Very shortly after Fresh
28 Express toured Five Star’s facility, Henrique Cutrale, of the Cutrale family that
5
COMPLAINT
1 owns Fresh Express and parent company Chiquita, met with Tal Shoshan and made
2 it clear that Fresh Express was not interested in any strategic partnership with Five
3 Star. He said that Chiquita/Fresh Express was strictly a family-owned business and
4 would never, under any circumstances, partner with others. Instead, he said that his
5 company was only willing to discuss an outright purchase of Five Star’s
6 prepackaged salad business.
7 20. Shoshan was not interested in selling any part of Five Star, and
8 explained this to Cutrale. Even so, Cutrale followed up a month later, at the United
9 Fresh Trade Show, invited Tal to dinner, and strongly encouraged him to reconsider.
10 On June 27, 2018, at another trade show in Chicago, Cutrale told Shoshan that if he
11 didn’t want to sell the company, he didn’t have to worry about it. Cutrale said that
12 his father had given him $80 million to purchase brand-new equipment and that he
13 would simply take Shoshan’s business away from him.
14 21. This is what Fresh Express has attempted to do. Fresh Express has
15 used Five Star’s secret business information and publicly available information to
16 copy every aspect of Five Star’s patented salad bowl products, from the added extra
17 toppings which FiveStar was known for, to the type of ingredients, to the packaging
18 and labeling design which made Simply Fresh a very successful product line. Fresh
19 Express virtually duplicated the look of Five Star’s product line, instead of using
20 their previous (and failing) look and feel, in order to misappropriate Five Star’s
21 goodwill and customer base as the leading premium salad brand. Fresh Express’s
22 goal was to copy the product line and then sell it at a lower cost to quickly benefit
23 from the fruits of Five Stars’ many years of blood, sweat and tears.
24 22. Defendant Proseal has long been Five Star’s packaging machinery
25 supplier. In fact, Five Star was one of the first if not the first of Proseal’s salad
26 processor clients, and Five Star, worked with Proseal to substantially improve the
27 packaging and create the gold standard that Proseal now uses to attract clients.
28 Proseal is subject to a non-disclosure agreement as part of its relationship with Five
6
COMPLAINT
1 Star, a true and correct copy of which is attached hereto as Exhibit. 1. As part of its
2 efforts to misappropriate Five Star’s products and packaging, Fresh Express
3 convinced Proseal to sell them similar equipment and create a manufacturing tool
4 set that is virtually indistinguishable from the tool set used for Five Star’s packaging
5 equipment. As a result, Fresh Express can make packaging that is virtually
6 indistinguishable from Five Star’s, and Fresh Express is able to do so without
7 incurring any of the normal time and costs of developing new packaging and is
8 therefore able to enjoy the fruits of Five Star’s labor immediately. Also as a result,
9 Fresh Express confuses consumers into believing they are purchasing products
10 manufactured by Five Star or a company affiliated with Five Star.
11 FIRST CAUSE OF ACTION
12 (Fraud and Deceit)
13 (Against Defendants Fresh Express and DOES 1-3)
14 23. Plaintiffs reallege and incorporate by reference the allegations set forth
15 in paragraphs 1-22 above, as if set forth verbatim herein.
16 24. Fabian Pereira of Fresh Express represented to Five Star in writing and
17 verbally than Fresh Express was interested in entering into a strategic partnership
18 with Five Star. Examples of Pereira’s representations are attached hereto as Exhibit
19 2. Pereira made this representation in order to induce Five Star to permit Fresh
20 Express to tour its facilities and get non-public information about its production
21 processes, staffing, and equipment.
22 25. In reality, Fresh Express was never interested in partnering with Five
23 Star. As Fresh Express’s owner later made clear, Fresh Express does not enter into
24 partnerships with non-relatives. Fresh Express was interested in possibly acquiring
25 Five Star and, if it could not acquire Five Star, in competing directly with Five Star
26 by using any means necessary. Pereira’s representations to the contrary were false.
27 26. Pereira made his false representations about exploring a partnership
28 with Five Star in order to gain access to Five Star’s non-public information. Pereira
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COMPLAINT
1 knew that if he would have shared his true intentions with Shoshan, Shoshan would
2 not have allowed him and his group the opportunity to access the facility or gain
3 access to Five Star’s confidential trade secrets. Five Star relied on Pereira’s
4 statement in permitting Fresh Express to tour the facility and access its non-public
5 information.
6 27. As a result of Pereira’s false statements, Five Star has now given its
7 sensitive, non-public information to a direct competitor. That information allowed
8 Fresh Express to enter the marketplace more quickly and produce more efficiently,
9 at higher quality, and at a lower cost.
10 28. Five Star has therefore been damaged in an amount to be proven at
11 trial. Five Star also seeks punitive damages in an amount necessary to punish Fresh
12 Express and deter Fresh Express and others in the future.
13 SECOND CAUSE OF ACTION
14 (Misappropriation of Trade Secrets)
15 (Against Defendants Fresh Express, Proseal, and DOES 4-6)
16 29. Plaintiff hereby incorporates by reference each and every allegation in
17 paragraphs 1-28 above as if set forth fully herein.
18 30. Plaintiff has non-public information about its business – primarily
19 information about its production processes, staffing, equipment, recipes, and
20 vendors – that is valuable, at least in part, because it is not known by others in the
21 ready-made salad industry.
22 31. As a trailblazer in the industry that is known for its product innovation
