Slush Puppie Limited v. The Icee Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
SLUSH PUPPIE LIMITED,
Plaintiff/Counterclaim Defendant,
v.
THE ICEE COMPANY,
Defendant/Counterclaim Plaintiff.
Case No. 1:19-cv-00189
Judge Michael R. Barrett
OPINION & ORDER
This matter is before the Court on The ICEE Company’s (“ICEE”) Motion for
Sanctions against Slush Puppie Limited (“SPL”). (Docs. 73, 82, 87).1
1 It was understood that this motion for sanctions against SPL would proceed on the briefs only.
(Transcript of Proceedings, Discovery Conference via Telephone on Friday, February 7, 2025, Doc. 287
PAGEID 14037–14038). But oral argument was (requested and) held on ICEE’s second motion for
sanctions (Doc. 89) against SPL’s outside counsel, the law firm of Benesch, Friedlander, Coplan &
Aronoff, as well as individual Benesch attorneys Avsec, Emanuel, Gurbach, House, Turk, and Zalud (the
“Benesch Respondents”). (See 02/21/2025 Minute Entry & Transcript of Proceedings, Oral Arguments on
Motion for Sanctions on Thursday, February 20, 2025, Doc. 294). The Court had made clear, however,
that if anything came up in the hearing on the Benesch sanctions motion that trial counsel Eric Zalud
wished to address on behalf of SPL, he would be given the opportunity to do so.
THE COURT: . . . At one point in time, you know, I said in terms of your client I’m
happy to proceed on the pleadings. I don’t think anybody raised any objections
to that. But as I was thinking about it, whenever we have this argument, David is
certainly going to be saying stuff that involves the law firm; but in saying it, he's
also going to be saying things that he thinks Mark Peters has done. And I think
that when we have that hearing, you should be there just to throw your two
cents in if you think something's out of line.
MR. ZALUD: Okay, Your Honor. I planned on attending but kind of sitting in the
gallery. I'm named in it, but I understand what you're saying and I –
THE COURT: Yeah, yeah. I mean, David's focus, I think, is going to be on you
guys; but, in doing so, he's also going to have to talk about what he alleges Mark
Peters has done and things like that. And I think if there's something that you
don't think has been covered properly in the pleadings on the Motions for
Sanctions against Slush Puppie, that you should be absolutely entitled to
chime in and add your perspective.
MR. ZALUD: Okay, that -- yeah, that makes sense, Your Honor.
THE COURT: I just think it's fair.
(Doc. 287 PAGEID 14037–14038 (16:6–17:3) (bold emphasis added)).
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Filed on October 28, 2020, ICEE’s motion clearly has been ripe for some time.
The Court purposefully delayed its ruling in the hopes that the parties would broker a
settlement. Now that trial is set to begin next month,2 postponement no longer serves a
purpose. All this said, a finding that sanctions are warranted should come as no surprise
to SPL or its lawyers (or its lawyers’ lawyers). 	(See, e.g., Transcript of Proceedings,
Motions Hearing on Wednesday, May 31, 2023, Doc. 220 PAGEID 8676 (23:11–17)
(“THE COURT [addressing Mr. Kasson]: And the order, you know, I haven’t issued an
order on sanctions yet, but there’s going to be an order on sanctions. 	There’s going to
be a real question about whether it’s the client or it’s joint and several. We spent a lot of
time and a lot of money chasing down the 2000 Agreement, and that’s just not going to
go unaddressed. 	And your clients, the [Benesch] law firm, needs to know that.”);
Transcript of Proceedings, Discovery Teleconference on Tuesday, May 14, 2024,
Doc. 	271 	PAGEID 	11671 	(27:7–12) 	(“THE 	COURT 	[addressing 	Mr. 	Kasson 	and
Mr. Wolfsohn]: Yeah. 	I mean, it shouldn’t be a surprise to anybody that a potential
sanction against Slush Puppie would be barring the Amended Complaint, you know,
knocking out the earlier agreements from this case. 	I mean, that’s a distinct possibility
based upon the way this case is set up. So you guys should know that.”)).3
2 (See 09/23/2025 Updated Case Management Order).
3 (See also April 24, 2025 ORDER, Doc. 301 PAGEID 14583 (“Consider the basis underlying SPL’s
Motion for Leave: learning that the claims premised upon the 2000 Agreement were ‘meritless,’ because
the 2000 Agreement ‘is not a genuine document.’ But what SPL calls ‘not a genuine document’ ICEE
calls a ‘fabrication’ and, to this end, has filed a comprehensive Motion for Sanctions against SPL (to
redress the forgeries by its principal, Mark Peters). ICEE also has filed a Motion for Sanctions against the
Benesch firm and six individual attorneys who, at one point or another, represented or continue to
represent SPL. This case has been fraught with discovery disputes generally, but particularly on this
issue. So much so that the Court has advised the parties that—based on the record evidence with which
the undersigned is all too familiar—sanctions eventually will be imposed against SPL. Whether they will
also be imposed against (any or all of) SPL’s lawyers remains to be seen.”) (footnotes and docket
citations omitted)).
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I. 	BACKGROUND
The Court begins by restating sections of its April 10, 2024 Opinion & Order.
(Doc. 270). These sections (naturally) refer to the then-operative pleadings. Facts
will be added as necessary to reflect the current state of events.
