EATRIGHT® Everything Right CEREAL

Samples of this "proof-of-concept" product and "fiber packaging" were presented to Woolworths Ltd in Australia on "Thursday 13 December [2007] at 9:00am-10:00am". It was a work-in-progress product-package. For instance, the cereal "box design and mock up" was sent to "Rebecca DOUGLASS-Clifford" on 16Nov07 and included the Yogi Cookie-Carton "inner barcode (EAN 14).

The EATRIGHT® Everything Right Cereal-Carton EAN was yet to be assigned and "some [further formulation] work in terms of taste profile" required before being upload, along with the other EATRIGHT® products (including "Sold More Christmas Cakes than Ernest Adams" seasonal product) submitted/uploaded to "GMA UBFv97.XLS" on 18Dec07. Where the AUSTRALIAN “trading terms” post-Macro were 27.79% or a 1011% percentage increase compared to pre-WOW-28May07-amalgamation of 2.5% only.

And the meeting confirmed (post Macro WHOLEFOODS acquisition) loss of "quality and variety" (ref: FTC v. Kroger Company/Albertsons Companies Inc; Docket No. D-9428), "entrepreneurial diversity" and others^ that Eat Right Foods Ltd provided "in" those "Macro" stores [not MACROpiper excelsum in product selections]. In addition, it gave insight into the EATRIGHT® innovative product development directions. For instance, "activate the enzymes in the seeds", "natural source of iron, niacin and folate", "eco sensitive packaging", no added sugar c/- sugar as a 2nd ingredient dkt 2:13-cv-02174 dkt 32-2 p4), no added salt (ie 19mg/100g c/- salt as a 4th ingredient 833mg/100g). But "natural source" and other initiatives were "contained" ... only released [post "Woolworths" supply]. Yet "Woolies" have made interesting on-going requests for "food quality certificate" (eg 20Feb24) including an admission of their "inaccurate records" [see “own imprecise record-keeping” 2:13-cv-02174 dkt 71]. And there was absolutely NO predisclosure (NAY (archaic) pre disclosure, FREE-from pre-disclosure) of "Safeway" conflicts of interests PRE-co-existence..."appointed" directors (c/- "elected" members of 109th Congress) "fiduciary duties" [breach of NACD "Agreed Principals" section VI, breach of their own "Code of Ethics"] was raised as an issue in 19May08.

“When we are faced with a proposed merger between the third- and fourth- ranking companies in a major industry, ["new learning" economists would] perceive this merger to be a competitive goad to Nos. 1 and 2. If America's giants, Nos. 1 and 2 in an industry, prepare to join hands, [the economists would perceive] that the relevant geographic market is not the United States, but the WORLD. Should the No. I and No. 2 breakfast cereal manufacturers in the world become betrothed, [they would] decide that the relevant market is far more commodious than had been thought: egg breeders, croissant bakers, Egg McMuffin vendors, lox and cream cheese purveyors-all [would be] shepherded into one great breakfast market in which the cereal giants will be seen to occupy only modest market shares. Even monopoly need not concern us, they [would] say, unless there exist great "barriers to entry" to potential deconcentrators. But the only barrier to entry that ever seems to disturb our economists is a government grant of monopoly-in which case no merger issue arises. Thus the anticompetitive merger remains a receding mirage, never to be encountered in real life” (ref: Michael D. Pertschuk, former Chairman of the Federal Trade Commission, Love That Market, New Republic, May 14 1984, at 10, 11)

“Nor do megamergers seem conducive to technological innovation” the "vast majority of acquisitions of high technology companies by large corporations have ended in disaster” (ref: Walter Adams and James W. Brock,The Proposed Emasculation of Section 7 of the Clayton Act, 65 Neb. L. Rev. (1986); "Instructions / Documents" below).