23 and distinctive packaging, Five Star’s business information would be extremely
24 valuable to any would-be competitors. Thus, Five Star takes reasonable precautions
25 to protect its information, for example, by making information accessible only to
26 employees who need it for their job duties, by requiring all employees to sign
27 written agreements not to disclose Five Star’s information, and by requiring all
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COMPLAINT
1 visitors to its facilities, including its key and potential vendors who would have
2 access to this information, to sign strict non-disclosure agreements.
3 32. Fresh Express convinced Five Star to provide its non-public, valuable
4 information by misrepresenting its intention to partner with Five Star.
5 33. As a result of Pereira’s false statements, Five Star has now given its
6 sensitive, non-public information to a direct competitor. That information allowed
7 Fresh Express to enter the marketplace more quickly and produce more efficiently
8 and at higher quality than would ordinarily be possible in such a short period of
9 time.
10 34. In addition, Fresh Express convinced Proseal to closely duplicate the
11 tool set used to manufacture Five Star’s distinctive packaging and, with insignificant
12 changes, provide a virtually indistinguishable tool set to Fresh Express. Proseal did
13 so in violation of its non-disclosure agreement with Five Star and in violation of
14 industry professional and ethical practices. As a result, Fresh Express is able to
15 make packaging that is virtually indistinguishable from Five Star’s distinctive
16 packaging, and Fresh Express did not have to spend the time and money that it
17 would ordinarily have to spend to create and test such packaging.
18 35. Five Star has therefore been damaged in an amount to be proven at
19 trial. Five Star also seeks punitive damages in an amount necessary to punish Fresh
20 Express and Proseal and deter them and others from such misconduct in the future.
21 THIRD CAUSE OF ACTION
22 (Design Patent Infringement)
24 36. Plaintiffs reallege and incorporate by reference the allegations set forth
25 in paragraphs 1-35 above, as if set forth verbatim herein.
26 37. Plaintiffs Five Star and Direct Pack are co-owners of U.S. Design Pat.
27 Nos. 698,665 and 698,666, copies of which are attached hereto as Exhibits 3 and 4.
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9
COMPLAINT
1 38. Fresh Express has sold and offered for sale to retailers and the general
2 public packaging, to which the patented design, or a colorable imitation thereof, has
3 been applied, and has thereby infringed the ‘665 and ‘666 patents. Photographs
4 showing the infringing products are attached hereto as Exhibit 5.
5 39. Certain of the Doe Defendants have also infringed the ‘665 and ‘666
6 patents by producing the infringing packaging for Fresh Express.
7 40. Five Star has given Fresh Express notice of the infringement through a
8 demand letter, a copy of which is attached hereto as Exhibit 6, and through this
9 complaint.
10 41. Five Star and Direct Pack have been, and continue to be, damaged by
11 such infringement of the ‘665 and ‘666 patents.
12 FOURTH CAUSE OF ACTION
13 (Active inducement of infringement)
14 (Against Defendant Proseal and DOES 7-10)
15 42. Plaintiff Five Star realleges and incorporates by reference the
16 allegations set forth in paragraphs 1-41 above, as if set forth verbatim herein.
17 43. Defendant Proseal has manufactured and sold to Fresh Express certain
18 machinery, including a manufacturing tool set, that is based on the tool set that
19 Proseal created for Five Star and which is intentionally designed to allow Fresh
20 Express to re-create almost exactly Five Star’s patented design as set forth in the
21 ‘665 and ‘666 patents.
22 44. Proseal provided the machinery and tool sets with the express intention
23 of aiding Fresh Express in its patent infringement. Fresh Express has used Proseal’s
24 machinery and tool sets in order to accomplish its patent infringement.
25 45. Certain of the Doe Defendants have also actively induced the
26 infringement of the ‘665 and ‘666 patents by aiding in creating the infringing tool
27 sets and directing Fresh Express in how to use the tool sets and machinery to
28 achieve the desired infringement.
10
COMPLAINT
1 46. Five Star has given Proseal notice of the infringement through a
2 demand letter, a copy of which is attached hereto as Exhibit 7, and through this
3 complaint.
5 such infringement of the ‘665 and ‘666 patents.
6 FIFTH CAUSE OF ACTION
7 (Trade Dress Infringement)
11 49. Five Star sells a line of high quality pre-packaged fresh salad products
12 (“Five Star Products”). Examples of such products and their packaging is shown in
13 Exhibit 8 hereto.
14 50. In connection with its Five Star Products line, Plaintiff Five Star has
15 developed a trade dress which is essential to its business and to customers’
16 identification of Five Star as the source of the products.
17 51. Five Star has made a substantial investment in the development of the
18 consistent appearance of its popular “Simply Fresh Salads®” Products and product
19 packaging to create what has become distinctive indicia of Five Star as the source of
20 the Five Star Products.
21 52. The distinctive Five Star Products, and their packaging design
22 constitute protectable trade dress. On information and belief, this trade dress in not
23 only inherently distinctive, but has also established secondary meaning in the
24 marketplace such that customers have come to associate it with Five Star.
25 53. The distinctive non-functional appearance of Five Star’s protectable
26 and trade dress includes at least the following elements:
27 a. A rounded square transparent plastic bowl containing salad
28 ingredients, particularly lettuce or other greens;
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COMPLAINT
1 b. A companion transparent plastic insert containing a central