The SLUSH PUPPIE frozen drink business was started by Willard ("Will")
Radcliff, who founded the Slush Puppie Corporation (“SPC”) in Cincinnati, Ohio, and
built it into a successful international business. (Defendant The ICEE Company’s
Counterclaims to the Amended Complaint, Doc. 29 PAGEID 498 ¶ 5). From (around)
1978 until (early) 2001, SPC owned the trademarks for SLUSH PUPPIE along with
various logos and designs used in connection with SPC's goods and services. (Id.).4
A. 	1996 Manufacturing Appointment
On or about January 	1, 1996, SPC entered into an Appointment of Syrup
Manufacturer 	("1996 	Manufacturer 	Appointment") 	with 	Able 	Foods 	Ltd.
(“Manufacturer”), later known as Slush Puppie Limited5 (“SPL”). 	(Doc. 27-2). The
appointment grants SPL “THE LIMITED USE OF [SPC] FORMULAS, RECIPES AND
PROCESSES, WHICH SHALL REMAIN TRADE SECRETS AND THE EXCLUSIVE
PROPERTY OF [SPC] FOR THE PURPOSE OF MANUFACTURING NEUTRAL BASE AND
SYRUP.” 	(Id. PAGEID 393 (recitals)). 	The appointment is exclusive (to a list of 27
European countries, including the United Kingdom) and “is subject to and conditioned
4 The SLUSH PUPPIE marks include U.S. Trademark Registration No. 1,665,188 covering
"nonalcoholic slush type beverages, syrups, and preparations for making slush type beverages" and
U.S. Trademark Registration No. 3,132,350 covering "clothing, namely tops, t-shirts, pants and
loungewear, headwear, jackets and footwear." (Defendant The ICEE Company’s Counterclaims to the
Amended Complaint, Doc. 29 PAGEID 498 ¶ 7).
5 (Amended and Supplemental Complaint, Doc. 27 PAGEID 353 ¶ 19). Able Foods Ltd. was formerly
known as Somportex Ltd. (Id.).
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upon the Manufacturer’s continued performance meeting 	the standards of [SPC] for
quality and performance quotas[.]” 	( Id. PAGEID 393 ¶ (1)). 	SPL’s royalty payment
(for manufacturing rights) was set at 5%. (Id. PAGEID 394 ¶ (3.A)).
The appointment provides that SPL “shall not manufacture, bottle, distribute, or
sell directly or indirectly, any other product for use in Slush machines not promoted by
[SPC]” and that it “shall continually use its primary and best efforts . . . to fill all orders for,
and deliver product to, [SPC] authorized customers[.]” ( Id. PAGEID 394 ¶¶ (4)(5)).
The appointment also provides that “[SPC] is the registered owner of the trademark
‘SLUSH PUPPIE’ and all labels and designs incidental thereto . . . [and] [s]hould this
appointment be terminated, Manufacturer shall immediately cease using said SLUSH
PUPPIE trademarks or designs, . . . tradenames, signs, emblems, insignias, symbols,
tokens, or other marks used in connection with SLUSH PUPPIE, in any manner
whatsoever[.]” (Id. PAGEID 395 ¶ (11)). 	Moreover, “[u]pon any termination, . . . any
formerly approved business name of Manufacturer shall be immediately changed to
delete any reference to SLUSH PUPPIE products.” (Id.).
Although the appointment is perpetual, it lists several grounds upon which SPC
can terminate. Pertinent to this litigation:
(8) This appointment is perpetual, however, in addition to any
and all rights and remedies [SPC] may cancel and terminate this
appointment by written notice to Manufacturer for any one of the
following reasons:
. . . .
D. 	The 	voluntary 	or 	involuntary 	petition 	of
Manufacturer 	seeing 	relief 	under 	any 	provision 	of 	any
receivership or bankruptcy law or other law for relief of
debtors[ 	]. The filing of any legal action other than for
collection on account against [SPC], its representatives,
distributors, customers, manufacturers, or suppliers[.]
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(Id. PAGEID 394–95 ¶ (8) (bold emphasis added)). Upon termination “for any reason by
either party and for two years thereafter,” Able Foods agreed to not divulge any SLUSH
PUPPIE trade secrets. 	(Id. PAGEID 395 ¶ (12)). 	It also agreed to not compete with
SPC. (Id.). And “[t]his provision regarding trade secrets and covenants not to compete
shall be construed liberally in favor of SLUSH PUPPIE.” (Id.).
Finally, the appointment contains an integration clause6 and a choice-of-law
(Ohio) provision.7 	It was signed on February 5, 1996 (in Cincinnati, Hamilton County,
Ohio) by Ralph Peters8 on behalf of Able Foods and by Will Radcliff on behalf of SPC.
There is no drafting history in the record regarding the 1996 Manufacturing Appointment.
B. 	1999 Distributor Agreement
Next, SPC (“Company”) entered into an International Independent Area Distributor
License Agreement with SPL (“Distributor”), that was executed in 1999 and effective
January 1, 2000 (“1999 Distributor Agreement”). 	(Doc. 27-3 PAGEID 400 (recitals),
408 § XIX, 409 (Exhibit A)). 	Mark Peters, Ralph Peters’ son,9 signed on behalf of SPL.
(Id.; Ralph Peters depo., Doc. 84 PAGEID 2136 (31:4–18)). This license granted different
rights,10 to include “THE RIGHT TO THE USE OF THE NAME ‘SLUSH PUPPIE’ FOR
6 (Doc. 27-2 ¶ (22) (“This appointment expresses fully the understanding and all prior understandings are
hereby canceled, and no further changes in the terms of this appointment shall be valid except when and
if reduced to writing and signed by both Manufacturer and SLUSH PUPPIE, by legally authorized
officials.”); Doc. 27-2 PAGEID 398 (“This appointment represents the full agreement of the parties and
supersedes and replaces any and all previous manufacturing appointments.”)).