“Once an anti-competitive purpose is established, the existence of some other motive is irrelevant” (ref: “Queensland Wire Ind. Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 at [28]”).
● Petitioner Safeway, a ‘multiple offender...shows a disrespect by Safeway of the law’ (ref: 20 F.R.D. 451 (N.D. Tex. 1957)), wanted “to cancel the Respondents mark so they [could] use it themselves…intent[ed] to extend" [using Eat Right Foods Ltd ‘brand equity’ (ref: FTC v. WFMI case 0710114 dkt 9324 ’buying [Wild Oats] . . . we eliminate forever the possibility of Kroger, Super Value, or Safeway using their brand equity’)
● The purpose ‘Berkey Photo standard of monopoly leveraging’ doctrine (ref: Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 276 (2d Cir. '79) before: Judge MULLIGAN, Kaufman and Smith c/- 9th Cir. Appeal 18-35473 “mulligan on these issues (WFM Br. at 1, 15, 16)” reply brief for Appellant). Where leverage to "non-Safeway” stores and food-service channels (ref: USPTO TTAB # 92048847 dkt 4 p2, dkt 5 exh 7 and exh 21 p4 of 5 important "signature block" last name "ROBINSON [-Patman Act]"
● ERF v. WFMI 2:13-cv-02174 dkt 32-2 p6, p11 where archive.org of wholepeople.com 28Nov99 "Whole Foods Market Inc ... Brownie Gift Box”; USPTO # 78692315 (Dorothy Lane Markets Inc ("killer brownie company"; Dorothy abbrev. "DOTI" or WFM "DOT" demo online tracker for "NC&Reno (late '10 onwards)) assigned "Eat Real Food" (RF) to United Broadcasting Company Ltd (RF ID) then assigned to WFM IP and further assigned for "T Transparency" use et al).
● When ["market power" is established] "circumstances, protecting the process of competition may have the effect of protecting a competitor" (ref: Misuse of Market Power Guidelines (pub. Mar'22) footnote 12: Commerce Commission v Fletcher Challenge Ltd [1989] 2 NZLR 554 (HC) at 604; and Union Shipping NZ Ltd v Port Nelson Ltd [1990] 2 NZLR 662 at 700)
● And online shop orders and deliveries to "CARTWRIGHT Road...0110" in '20 and '21.

See also iponz.govt.nz acceptance date 07Jul23 for case # 1238666 “EAT RIGHT”. This includes a “muted color” palette, as shown in the EATRIGHT® Nut'rimental Nut'gets new:old designs. Where the rebranding "priority" to be considered in the context of “rebranding back to Woolworths from early 2024, 12 years after the brand left the New Zealand market…branding U-turn” (ODT.co.nz pub. 17Aug23 “Bye-Bye Countdown...”). See also “i-PRO promotional deal sheet” requirements introduced after Foodland (N.Z.) Holdings Ltd (02Jun92 to 20Feb06) acquisition by Woolworths Ltd of Australia. At that time, Eat Right Foods Ltd ("ERF") products were also changed "Rice, Pasta, Soup, Dressings/Vinegars, Cooking Sauces, Condiments, Organics" abbrev. “Dressings/Vinegar, Pickles, Soups, Organics” to “Breakfast Foods, Naytura" abbrev. "Health & Wellness” category within the larger "merchandise" scope. And the “ERF" online PRO-motion includes “O-EATRI” priority (see also iShow.com Inc. v. Lennar Corporation, 2:15-cv-01550). Where the “WOW” amalgamation (28May07) significantly increased the NEW ZEALAND “trading term” percentages (in the order of a 687% percentage increase). The difference between Woolworths Australia (post-merger) 27.79% terms and Woolworths New Zealand (post-merger) 19.65% terms, is even more significant since all NZ supermarket supply was "store direct" (ie ZERO use of their/3rd party distribution centers).

Other EATRIGHT® contained offerings, in this space, have included "Rice & Spice Cereal", granola, porridge ["n. Soft food of oatmeal or other meal boiled in water or milk (keep one’s breath to cool one’s p., abstain from talking)" (ref: OX Dict.)], "Natural Muesli", "Corn & Soy Cereal" and, at a later date, "Bio-available (better than Bircher) Muesli".

duke n. [L dux leader] (ref: Oxford Dictionary, 4th ed)
dux, ducis n. “duke (medieval, Bee)” (ref: latin-dictionary.net)
■ “B.E.E” (Laundry Detergent License No. EC205020; GTIN 9421017780074) c/- FTC v. Procter & Gamble 386 U.S. 568 (1967) (opinion: Justice W "O" Douglas); and “Galaxy...Cleansing” (7Sep10). The middle "O" [Orville] is very important see eg "O" Organics, WFM's "O", S.O.S. [General Foods], "Orville" Wright [pilot] and Oriville [gold town]
■ “duke” c/- (James B. Duke) US v. American Tobacco 221 U.S. 106 (1911) (opinion Justice E. Douglass White)
■ "dux" c/- IP Australia 1196961 thomasDUX.com.au and Macro WHOLEFOODS acquisition "ended in disaster" for quality and variety supply
■ leverage n. advantage given by use of l., (fig.) means of effecting a purpose [L levo lift]; margin n. [L margo] ; coercive a. [L arceo shut up] (ref: Oxford Dictionary, 4th ed)