2 receptacle to hold the salad dressing cup and several arcuate, segmental receptacles,
3 positioned circumferentially around the central receptacle, each of the receptacles
4 containing various colorful salad toppings;
5 c. An elongated generally rectangular plastic band overwrap or
6 sleeve the overwrap or sleeve being tensioned around the bowl, with said plastic
7 band or sleeve overwrap containing a particular look and feel through its use of font,
8 colors and overall design that provides a vertical billboard as well as allowing for all
9 the salad toppings to be viewed without being obstructed by the band or sleeve
10 54. On information and belief, Fresh Express has offered for sale and sold
11 pre-packaged products, as exemplified in Exhibit 9 hereto that infringe on Five
12 Star’s trade dress.
13 55. Five Star’s and Fresh Express’s pre-packaged salad products would
14 appeal to, and are directed to, the same class of consumers, and are displayed at the
15 retail level in close proximity to each other.
16 56. Fresh Express’s infringing products are a basic duplication of the
17 existing successful Five Star salad line, have caused, and are likely to continue
18 causing, consumer confusion or mistake by falsely suggesting that Fresh Express’s
19 infringing products are connected with, sponsored by, affiliated with, approved by,
20 or related to Five Star.
21 57. Fresh Express’s sale of infringing products constitutes trade dress
22 infringement in violation of 15 U.S.C. §1125(a).
23 58. Fresh Express’s infringing activities have caused, and unless enjoined
24 by this Court, will continue to cause, irreparable injury and other damage to Five
25 Star’s business reputation and to the goodwill associated with Plaintiff Five Star’s
26 trade dress, including but not limited to, diversion of customers, lost sales and lost
27 profits. Plaintiff Five Star has no adequate remedy at law.
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COMPLAINT
1 SIXTH CAUSE OF ACTION