7 (Doc. 27-2 ¶ (24) (“This appointment and all of its terms and conditions shall be governed by and
interpreted under the laws of the State of Ohio[.]”)).
8 (Ralph Peters depo., Doc. 84 PAGEID 2128–2131 (23:10–26:8)).
9 (Ralph Peters depo., Doc. 84 PAGEID 2122 (17:13–14); 2139–2141 (34:7–36:6)).
10 (Doc. 27-3 § VII (“This Agreement is not a license or consent for DISTRIBUTOR to enter into the
manufacturing of any of the PRODUCTS. In the event that such license or consent is granted, this
agreement shall exist independent thereof.”)).
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THE PROMOTION AND DISTRIBUTION OF PRODUCTS [i.e., freezers, neutral base,
flavors, cups, other related items, and other products which may be specifically approved
in writing from time to time] OFFERED BY COMPANY” in the United Kingdom and Ireland.
(Doc. 27-3 PAGEID 400 (recitals), 409 (Exhibit A)). 	As Distributor, SPL agreed to
“vigorously promote” the sale of SPC’s products in “important commercial centers” within
its exclusive territory and to keep SPC “regularly informed” of its “operating and sales
activities” relating to SPC’s products. 	(Id. PAGEID 402 §§ IV.A, IV.C). 	The agreement
provides that SPC owns the SLUSH PUPPIE trademarks (name and logo), allowing SPL
to use them only upon “continued qualification” as a “bona fide” Distributor. (Id. PAGEID
403 § VI.D). 	SPL’s use of the SLUSH PUPPIE trademarks “is unauthorized upon
termination of this Agreement.” 	(Id.). 	To this end, SPL agreed, upon termination, “to
immediately cease and desist from the further use of the Slush Puppie name and logo,
and return any and all PRODUCTS, materials, signs, emblems, and the like, bearing the
Slush Puppie name and logo, to COMPANY in Cincinnati, Ohio, freight prepaid.”
(Id. PAGEID 404 § VI.H).
Although the agreement is perpetual, it lists bases upon which SPC will terminate
the license, subject to notice and a (60-day) opportunity to cure. 	(Id. PAGEID 404
§§ VIII.A–D). 	It also lists bases upon which SPC will immediately terminate the license
(without opportunity to cure), including SPL filing for bankruptcy protection or SPL’s
inability to pay its debts to SPC. 	(Id. PAGEID 405 §§ VIII.F.1–5). 	Pertinent to this
litigation, SPC may, “for good cause[ ]” immediately terminate the license upon “[t]he filing
by DISTRIBUTOR of any claim or legal action against COMPANY, its representatives,
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DISTRIBUTORS, manufacturers, or suppliers[.]” 	(Id. PAGEID 405 § VIII.F.4). 	Upon
termination, SPL waived the right to any compensation “for any claim for ‘build-up of
TERRITORY’ or recoupment of investment, as such is done at DISTRIBUTOR’S risk.”
(Id. PAGEID 405 § VIII.I). 	Additionally, SPL (to include its “subsidiary or associated
companies, 	[and] 	its 	appointees/sublicensees”) 	agreed 	to 	not 	“make 	or 	sell 	the
PRODUCTS within or without the TERRITORY for a period of five (5) years” post-
termination. (Id. PAGEID 406 § VIII.M).
Finally, like the manufacturing appointment, the distributor agreement contains an
integration clause11 and a choice-of-law (Ohio) provision.12 It was signed on December
23, 1999 (in Cincinnati, Ohio) by Mark Peters on behalf of SPL and by Diane Menzer on
behalf of SPC. 	There is no drafting history in the record regarding the 1999 Distributor
Agreement.13
C. 	Sale of the SLUSH PUPPIE trademarks & related business
In 2001, Dr Pepper/Seven Up, Inc. (“DPSU”) purchased the SLUSH PUPPIE
trademarks and business from SPC. (Doc. 29 PAGEID 503 ¶ 34). All trademarks relating
to the SLUSH PUPPIE business were thereafter assigned to DPSU. 	(Doc. 27 PAGEID
356 ¶ 35 & Exh. F (Doc. 27-6); Doc. 29 ¶ 35). In 2006, The ICEE Company purchased
the SLUSH PUPPIE trademarks and business from DPSU and became obligated under
11 (Doc. 27-3 § XVII (“This Agreement expresses the full agreement and understanding between the
parties, and supersedes any and all prior grants of license or other oral or collateral agreement,
understanding, or representation of any kind. Any amendment of this Agreement must, of necessity, be
in writing.”)).
12 (Doc. 27-3 § XVI (“The parties agree that in all matters pertaining to this Agreement, the laws of the
State of Ohio, USA shall be applicable and controlling.”)).
13 Mark Peters testified during his (July 1, 2020) deposition that he signed, but did not negotiate, the
distribution agreement on behalf of SPL. (Mark Peters Doc. 74 PAGEID 1673 (130:1–18, 131:19–24)).
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the 1996 Manufacturing Appointment and the 1999 Distributor Agreement. 	(Doc. 27
PAGEID 357 ¶ 38; Doc. 29 PAGEID 503 ¶ 38). 	All trademarks relating to the SLUSH
PUPPIE business were thereafter assigned to ICEE. 	(Doc. 27 PAGEID 357 ¶ 39 &
Exh. H (Doc. 27-8); Doc. 29 PAGEID 503 ¶ 39).