Ingredients [at that time]: Certified organic cereals (wholegrain corn, unhulled buckwheat, brown rice), certified organic dried fruit (sultanas, apricots, APPLEs), certified organic unhulled seeds (flax, sunflower). See also “the BEST foods for certain dietary requirements” (p37 3/10/15), "get the BEST from the world...[WFM] one entity" (p59 6/25/2014) and "BEST" ratings (in reverse or back-order) "100% intact whole grains or whole grain flour, no animal products, no added oil, no added sugar, no added salt". Where the EATRIGHT® “cert. organic apples” Rx includes eight possible varietals such as Aztec Fuji (PVR APP118) but not Fuji Supreme (PVR APP130) or a Fuji[tsu] PLU4131 v. PLU94131 significant sub-[contract] burden of gathering not-[wax]-seal evidence. Where USPTO case id 86314976 application date 19Jun14, assignment execution date 01Oct19, cancellation date 10Feb23 but "related properties information" 77879835 is still active with specimens including salmon [c/- "color added" USPTO 85170215 salmon specimen; "lox and cream cheese purveyors-" dkt27 id 17 exh M]. See also WFMI Investors Conference 27Feb15 edited transcript “we DON'T have patents” John Mackey p10 [emphasis added] but patents.google.com/patent/US20080177572 and br-ANDI-ng due diligence [2:13-cv-02174 dkt 149]. See also transcript reference to “tenet” [tenet n. doctrine held… [L = he holds], rule, canon; intend v.t. purpose, design, mean [L tendo stretch] ref: OX Dict. & Thesaurus] where Robinson-Patman Act as a “key tenet” of antitrust law (ref: “Back from the Dead...” by Godfrey & Kahn pub. 12Apr24).

Food SAFETY Verification: Certificate Number 2699 (an International Accreditation NEW ZEALAND (IANZ) third-party inspection body audit, pursuant to the Food Act 2014) issued to Eat Right Foods Ltd at MPI's highest risk level, for the manufacture, processing, exporting, packing, holding and distribution of food products. Where the, independent audit company, is ISO 17020 accredited
Additional Audited Compliance: Australian NEW ZEALAND Food Standards Act 1991 (FSANZ Act) and Code 2002; CAFTA Model Recall Procedure: Food Australia, 45(7), 313-316 1993; Codex Alimentarius Commission: Hazard Analysis Critical Control Point (HACCP) System & Guidelines Annex to CAC/RCP 1-1969, Revised 2022; Food Regulations 2015 (LI 2015/310), version July 2023 and Fair Trading Amendment Act 2021
Address: PO Box 1525 [Level 1, 6 Church St], Nelson 7040, NEW ZEALAND

Retailer Detail: height-width-depth of Unit, Inner & Outer Shipper Cases
Expected shelf life from delivery: 12 months
Digital image: Yes
Storage temp: Room
Country of origin: New Zealand
Date Available: TBC
Best Before Date / Use By Date on Product: Yes
Seasonal Line: n/a
Warehoused: No
Hazard Class: Nil
Hazchem Code: Not applicable

[inconvenient data] Footnote 1: In 880 F.3d 1109 (2018) “Whole Foods asserts only that its "main point of contact" has moved on from the company, NOT [emphasis added] that he or she is unavailable to testify. See Fowler v. Blue Bell, Inc., 596 F.2d 1276, 1279 (5th Cir. 1979) ("The mere assertion that these persons are not presently with the company is insufficient to support a finding of prejudice. [The defendant] must also SHOW [emphasis added] that they are unavailable to testify.")”. Where retail prices, at US$9.99 for a 10.6oz tub, the HIGHest (see "(PN RMD)" Redmond, WA 98052 17Feb10 confirmation email). And a please explain “retail price” when “wholesale price per 10.6oz EATRIGHT tub is $4.0675” to regional "coordinator purchasing" Ms. DeGreen (Gross Margin 59.3%, Net Margin 145.6% (Pacific North West) region c/- retail price from US$8.99 to US$8.49 in (Northern California) region on 23Feb10) 58.78% Gross Margin, 142.6% Net Margin). See also "respondent's case is that it has thus far failed to make such proof" (ref: 334 U.S. 37 (1948) id 48; opinion by Justice Black not plaintiff paralegal Mr J. Black "no longer employed" pre-dkt 126). Where “Pandora n. First created woman of Gk myth, by whose act all ills were loosed from a box upon men, Hope alone remaining. [Hesiod, Op. 50-105]; box n. Kinds of evergreen esp. dwarf[ed] one...” (ref: OX Dictionary 4th ed).

[inconvenient data] Footnote 2: “I recommend your products strongly to other retailers in the United States…Your product lines macth [“ANSWER, MACTH and ATTIRE trials assessing human albumin”; Journal of Hepatology vol 75] perfectly to consumers that are DEEPly [emphasis added] committed to health and diet (ref: John Clougher, President, COO, Andronico’s Community Markets 3.31.2011). Where WFM “deeper discounts are required … expectation is a 30% discount” (30Nov11 email that included "Ricardo Martinez (SW SDD)"), "deep discount promotion...whopping 35% discount" (12Jun09), “deeper discounts” (6Jul08). Where USPTO no. 86076718, “high levels of arsenic” (ref: consumerreports.org; pub. 24Jun20). And stark adv. S. mad, naked (completely) [NAKED importance]; seat n. the seat of disease is the liver [Gk hepar liver] (ref: Oxford Dictionary 4th ed).