2 (Active inducement of trade dress infringement)
3 (Against Defendants Proseal and DOES 7-10)
6 60. Defendant Proseal was aware of Five Star’s use in commerce of its
7 distinctive trade dress packaging. Proseal nevertheless supplied Defendant Fresh
8 Express with machinery, including a manufacturing tool set, that is based on the tool
9 that Proseal created for Five Star and which is intentionally designed to allow Fresh
10 Express to re-create almost exactly Five Star’s distinctive, trade-dress packaging.
11 61. Proseal provided this machinery with the express intention of aiding
12 Fresh Express in its trade dress infringement. Fresh Express has used Proseal’s
13 machinery in order to accomplish its trade dress infringement.
14 62. Certain of the Doe Defendants have also actively induced the
15 infringement by aiding in creating the infringing tool set and directing Fresh Express
16 in how to use the tool set to achieve the desired infringement.
17 63. Five Star has given Proseal notice of the trade dress infringement
18 through a demand letter, a copy of which is attached hereto as Exhibit 7, and
19 through this complaint.
21 said trade dress infringement.
22 SEVENTH CAUSE OF ACTION
23 (Common Law Unfair Competition)
24 (Against Defendants Fresh Express, Proseal, and DOES 7-10)
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COMPLAINT
1 66. Fresh Express and Proseal were aware of the Five Star products and
2 Five Star’s prior use of the Five Star trade dress and adopted and used its infringing
3 packaging layout in disregard of Plaintiff Five Star’s prior use, rights and reputation.
4 67. Fresh Express and Proseal had access to the Five Star products
5 packaging design that it misappropriated from Five Star.
6 68. Fresh Express and Proseal’s infringing use of Five Star’s packaging
7 design has resulted in the misappropriation of, and trading upon, Five Star’s
8 goodwill and business reputation at the expense of Plaintiff Five Star, and without
9 any expense to Fresh Express. The effect of Fresh Express’s misappropriation of the
10 goodwill symbolized by the Plaintiff Five Star’s packaging design is to unjustly
11 enrich Fresh Express, damage Plaintiff Five Star, and confuse and/or deceive the
12 public.
13 69. Fresh Express and Proseal’s conduct constituted, and continues to
14 constitute, unfair competition with Plaintiff Five Star, and has caused, and will
15 continue to cause, irreparable injury to Five Star’s goodwill and reputation unless
16 enjoined by this Court. Five Star has no adequate remedy at law.
17 EIGHTH CAUSE OF ACTION
18 (Statutory Unfair Competition – Cal. Bus. & Prof. Code § 17200)
19 (Against All Defendants)
20 70. Five Star realleges and incorporates by reference the allegations set
21 forth in paragraphs 1-69 above, as if set forth verbatim herein.
22 71. Fresh Express’s use of a copy, variation, simulation or colorable
23 imitation of Plaintiff Five Star’s package design in connection with its sale of
24 competing prepackaged salad products constitutes a deceptive trade practice by
25 creating a likelihood of confusion or of misunderstanding as to the source,
26 sponsorship, approval, or certification of Fresh Express’s goods and/or services, or
27 by creating a likelihood of confusion or of misunderstanding as to affiliation,
28 connection, or association with, or certification by, Five Star.
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COMPLAINT
1 72. Fresh Express’s use of a tool set that is virtually indistinguishable from
2 Five Star’s manufacturing tool set to make its packaging is also a deceptive trade
3 practice that constitutes a deceptive trade practice by creating a likelihood of
4 confusion or of misunderstanding as to the source, sponsorship, approval, or
5 certification of Fresh Express’s goods and/or services, or by creating a likelihood of
6 confusion or of misunderstanding as to affiliation, connection, or association with,
7 or certification by, Five Star.
8 73. Fresh Express’s acts are in violation of California’s Unfair Competition
9 Law. Cal. Bus. & Prof. Code § 17200.
10 74. Proseal, the individual defendants, and the DOE defendants have taken
11 and continue to take steps to aid Fresh Express in its violation of Section 17200.
12 75. As a consequence of the foregoing, Fresh Express has been unjustly
13 enriched, Five Star has suffered and will continue to suffer irreparable harm and
14 loss, and Five Star has no adequate remedy at law.
15 NINTH CAUSE OF ACTION
16 (Breach of contract)
17 (Against Defendants Proseal, Olivo, Diveley, Pereira, and Fresh Express)
20 77. Defendants Proseal, Olivo, Diveley, and Pereira all have entered into
21 non-disclosure agreements with Five Star related to Five Star’s confidential
22 information. Proseal’s NDA is attached hereto as Exhibit 1. Olivo’s NDA is
23 attached hereto as Exhibit 10. Diveley’s NDA is attached hereto as Exhibit 11.
24 Pereira’s NDA is attached hereto as Exhibit 12. Olivo, Diveley, and Pereira entered
25 into those NDA’s as part of their job duties for Fresh Express.
26 78. All of these defendants have breached their NDA’s by providing Five
27 Star’s confidential information to Fresh Express for its use in competition against
28 Five Star and by not destroying or returning to Five Star its confidential information
15
COMPLAINT
1 as required pursuant to the NDA’s. Olivo, Diveley, and Pereira breached their
2 NDA’s as part of their job duties for Fresh Express and for the benefit of Fresh
3 Express.
4 79. Therefore, Fresh Express should be deemed to be a signatory to the
5 NDA’s of Olivo, Diveley, and Pereira.
6 80. Five Star has performed all of its obligations under the various NDA’s
7 or has been excused from performing as a result of defendants’ material breaches of
8 those agreements.
9 81. Five Star has been damaged by defendants’ breaches in an amount to
10 be proven at trial.
11 TENTH CAUSE OF ACTION
12 (Intentional interference with contract)
13 (Against Defendant Fresh Express)
16 83. Defendant Fresh Express was aware of the NDA’s set forth above with
17 Defendants Proseal, Olivo, Diveley, and Pereira.
18 84. Defendant Fresh Express intentionally took steps to convince Proseal,
19 Olivo, Diveley, and Pereira to breach their NDA’s with Five Star.
20 85. To the extent that the Olivo, Diveley, and Pereira NDA’s are not
21 deemed to be contracts entered into by Fresh Express, then Fresh Express has
22 interfered with those agreements in its conduct. Fresh Express has also interfered
23 with Proseal’s contract with Five Star.
24 86. Five Star has been damaged by Fresh Express’s intentional interference
25 with the NDA’s between Five Star and Proseal, Olivo, Diveley, and Pereira. Five
26 Star seeks damages in an amount to be proven at trial.
27 87. Because Fresh Express’s conduct was willful, oppressive, and
28 malicious, Five Star also seeks punitive damages in an amount necessary to punish
16
COMPLAINT
1 Fresh Express and deter Fresh Express and others from engaging in such misconduct
2 in the future.
3
4 PRAYER FOR RELIEF
5 WHEREFORE, Plaintiffs Five Star and Direct Pack respectfully request relief
6 and pray for judgment as follows:
7 1. Temporarily, preliminarily, and permanently enjoining Defendants,
8 their employees, agents, officers, directors, attorneys, successors, affiliates,
9 subsidiaries and assigns, and all those in active concert and participation with
10 Defendants, from infringing the ‘665 and ‘666 Patents and Five Star’s trade dress;
11 2. Temporarily, preliminarily, and permanently enjoining Defendants,
12 their employees, agents, officers, directors, attorneys, successors, affiliates,
13 subsidiaries and assigns, and all those in active concert and participation with
14 Defendants, from any further possession or use of Five Star’s trade secrets;
15 3. Awarding Plaintiffs Five Star and Direct Pack their actual damages in
16 an amount to be proved at trial and/or as otherwise provided by law;
17 4. Awarding Plaintiffs Five Star and Direct Pack the total profit realized
18 by Defendants as a result of the infringement of the ‘665 and ‘666 Patents, the use
19 of Five Star’s trade dress, and the possession and use of Five Star’s trade secrets;
20 5. Awarding Plaintiffs Punitive Damages, in an amount determined by the
21 finder of fact;
22 6. Awarding Plaintiffs their attorneys’ fees;
23 7. Awarding Plaintiffs prejudgment interest;
24 / / /
25 / / /
26 / / /
27 / / /
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COMPLAINT
1 8. Awarding Plaintiffs the costs of suit incurred herein; and