D. 	Subsequent 	correspondence 	between 	SPL 	& 	ICEE 	concerning
the 1996 Manufacturing Appointment and the 1999 Distributor Agreement
On July 27, 2009, Mark Peters sent copies of the 1996 Manufacturing Appointment
and the 1999 Distributor Agreement to Dan Fachner as a follow-up to Peters’ request for
help with “the issue with Slush Costa Blanca (SCB).” (Doc. 60-1 PAGEID 975). (Fachner
currently serves as President of J&J Snack Foods Corp., which owns 100% of The ICEE
Company; he has served as the president and/or CEO of ICEE since 1997.)14 	On
September 27, 2009, Peters corresponded with Fachner again about a “major problem”
with “ex Distributors” in Spain, attaching once more the 1996 Manufacturing Appointment
and the 1999 Distributor Agreement. Peters points out that the exclusive territory defined
in the manufacturing appointment is significantly greater than the territory identified in the
distributor agreement (“because of the way the contracts was set up between my Father
and Will [Radcliff] many years ago”). 	“What I need to allow us to [initiate a trademark
action in Spain] is a side letter from you amending the International Independent Area
Distribution 	Agreement 	executed 	the 	23 rd 	December 	1999 	section 	Exibit 	A 	[sic]
TERRITORY to be the same as the Manufacturing agreement.” 	(Id. PAGEID 977–78
(underline emphasis added)).
On April 1, 2010, Peters emailed Fachner about expanding the distributor license
beyond the United Kingdom and Ireland. (Doc. 60-2 PAGEID 997 (“Dan I know you are
14 (See Dan Fachner decl., Doc. 103-1 ¶ 3; see also Dan Fachner decl. (2d), Doc. 112 ¶ 3).
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now the brand owner and we are at your mercy on this. I just know that to have a third
party agency who can make a little money from selling a trinket or two and they have not
got one cent invested in it. For them to be representing Slush Puppie at trade shows is
something that will do untold damage to our business and ultimately your brand. 	It is
simply not worth it. I think my last suggestion to you was that we take a little time out to
look at the best way for both businesses, on how we work together on the Slush Puppie
brand by re looking at the master agreements.”) (underline emphasis added)). As part of
an ongoing exchange, Peters emailed Fachner on April 10, 2010 and attached another
copy of the 1996 Manufacturing Agreement. (Id. PAGEID 996 (“Thank you for your time
on the telephone. 	I am not sure if you have a copy of the manufacturing agreement.
Please see attached.”)).
Speed ahead to January 10, 2017, when SPL’s Alan Beaney—in an email to Steve
Every, ICEE’s Vice President for Managed Service and International—described “the
Slush Puppie contractual arrangements in Europe[ ]” as the contract effective on 1st
January 1996 (Syrup Manufacture (and sale) in Europe) and the contract effective on 1st
January 2000 (Distribution Agreement in UK and Ireland). 	(Doc. 73-9 PAGEID 1381–
1388).
Later that same year, on August 8, 2017, SPL’s Manchester counsel sent return
correspondence to ICEE’s London counsel, in which it refers to “the International
Independent 	Area 	Distributor 	License 	Agreement 	dated 	23 	December 	1999 	(the
‘Distribution Agreement’) and the Appointment of Syrup Manufacturer Agreement dated
5 	February 	1996 	(the 	‘Manufacturer 	Agreement’) 	(collectively 	the 	‘Existing
Agreements’).” 	(Doc. 60-3 PAGEID 1008). 	“Whilst it is clear that the Existing
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Agreements form the basis of the relationship between Slush Puppie and Icee, the terms
of the Existing Agreements do not encompass the entirety of the relations between the
parties, as the Existing Agreements have been varied by agreement since 1999. . . .
Given the uncertainties that have developed as a result of modifications to the Existing
Agreements over the course of the last 17 years, we consider that it would be in the
interests of both Slush Puppie and Icee to attempt to codify, and where necessary
update, the terms of the Existing Agreements so as to take into account the reality of
Slush Puppie’s business, on behalf of Icee and the Slush Puppie brand, in the UK and
Europe and to create a clearer understanding of the parties’ respective roles going
forward.” (Id. PAGEID 1008–1009).
E. 	The 2000 “Appointment of Trade Mark Licence”
Peters first sent what has become known as the “2000 Appointment” to a solicitor
at the British law firm of Reynolds Porter Chamberlain (“RPC”) on “20 November 2017
Monday 16:14.” (See Doc. 73-11 PAGEID 1426).15 Attached to his email was a doctored
version of the 16/02/2011 “History of working practise between Slush Puppie USA and
Slush Puppie UK formerly Able Foods Ltd formerly Somportex Ltd” to “corroborate” the
2000 Appointment. The metadata for the “History of working practise” indicates that the
.pdf was created “11/20/2017 3:31:42 PM” and authored by “markp” approximately 40
minutes before it was forwarded to RPC. (Doc. 73-12 PAGEID 1483).16
15 Peters testified that his father, Ralph, handed him “several items in a box” sent from Ralph’s home in
Mallorca to his home in Buckinghamshire. (Doc. 74 PAGEID 1668–1669 (112:16–114:12)). One of those
items supposedly was a copy of the 2000 Appointment. (Id.).