[inconvenient data] Footnote 3: [Mackey's] “Relationships with many former colleagues seem fraught. They won’t talk about him on the record, out of concern for propriety, ongoing business dealings, or non-disclosure and non-disparagement agreements they signed when they left” (ref: Food Fighter by Nick Paumgarten, The New Yorker (pub. 27Dec09)) c/o 2:13-cv-02174 dkt 123 “Whole Foods repeatedly disparages Eat Right” and 9th Cir. Appeal 15-35524 oral argument (4Dec17) where "that woman" heavy emphasis ("live" stream) subtle muting to less discriminatory "this woman" p28 ln 11 transcript. disparage v.t. speak slightly of; (arch.) bring into disrepute, lower dignity of [L paro set] (ref: Oxford Dictionary)

[inconvenient data] Footnote 4: Since there was NO “put the [EATRIGHT®] products on the shelf right away” or “share the revenue” ... necessary factors in so called “MANutailoring” [c/- “tailorednews” 2:13-cv-02174 dkt 26 id 13 exh F dkt 26-6; 1:13-cv-00002-TFH; "Resurrecting the FTC Act’s Penalty Offense Authority" by Rohit Chopra & Samuel A.A. Levine footnote p42]... then it was Safeway and subsequently Whole Foods who “knock[ed] off a leading national brand right down to the packaging”, “boosting their profits” and “increased margins” (ref: USPTO TTAB # 92048847 dkt 5 exh 7 full reference: Feb'08 stores.org). See also “disclosures pursuant to Rule 26(a) of the Federal Rules of Civil Procedure…following individuals are likely to have discoverable information that ERF may use to support its claims…Various individuals at Whole Foods Market…Various individuals at Safeway, Inc” (2Apr14).

[inconvenient data] Footnote 5: Safeway Eating Right which "BOWED" …
[bow n. fore-end of boat or ship; bow tie n. necktie, dicky, dickey, dickie, dickey, dickey bow (Dictionary Form); dicky n. seat at back of carriage. adj. (sl.) shaky or rickety or precarious…small bird [partly f. Richard] (ref: Oxford Dictionary & Thesaurus); with "tug tie" relevance "even if TMPL (Tasman Bay Maritime Pilots Ltd) could supply contestable services more efficiently than PNL (Port Nelson Ltd), a customer would be likely to purchase contestable services from PNL in order to obtain the benefit of the discount that applied to the incontestable services. This effect was more severe because the incontestable services were essential services (ref: "Predatory Conduct under the Commerce Act 1986" by Coull, David [1998] VUWLawRw 31); Judge Richard Tallman bowtie (ref: 880 F. 3d 1109)]
… last spring "on track to hit $200 million" (less $30M (ad spend) generated ~ $170M ie never any cost justifications). "Both lines have the potential to exceed the $1billion sales mark in the next two to four years". Mr White "veteran of…Gillette, Nestle and Coca-Cola". (ref: Michael Applebaum, ADweek pub. Sep’08). Where EATRIGHT® “acquired distinctiveness section 2(f)” USPTO serial Nos. 77470886; 77471111 (9May08); section 2(f) of the Robinson-Patman Act “buyer liability” (see eg 334 U.S. 37 (1948) "failed to make such proof…lumping together…sales of its other products" see also 2:13-cv-02174 dkt 27-1 p6 "Perishables: Prepared foods and bakery, Other perishables"; dkt 63 p5 ln 22 "cannot separate the revenues").

[inconvenient data] Footnote 6.: 2:13-cv-02174 Interrogatory No. 17 …"Exports" category referenced in BATES [emphasis added] No. ERF004308; email 17Jun12 “Mineral Cookie” attachment BATES stamped ERF2491 and others. And No. 15 "NZ Sales" includes Online Shop...Sales to the USA and other countries include use of inter-POST OFFICE-delivery to UK, US and others [ref. BATES v Post Office Ltd (EWHC QB 606); reported by Rebecca [Thomson]]. And "ERF" not the only ONE to experience ... USPTO TTAB # 92048847 dkt 5 exh 7 “retailer would knock off…cut the price by”. See “Whole Foods is copying Walmart…” (ref: Yahoo Business Insider 19Nov16 and "that" photo in USPTO 87722325 1Oct18 p22). “The larger company knew of the smaller company's use—and trademark—when it decided to use the name, but the larger company used it anyway...willful infringement” (ref: 5:15-cv-00217 Variety Stores Inc v. Wal-Mart Stores Inc). bate [L batuo beat].