2 9. Awarding such other and further relief as is just and proper.
3
4 Dated: September 5, 2019 ONE LLP
5
6 By: /s/ Christopher W. Arledge
Christopher W. Arledge
7 Nathaniel L. Dilger
8 Jenny S. Kim
9 -and-
10 LARSON O’BRIEN LLP
11 Stephen G. Larson
12 Dana M. Howard
13 Attorneys for Plaintiffs,

FIVE STAR GOURMET FOODS, INC.
14 and DIRECT PACK, INC.
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COMPLAINT
1 DEMAND FOR JURY TRIAL

2 Plaintiffs hereby demand a trial by jury of all issues so triable under the law.
3
4 Dated: September 5, 2019 ONE LLP
5
6 By: /s/ Christopher W. Arledge
Christopher W. Arledge
7 Nathaniel L. Dilger
8 Jenny S. Kim
9 -and-
10 LARSON O’BRIEN LLP
11 Stephen G. Larson
12 Dana M. Howard
13 Attorneys for Plaintiffs,

FIVE STAR GOURMET FOODS, INC.
14 and DIRECT PACK, INC.
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COMPLAINT
Case 4:19-cv-05611-PJH Document 1-1 Filed 09/05/19 Page 1 of 7
EXHIBIT 1
EXHIBIT 2
From: Tal Shoshan <[email protected]>

Sent: Tuesday, August 27, 2019 5:35 PM
To: Kevin Rockoff
Subject: FW: Meetings

Thank you,
Tal Shoshan
Chief Executive Officer
m m m m V
FiveStar Gourmet Foods, Inc.

3880 E. Ebony Street | Ontario, CA 91761
T 909 390 0032 | F 909 390 0095
fivestargourmetfoods.com

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is privileged, confidential, and exempt from disclosure under applicable law. You are hereby notified that any dissemination, duplication or
distribution of this transmission by someone other than the intended addressee or its designated agent is strictly prohibited. If your receipt of
this e-mail is in error, please notify me immediately by calling (909)-390-0032.
From: Fabian Pereira [mailto:[email protected]]
Sent: Wednesday, May 03, 2017 1:04 PM
To: Tal Shoshan
Subject: Meetings

Tal,

Thanks for the wonderful conversation yesterday. I have spoken to our owners and leadership team. They would like to
continue this conversation with you and see how we develop a fruitful partnership together.