16 ICEE’s forensic document/handwriting examiner J. Wright Leonard later opined that the 2011
“History of working practise” was the “source” document for the signatures on the 2000 Appointment.
(See Doc. 73-10 PAGEID 1395–1399; see also Doc. 73-26).
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Likely anticipating a lawsuit, on December 20, 2017, RPC sent Mark Peters an
engagement letter along with its “Litigation Guide” that included a section on preserving
documents. 	(Doc. 73-13 PAGEID 1490). 	That email from Partner David Cran read in
part:
As 	we 	discussed, 	please 	do 	send 	through 	the 	further
emails/correspondence with ICCE [sic] that you mentioned, as well
as any royalty statements/calculations showing the agreed 2.5%
royalty (under the later 2000 agreement – ie document 4, as
opposed to the earlier agreements). 	As mentioned, anything that
fixes ICEE with knowledge of that document 4, or shows that
ICEE has been working to its terms, would be helpful.
(Doc. 73-14 PAGEID 1502–1503 (bold emphasis added)). Cran renewed his request on
January 10, 2018. (Id. PAGEID 1501–1502).
To further his scheme, Peters put together the now infamous “Wendsday” email.
He copied a genuine email sent (“11 November 2008 14:27”) by ICEE’s Jerry Bird to
SPL’s then-finance director Lindsay Kirby17 asking for “the supporting information on how
the 2007 Royalty was determined. . . . It appears that our Royalty has dropped
dramatically from the past and would like to try and understand.” 	(Id. PAGEID 1514).
Peters then pasted it into a Word document and typed a bogus reply from Kirby that
began, “The royalty is calculated as defined in the Trade Mark Licence dated August 8.”
(Id.). And then he quotes from the 2000 Appointment:
On 	page 	two 	– 	A. 	Royalty 	shall 	be 	defined 	as 	an 	amount
proportionately equal to 2.5% of the total cost of SYRUPS in pound
sterling prices charged to and sold to distributors after all appropriate
discounts (for all other goods and services sold directly to retailers
by SPL there will be no royalty payable) in the Territory. Royalty shall
be calculated and paid without regard to the tax implications, if any,
to Manufacturer.
17 Kirby left SPL’s employ in 2010. (See Doc. 74 PAGEID 1650 (39:6–24)),
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Is this what you need?
(Id.).18 	When Peters replied to Cran a week later (on 2018-01-17 10:26:29 +0000), he
attached this purported “e mail exchange from our head of finance to DPSU explaining
we are paying 2.5% royalty.” 	(Id. PAGEID 1501). 	Peters concludes his reply with the
prescient question, “Is this of any help?” (Id.).
Cran apparently was not fully persuaded. 	He drafted a letter to Gowlings WLG,
UK counsel for J&J Snack Foods and subsidiary ICEE, which he sent to Peters for his
approval. (See Doc. 73-16 PAGEID 1522–1530). In his email transmittal to Peters, Cran
cautions him, “One point to mention is that the risk of relying on the 2008 email without
having done full searches is that that any response and subsequent correspondence
could be highly relevant – we note in particular the [Kirby] email ends with a question ‘is
this what you need?’” (Id. PAGEID 1522).
The metadata—which was not produced until the Court granted ICEE’s discovery
motion19—indicates that this document was created “1/17/2018 9:53 AM” and authored
by “markp” less than 35 minutes before it was forwarded to RPC. (Doc. 73-14 PAGEID
1516). Notably, in the email header, on the “Sent” line, “Wendsday” is spelled phonetically
and, therefore, incorrectly.
On February 28, 2018, Mark Peters informs Dan Fachner about “identifying” the
2000 Appointment:
Following our previous discussions, in the course of reviewing our
existing arrangements, we have identified the attached exclusive
licence[20] 	dated 	8 	August 	2000, 	which 	governs 	the
18 (Cf. Doc. 27-4 PAGEID 412 ¶ (4.A)).
19 (See Docs. 60, 62, 67).
20 (Doc. 60-5 PAGEID 1022–1027).
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arrangements between the parties. This exclusive licence post-
dates both the Appointment of Syrup Manufacturer Agreement
dated 5 February 1996 and the International Independent Area
Distributor License Agreement dated 23 December 1999, which
were the subject of our previous discussions. This exclusive licence
confirms that SPL has the exclusive rights to use the SLUSH PUPPIE
trade mark in Europe in relation to freezers, syrups and products for
the promotion of the SLUSH PUPPIE trade mark.
(Doc. 60-5 PAGEID 1021 (bold emphasis added)). 	Fachner responded on March 12,
2018, noting that “[f]or the past 11 years we have had many discussions live and
documented around the challenges of our agreements dated 1996 and 1999. . . . This is
the first time that you have shared another contract. Where did this contract come from
and why was this never produced or mentioned in the past decade?” (Doc. 60-6 PAGEID
1029).
Benesch attorney Mark E. Avsec responded (on August 17, 2018) on behalf of
SPL with a cease-and-desist letter, which begins:
This 	firm 	serves 	as 	U.S. 	intellectual 	property 	litigation
counsel to Slush Puppie Limited (“SPL”). 	We have reviewed the
correspondence (including between and among solicitors) and the
various agreements concerning SPL’s exclusive right to use the
SLUSH PUPPIE® trademarks in the United Kingdom, Southern
Ireland and Europe. 	The SLUSH PUPPIE APPOINTMENT OF
TRADE 	MARK 	LICENCE 	dated 	August 	8, 	2000 	(the 	“2000
Agreement”) is the current operative agreement governing the
relationship between SPL, on the one hand, and J&J Snack Foods
Corp. (“J&J”) and its subsidiary The ICEE Company (“ICEE”)
(together, “you”), on the other hand. There is no question that the
parties have been operating under the terms of the 2000
Agreement 	(including 	its 	royalty 	provisions) 	since 	ICEE’s
acquisition of the SLUSH PUPPIE® brand and business in
2006. . . .
