Ameritox

Preliminary Injunction Against Millennium Laboratories for “Misleading” Press Release

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MILLENNIUM LABORATORIES, INC.
:
Plaintiff
:
v Civil Case No. L-10-3327
:
AMERITOX, LTD.
:
Defendant
:
o0o

PRELIMINARY INJUNCTION

On June 13, 2012, Millennium and Ameritox entered into, and the Court approved, a Consent Order that concluded the above-captioned Lanham Act case. Docket No. 321. Later the same day, Millennium issued a press release (the “Press Release”) concerning the litigation and the Consent Order. Docket No. 306-1. Upon motion by Ameritox, the Court granted a Temporary Restraining Order requiring, inter alia, that Millennium take down the Press Release from its web site, and enjoining Millennium’s sales representatives from using the Press Release in sales presentations or communications. Docket No. 329.

On June 14, 2012, the Court reviewed written submissions from both sides and convened a sealed hearing. For reasons that the Court stated on the record, the undersigned granted Ameritox’s motion to convert the Temporary Restraining Case 1:10-cv-03327-BEL Document 330 Filed 06/14/12 Page 1 of 3Order to a Preliminary Injunction (Docket No. 324).1 This order effectuates that ruling.

To set the record straight, the Court will publish a brief opinion stating clearly the advertisements that were accused under the Lanham Act, the grounds upon which the advertisements were accused, the evidentiary limitations imposed by the Court, the recommendations of the advisory jury, and the rulings of the Court. The Court will issue this opinion as soon as practicable.

Until the Court can write the opinion and review it with counsel, the interests of justice require that Millennium be enjoined from distributing the Press Release or using it in sales presentations. Hence, the Court is issuing this
preliminary injunction.

As the Court explained during today’s hearing, a preliminary injunction is warranted under the standard articulated in Winter v. Natural Resources DefenseCouncil, Inc., 555 U.S. 7, 20 (2008). Moreover, the Court has inherent authority to enjoin misleading statements concerning litigation before it. See Am. Sci. & Eng’g, Inc. v. Autoclear, LLC, 606 F. Supp. 2d 617, 626 (E.D. Va. 2008) (ordering removal of a press release that contained misleading statements about the court’s rulings). 2

The Court is not enjoining all communication by the parties regarding this litigation, but only the Press Release that the Court has, on the basis of the record before it, preliminarily deemed to be misleading. The injunction is, therefore, appropriately tailored. See Cornwell v. Sachs, 99 F. Supp. 2d 695, 708 (E.D.Va. 2000).

For the foregoing reasons, it is this 14th Day of June, 2012, hereby ORDERED as follows:

1. The Temporary Restraining Order issued on June 13, 2012 (Docket No. 329) is VACATED;
2. Millennium shall remove the Press Release from its web site; and
3. Pending further Order of Court, Millennium is preliminarily enjoined from using the Press Release in sales presentations or communications or otherwise disseminating it to the public.

/s/
_______________________________
Benson Everett Legg
United States District Judge

1 Ameritox has also filed a new civil action challenging the Press Release as a false advertisement under the Lanham Act. See Ameritox, Ltd. v. Millennium Laboratories, Inc., Civil Action No. L-12-1753 (D. Md. 2012).

2 While American Science involved bad faith on the part of the defendant, a finding of bad faith is not a requirement for exercise of the Court’s inherent authority. See Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 and n.11 (3d Cir. 1994). The Court wishes to be clear that, by issuing this injunction, it has not made a finding of bad faith on the part of Millennium or its esteemed counsel.