1
Ken Dively our CEO is in California all of next week. He would like the opportunity to visit your place and see your plants
in Ontario on Thursday, 11th May afternoon if possible.

We can then meet in your office in Naples, Florida on Thursday, May 18. Ken our CEO, John Olivio our CFO and myself
will attend.
We would then invite you to visit our offices on May 19 in Orlando. Henrique Cutrale the owner will be back from
London and spend rest of the day with us and we can explore details of the relationship.

Please let us know if this schedule works for you.

Kind regards…Fabian
Fabian Pereira | Head of Marketing
Fresh Express Incorporated | +1‐407‐612‐5150 | +1‐407‐335‐2147
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2
EXHIBIT 3
EXHIBIT 4
EXHIBIT 5
EXHIBIT 6

East Tower, Suite 500
Christopher Arledge 949.502.2870 Tel
949.502.2872 Direct Dial 949.258.5081 Fax
[email protected] www.OneLLP.com
September 5, 2019
VIA EMAIL ([email protected])
Babak Kusha
Kilpatrick Townsend
Two Embarcadero Center, Suite 1900
San Francisco, CA 94111
Re: Five Star Gourmet Foods, Inc.
Dear Mr. Kusha:
My firm represents Five Star Gourmet Foods. I am writing in response to your

September 3, 2019 letter addressed to Tal Shoshan, Five Star’s CEO.
I have attached a copy of a complaint that Five Star filed today in the Northern District of
California. Because you stated in your letter that Fresh Express takes allegations of IP
infringement seriously and would look into any such allegations, I am providing a courtesy copy
of this complaint and will not attempt formal service until we have had an opportunity to speak.
Please let me know whether you will be available to discuss this matter tomorrow or Monday.
Sincerely,
Christopher Arledge, Esq.

EXHIBIT 7

East Tower, Suite 500
Christopher Arledge 949.502.2870 Tel
949.502.2872 Direct Dial 949.258.5081 Fax
[email protected] www.OneLLP.com
August 28, 2019
VIA EMAIL
Gari Wyatt
CEO
Proseal America Inc.
7611 Whitepine Road
Richmond, VA 23237
Re: FiveStar Gourmet Foods
Dear Mr. Wyatt:
My firm represents FiveStar Gourmet Foods. I believe you already know from your
discussion with Tal Shoshan that FiveStar is concerned that its intellectual property is being
infringed in salad products currently being sold by Fresh Express. Specifically, the packaging
being used by Fresh Express on its recently-established, competing line of “Gourmet Kits” salads,
which are currently being sold in Publix Lakeland region, infringes on two FiveStar patents, U.S.
Pat. Nos. D698,665 S and D698,666 S, which cover the ornamental design of a “Bowl and Tray Unit
Assembly.” I have attached a copy of that patent to this letter. The packaging also infringes on
FiveStar’s trade dress rights acquired through its successful line of “Simply Fresh” salads. I have
included photographs of the FiveStar and Fresh Express packaging so you can see the striking
similarities.
As you can see, similarities between the two designs include the exact same bowl shape as
FiveStar’s patented design, the same compartmentalized insert, and the same center mounted
dressing cup location, as well as almost identical overwraps, and similar colors, fonts, and
arrangement of design elements. The similarities between FiveStar’s established packaging and
the packaging on the new Fresh Express “Gourmet Kits” salads are such that consumers will be
confused and will believe the Fresh Express product is associated with or produced by FiveStar.
FiveStar therefore has no choice but to take legal action to end this infringement.
While Proseal has played a major role in assisting Fresh Express’s infringement, we seek
an amicable resolution with your company. Mr. Shoshan and FiveStar value their longstanding
relationship with Proseal and hope that it can continue for many years to come. We ask that you
immediately recall and destroy all infringing tools – I understand that you agreed on the phone
with Mr. Shoshan to do just that – and provide us with proof of destruction within seven days.
Beverly Hills • Newport Beach• San Diego

Gari Wyatt
August 28, 2019
Page 2
Please contact me immediately if you have any questions.
Sincerely,
Christopher Arledge, Esq.