This firm is now engaged because the 2000 Agreement is
expressly governed by Ohio law and recites that any dispute must
be litigated in the State of Ohio. 	The 2000 Agreement, which
supersedes all previous agreements between or among the parties
(or their predecessors-in-interest) granted SPL the perpetual and
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exclusive use of the SLUSH PUPPIE® trademarks in connection
with 	the 	manufacturing 	and 	distribution 	of 	SLUSH 	PUPPIE®
products in the subject territories, including the U.K. and Europe.
Notwithstanding 	this 	stark 	language, 	J&J 	(through 	ICEE) 	has
inexplicably granted other parties the right to use the SLUSH
PUPPIE® trademark in connection with the manufacturing and
distribution of SLUSH PUPPIE® products in the U.K. and Europe.
(Doc. 27-11 PAGEID 468–69 (italics emphasis in original, bold emphasis added)). Avsec
closed with the admonition, “If you elect not to respond and/or continue to license the use
of the SLUSH PUPPIE® brand in violation of our client’s rights, be advised that SPL will
not hesitate to seek redress as permitted under the 2000 Agreement.” (Id. PAGEID 469).
Duane Morris attorney Karen C. Kline responded (on September 13, 2018) on
behalf of ICEE, pointing out that (1) the 2000 Appointment was not among the contracts
ICEE acquired from (predecessor-in-interest) DPSU; (2) DPSU and ICEE had always
operated 	under 	the 	1996 	Manufacturing 	Appointment 	and 	the 	1999 	Distributor
Agreement; 	(3) 	SPL 	had 	never 	(before 	February 	28, 	2018) 	mentioned 	the 	2000
Appointment; and (4) there were “serious questions” about the document’s authenticity,
which SPL had failed to support. 	(Doc. 73-19 PAGEID 1541–1543). 	Benesch attorney
Matthew Gurbach responded (on November 6, 2018), reiterating that the 2000 Agreement
“currently governs the relationship” between SPL and ICEE, such that SPL has “the
exclusive right to use the SLUSH PUPPIE trademark in the United Kingdom, Ireland and
elsewhere in Europe.” (Doc. 89-1 PAGEID 2330). Gurbach threatened legal action. (Id.).
F. 	SPL sues ICEE
SPL filed suit against ICEE in the Court of Common Pleas for Hamilton County,
Ohio 	on 	February 	12, 	2019, 	asserting 	causes 	of 	action 	arising 	out 	of 	the 	2000
Appointment (only). (Doc. 2). ICEE removed the suit to the Southern District of Ohio on
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March 8, 2019. (Doc. 1). ICEE answered and counterclaimed against SPL on April 29,
2019. (Doc. 13).
Thereafter, on June 25, 2019, ICEE (through Duane Morris attorney and current
trial counsel David J. Wolfsohn) provided written notice to Mark Peters that it was
terminating the 1996 Manufacturing Appointment and the 1999 Distributor Agreement
because of SPL’s lawsuit. 	(Doc. 29-6). 	The notice quotes from the relevant language
within both agreements, observing that SPL had filed a legal action “other than for
collection on account” against ICEE. 	(Id. PAGEID 575). 	Benesch attorney Gurbach
responded to Wolfsohn (on June 28, 2019) that “ICEE’s purported termination of the 1996
Appointment 	and 	the 	1999 	Distributor 	Agreement 	is 	a 	nullity—each 	has 	been
superseded by the 2000 Appointment.” 	(Doc. 29-7 PAGEID 578 (bold emphasis
added)).
The Court first entered a Calendar in this civil action on October 30, 2019.
(10/30/2019 Minute Entry). 	In connection therewith, SPL filed an Amended and
Supplemental Complaint on December 16, 2019. 	(Doc. 27).21 	The first four claims for
relief asserted causes of action arising out of the 2000 Appointment; the next eight (new)
claims were asserted “in the alternative” and arise out of the 1996 Manufacturing
Appointment and the 1999 Distributor Agreement. (Id.).
ICEE 	answered 	and 	counterclaimed 	against 	SPL 	on 	January 	6, 	2020.
(Doc. 29). 	SPL filed its Answer to ICEE’s counterclaims on January 27, 2020.
(Doc. 	32). 	Throughout, 	SPL 	maintained 	it 	had 	no 	obligations 	under 	the
21 The Amended and Supplemental Complaint was signed by Matthew D. Gurbach, Elizabeth Emanuel,
and Ronald L. House. At various times, all three attorneys withdrew their appearance as counsel of
record (Docs. 50, 68, 141) and they are no longer affiliated with the Benesch law firm.
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1996 Manufacturing Appointment and the 1999 Distributor Agreement because they were
superseded by the 2000 Appointment. 	And SPL reiterated its allegation that “the
purported termination of agreements that were no longer effective is a nullity[.]” (Id. ¶ 39).
Much of ICEE’s efforts in the initial stages of this litigation were focused on the
validity of the 2000 Appointment, which it had persistently questioned since March 2018.