EXHIBIT 8
NONDISCLOSURE AGREEMENT
In connection with a proposed business relationship, Five Star Gourmet Foods of Florida
(“Company”) has allowed you (John Olivo) access, or may allow you access, to business, technical
or other information, materials and/or ideas (“Proprietary Information,” which term shall include,
without limitation, anything you learn or discover as a result of exposure to or analysis of any
Proprietary Information).
In consideration of any disclosure and any negotiations concerning the proposed business
relationship, you agree as follows:
1. You will hold in confidence and will not possess or use (except as required to evaluate the
proposed business relationship within the U.S.) or disclose any Proprietary Information except
information you can document (a) is in the public domain through no fault of yours, (b) was
properly known to you, without restriction, prior to disclosure by Company or (c) was properly
disclosed to you by another person without restriction. You will not reverse engineer or attempt to
derive the composition or underlying information, structure or ideas of any Proprietary
Information. The foregoing does not grant you a license in or to any of the Proprietary
Information.
2. If you decide not to proceed with the proposed business relationship or if asked by Company,
you will promptly return all Proprietary Information and all copies, extracts and other objects or
items in which Proprietary Information may be contained or embodied.
3. You will promptly notify Company of any unauthorized release, disclosure or use of Proprietary
Information.
4. You understand that this Agreement does not obligate Company to disclose any information or
negotiate or enter into any agreement or relationship. You will strictly abide by any and all
instructions and restrictions provided by Company from time to time with respect to Proprietary
Information or Company systems. You will ensure the security of any facilities, machines,
accounts, passwords and methods you use to store any Proprietary Information or to access
Company systems and ensure that no other person has or obtains access thereto.
5. The terms of this Agreement will remain in effect with respect to any particular Proprietary
Information until you can document that such Proprietary Information falls into one of the
exceptions stated in Paragraph 1 above.
6. You acknowledge and agree that due to the unique nature of the Proprietary Information, any
breach of this agreement would cause irreparable harm to Company for which damages are not
an adequate remedy, and that Company shall therefore be entitled to equitable relief in addition
to all other remedies available at law.
7. This Agreement is personal to you, is nonassignable by you, is governed by the internal laws of
the State and may be modified or waived only in writing signed by both parties. If any provision of
this Agreement is found to be unenforceable, such provision will be limited or deleted to the
minimum extent necessary so that the remaining terms remain in full force and effect. The
prevailing party in any dispute or legal action regarding the subject matter of this Agreement
shall be entitled to recover attorneys’ fees and costs.
Acknowledged and agreed on May 17, 2017:
SIGNATURE
John Olivo May 17, 2017

NAME DATE
EXHIBIT 9
(“Company”) has allowed you (Kenneth Diveley) access, or may allow you access, to business,
technical or other information, materials and/or ideas (“Proprietary Information,” which term
shall include, without limitation, anything you learn or discover as a result of exposure to or
analysis of any Proprietary Information).
Information.
Information.
SIGNATURE
Kenneth Diveley May 17, 2017

NAME DATE
EXHIBIT 10
(“Company”) has allowed you (Fabian Pereira) access, or may allow you access, to business,
technical or other information, materials and/or ideas (“Proprietary Information,” which term
shall include, without limitation, anything you learn or discover as a result of exposure to or
analysis of any Proprietary Information).
Information.
Information.
SIGNATURE
Fabian Pereira May 17, 2017

NAME DATE
JS-CAND 44 (Rev. 07/19) Case 4:19-cv-05611-PJH Document
CIVIL COVER 1-11 Filed 09/05/19 Page 1 of 1
SHEET
The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law,
except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of
Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
FIVE STAR GOURMET FOODS, INC., a California corporation, and FRESH EXPRESS, INC., a Delaware corporation; PROSEAL
DIRECT PACK, INC., a Delaware corporation, AMERICA, INC., a Virginia corporation; JOHN OLIVO, an
individual; KENNETH DIVELY, an individual; FABIAN PEREIRA,
an individual; and DOES 1 through 10, inclusive,
(b) County of Residence of First Listed Plaintiff San Bernardino County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
One LLP Larson O’Brien LLP
4000 MacArthur Blvd., East 555 S. Flower Street, Suite 4400
Tower, Suite 500 Los Angeles, CA 90071
Newport Beach, CA 92660 (213) 436-4888
(949) 502-2870
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government Plaintiff 3 Federal Question PTF DEF PTF DEF
(U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government Defendant 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
(Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6
Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure of 422 Appeal 28 USC § 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury – Product Property 21 USC § 881 423 Withdrawal 28 USC 376 Qui Tam (31 USC
Liability 690 Other § 157 § 3729(a))
130 Miller Act 315 Airplane Product Liability
320 Assault, Libel & Slander 367 Health Care/ LABOR PROPERTY RIGHTS 400 State Reapportionment
140 Negotiable Instrument Pharmaceutical Personal
330 Federal Employers’ 710 Fair Labor Standards Act 820 Copyrights 410 Antitrust
150 Recovery of Injury Product Liability
Liability 720 Labor/Management 830 Patent 430 Banks and Banking
Overpayment Of 368 Asbestos Personal Injury
Veteran’s Benefits 340 Marine Relations 450 Commerce
Product Liability 835 Patent–Abbreviated New
345 Marine Product Liability PERSONAL PROPERTY 740 Railway Labor Act Drug Application 460 Deportation
151 Medicare Act
350 Motor Vehicle 370 Other Fraud 751 Family and Medical 470 Racketeer Influenced &
152 Recovery of Defaulted 840 Trademark
Student Loans (Excludes 355 Motor Vehicle Product 371 Truth in Lending Leave Act Corrupt Organizations
Liability SOCIAL SECURITY
Veterans) 380 Other Personal Property 790 Other Labor Litigation 480 Consumer Credit
360 Other Personal Injury 861 HIA (1395ff)
153 Recovery of Damage 791 Employee Retirement 485 Telephone Consumer
362 Personal Injury-Medical 385 Property Damage Product 862 Black Lung (923)
Overpayment Income Security Act Protection Act
Malpractice Liability 863 DIWC/DIWW (405(g))
of Veteran’s Benefits IMMIGRATION 490 Cable/Sat TV
160 Stockholders’ Suits 864 SSID Title XVI 850 Securities/Commodities/
CIVIL RIGHTS PRISONER PETITIONS 462 Naturalization
190 Other Contract 865 RSI (405(g)) Exchange
Application
440 Other Civil Rights HABEAS CORPUS
195 Contract Product Liability 465 Other Immigration 890 Other Statutory Actions
441 Voting 463 Alien Detainee Actions FEDERAL TAX SUITS 891 Agricultural Acts
196 Franchise
442 Employment 510 Motions to Vacate
REAL PROPERTY 870 Taxes (U.S. Plaintiff or 893 Environmental Matters
443 Housing/ Sentence
Defendant) 895 Freedom of Information
210 Land Condemnation Accommodations 530 General
871 IRS—Third Party 26 USC Act
220 Foreclosure 445 Amer. w/Disabilities- 535 Death Penalty § 7609 896 Arbitration
230 Rent Lease & Ejectment Employment 899 Administrative Procedure
OTHER
240 Torts to Land 446 Amer. w/Disabilities-Other Act/Review or Appeal of
540 Mandamus & Other Agency Decision
245 Tort Product Liability 448 Education
550 Civil Rights 950 Constitutionality of State
290 All Other Real Property 555 Prison Condition Statutes
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District (specify) Litigation–Transfer Litigation - Direct File
VI. CAUSE OF Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
ACTION 15 U.S.C. § 1125
Brief description of cause:
Trade Dress Infringement
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ To be determined CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, Fed. R. Civ. P. JURY DEMAND: Yes No
VIII. RELATED CASE(S), JUDGE DOCKET NUMBER
IF ANY (See instructions):
IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)
(Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE
DATE September 5, 2019 SIGNATURE OF ATTORNEY OF RECORD /s/ Christopher W. Arledge
American LegalNet, Inc.

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Case 4:19-cv-05611-PJH Document 1 Filed 09/05/19 Page 1 of 19

1 Christopher W. Arledge (Bar No. 200767)

PEREIRA, an individual; and DOES 1 (8) STATUTORY UNFAIR

1 JURISDICTION AND VENUE

1 b. A companion transparent plastic insert containing a central

1 SIXTH CAUSE OF ACTION

1 8. Awarding Plaintiffs the costs of suit incurred herein; and

13 Attorneys for Plaintiffs,

1 DEMAND FOR JURY TRIAL

13 Attorneys for Plaintiffs,

From: Tal Shoshan <[email protected]>

FiveStar Gourmet Foods, Inc.

4000 MacArthur Boulevard

Re: Five Star Gourmet Foods, Inc.

Dear Mr. Kusha:

My firm represents Five Star Gourmet Foods. I am writing in response to your

Christopher Arledge, Esq.

4000 MacArthur Boulevard

Re: FiveStar Gourmet Foods

Dear Mr. Wyatt:

Beverly Hills • Newport Beach• San Diego

Please contact me immediately if you have any questions.

Christopher Arledge, Esq.

Acknowledged and agreed on May 17, 2017:

John Olivo May 17, 2017

Acknowledged and agreed on May 17, 2017:

Kenneth Diveley May 17, 2017

Acknowledged and agreed on May 17, 2017:

Fabian Pereira May 17, 2017

American LegalNet, Inc.

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