Discovery included the monitored depositions of Ralph Peters and Mark Peters. 	SPL
did its best to stonewall, especially as to Ralph Peters. (See Docs. 30–31, 33, 35, 37–
39, 42, and 44 & Minute Entries dated 01/29/2020 and 02/11/2020). Then came SPL’s
joint motion (filed on April 2, 2020) for a “moratorium” on discovery, nominally based on
the COVID-19 pandemic, and for a protective order to prevent a remote video deposition
of Mark Peters. (Docs. 46, 49, and 51 & Minute Entries dated 05/21/2020, 05/26/2020,
06/03/2020, 06/16/2020, 06/24/2020, and 07/13/2020). On August 27, 2020, ICEE filed
a motion to compel with respect to the November 12, 2008 “Wendsday” email. (Doc. 60
PAGEID 952–53 (“Because the email quotes from the forged Appointment of Trade Mark
Licence, it was obviously created with the intent of trying to prove to this Court and the
jury that the Appointment is genuine.”)). ICEE explained:
Based on a privilege log that plaintiff’s counsel recently
served, SPL’s attorneys have had numerous communications
with SPL’s managing director, Mark Peters, about the forged
email beginning in the spring of 2018, continuing after the email
was 	produced 	in 	discovery 	earlier 	this 	year 	[2020], 	and
concluding at the end of June of this year [2020], when SPL’s
counsel finally wrote to ICEE’s counsel to “withdraw” the
fabricated document. [22] 	According to SPL’s current American
counsel, the forged email was sent by SPL to SPL’s British counsel,
22 (Doc. 60-10 PAGEID 1044). Former trial counsel Matthew Gurbach later testified he withdrew the
“Wendsday” email from production because, “Forged or we couldn’t vouch for the, the – where it came
from. Again, we hadn’t looked at the metadata on, on, on the, on the PDF but, no, we could not vouch for
the authenticity of it.” (Gurbach depo., Doc. 255-1 PAGEID 10510 (287:10–23)).
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RPC (formerly known as Reynolds Porter Chamberlain), who then
forwarded it on April 17, 2018 to the Benesch firm. The email was
produced in discovery in February of this year [2020]. 	Unlike
every other email produced in this case by plaintiff, the email
lacks the metadata that would show when it was created and by
whom. Interestingly, SPL’s privilege log shows that, shortly after the
forged email was produced, plaintiff’s counsel discussed the lack of
metadata numerous times with SPL’s managing director, Mark
Peters, but decided to produce it anyway. Then, without explanation,
plaintiff’s counsel suddenly withdrew the document from production
on June 26[, 2020]—a few days before Mark Peters’ many-times
postponed deposition. 	On August 10[,2020], SPL finally admitted
that 	the 	November 	12, 	2008 	email 	was 	fabricated 	when 	it
responded “admit” to ICEE’s request to admit that the document was
not genuine.
(Id. PAGEID 953–54 (bold emphasis added)). The undersigned granted ICEE’s motion
to compel in an Order docketed on August 31, 2020 (Doc. 62), which it later amended
(on SPL’s motion) on September 10, 2020 (Doc. 67). The Court advised that it “w[ould]
conduct an in camera review of all communications between SPL and Reynolds Porter
Chamberlain relating to the transmission of the November 12, 2008 email from Lindsay
Kirby to Jerry Bird, and reserve[d] ruling on whether the crime-fraud exception to the
attorney-client privilege applies. As to the deposition of Mark Peters, . . . to ensure that
ICEE’s follow-up questions [we]re ‘solely related to the alleged fabrication of the
November 12, 2008 email,’ or—stated another way—limited to inquiries ‘about the
generation, transmission, production, and withdrawal of the November 12, 2008 email,’
at the suggestion of ICEE the Court w[ould] attend the deposition of Mark Peters as it
did the deposition of Ralph Peters.” 	(Id. PAGEID 1127). 	Letter filings followed from
ICEE (Doc. 69) and SPL (Doc. 70).
On October 15, 2020, SPL filed a motion for leave to file a second amended
complaint to withdraw its (four) claims based on the August 8, 2000 Appointment of Trade
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Mark Licence. (Doc. 72). 	In support of its motion for leave to withdraw, SPL conceded
that the 2000 Appointment “is not a genuine document” and any claims premised upon it
“were meritless[.]” (Doc. 85 PAGEID 2176). SPL explained it changed course when, “on
August 24, 2020, [ICEE] produced to SPL’s counsel the report of J. Wright Leonard, which
cast[ ] doubt on the authenticity of the 2000 Agreement. 	Prior to that time, the only
‘evidence’ pointed to by [ICEE] as evidence of lack of authenticity was such things as
misspelling of words, lack of a county name and lack of reference to the document in the
past. 	Although counsel [for SPL] disputes some of the conclusions reached by Ms.
Leonard, after an investigation into Ms. Leonard’s findings, counsel for SPL determined
that it could no longer ethically continue to prosecute claims under the 2000 Agreement.
Accordingly, after consulting with SPL, counsel for SPL properly moved for leave to
amend the complaint to dismiss all claims related to the 2000 Agreement. Doc. 72.” (Doc.
82 PAGEID 2049–2050). 	“SPL did not learn that the 2000 Agreement is not a genuine
document until well after SPL filed its December 16, 2019 Amended Complaint. 	Upon
learning that the claims premised upon the 2000 Agreement were meritless, SPL quickly
moved to withdraw such claims.” (Doc. 85 PAGEID 2176).23
23 Former trial counsel Matthew Gurbach testified that he hired a handwriting expert in late June 2020
(after SPL withdrew the “Wendsday” email from production) to examine the 2000 Appointment. (Gurbach
depo., Doc. 255-1 PAGEID 10598 (375:5–376:2); PAGEID 10599 (376:12–23) (A. . . . And I got that ball
rolling. I don’t know where, where it ended up. That, that had happened – or concluded, I assume
concluded after I had departed. Q. So timing-wise when you left mid[-]August, where was that ball?
A. There were discussions with the, with the handwriting analyst, but I’d never gotten any opinions or
anything like that. Q. All right. Had she asked for stuff? A. Yeah. She had asked for a number of, I
believe, handwriting exemplars.”)).
Vickie L. Willard was the forensic document examiner hired by Gurbach (in mid-July 2020,
according to Willard’s invoice for professional services). (See Doc. 274-13 PAGEID 12710). Notes from
a telephone call with former trial counsel Ronald House and current trial counsel Jennifer Turk indicate,
“Ms. Willard did not disagree with Leonard's ‘red flag’ of potential signature manipulation of Will
Radcliff's signature on the August 8, 2000 letter as a result of the signature being on a line that was
not even with the rest of the writing.” (See Doc. 274-29 PAGEID 12707 (bold emphasis added)). “Ms.
Willard does find fault with Ms. Leonard's conclusion that one can determine that the 2000
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ICEE followed (on October 28, 2020) with this motion for sanctions (Doc. 73)
against SPL, asking for (1) judgment in its favor on all of SPL’s claims pled in SPL’s then-
operative amended complaint (Doc. 27); and an award of all its attorneys’ fees and costs
to date.24
G. 	SPL’s operative complaint
On March 16, 2023, the Court granted ICEE’s Motion (Doc. 175) for Summary
Judgment—as to SPL’s Twelfth Claim for Relief in its Amended and Supplemental
Complaint (Doc. 27). 	(See Doc. 189). 	The Court determined (as a matter of law) that
ICEE’s termination was effective, which precludes SPL from claiming declaratory relief
(or seeking damages) relating to ICEE’s alleged breaches of the 1996 Manufacturing
Appointment or the 1999 Distributor Agreement taking place after June 25, 2019. 	(Id.
PAGEID 6862). The same day the Court granted SPL’s motion (for leave to file a second
amended complaint) to withdraw its claims based on the 2000 Appointment. 	(Doc. 190
PAGEID 6863 (¶ 1)).
SPL’s Second Amended Complaint (“SAC”) (Doc. 191), filed March 23, 2023,
alleged five claims against ICEE: Breach of Contract – Declaratory Judgment (1996
Appointment); Breach of Contract – Declaratory Judgment (1999 [Agreement]); violation
of Ohio Rev. Code §§ 4165.01 et seq ., Ohio’s Deceptive Trade Practices Act (“ODTPA”);
Agreement is the false document rather than the 2011 document in the basis that the signature has
deteriorated more on the 2000 Agreement, indicating that the source document was the 2011 document.”
(See id. (bold emphasis added)). “Willard does not see how one can conclude that the 2000
Agreement is the fake document rather than the 2011 document.” (See id. (bold emphasis added)).
In other words, according to Turk, Willard concluded that either the 2000 Appointment or the 2011
“History of working practise” was a fabrication, but she couldn’t discern which document was the “copy.”
(See Turk depo., Doc. 274 PAGEID 12383 (391:12–21)).
24 ICEE’s second motion for sanctions (Doc. 89) against the Benesch Respondents was filed on January
12, 2021, and remains pending.
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Breach of Contract – Damages (1996 Appointment); and Breach of Contract – Damages
(1999 [Agreement]). 	SPL later moved to withdraw (Doc. 257) its ODPTA claim against
ICEE pursuant to Fed. R. Civ. P. 15(a)(2),25 which the Court allowed (Doc. 299).26 But
“[i]n an exercise of its inherent power to manage its own docket,” the undersigned
declined to grant SPL leave to file a third amended complaint. 	(Id. PAGEID 14546).
Instead, the Court advised that “this civil action will proceed as if SPL had alleged (only)
four claims (Breach of Contract – Declaratory Judgment (1996 Appointment); Breach of
Contract – Declaratory Judgment (1999 [Agreement]); Breach of Contract – Damages
(1996 Appointment); and Breach of Contract – Damages (1999 [Agreement])) in its SAC.”
(Id.).
II. 	ANALYSIS
A. 	Standard
In Chambers v. NASCO, Inc., the Supreme Court explored “the scope of the
inherent power of a federal court [sitting in diversity] to sanction a litigant for bad-faith
conduct.” 501 U.S. 32, 35 (1991). “Because of their very potency, inherent powers must
be exercised with restraint and discretion.” 	Id. at 44 (citing Roadway Express, Inc. v.
Piper, 447 U.S. 752, 764 (1980)). 	“A primary aspect of that discretion is the ability to
fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44.
“As we recognized in Roadway Express, outright dismissal of a lawsuit, which we had
upheld in Link[ v. Wabash R.R. Co., 370 U.S. 626 (1962)], is a particularly severe
25 See SAAP Energy v. Greenwich Ins. Co., No. 1:2-CV-00098-TBR, 2014 WL 12726322, at *4 (W.D. Ky.
May 21, 2014) (under Rule 15(a)(2), court has discretion to allow a plaintiff to withdraw a claim it no
longer wishes to pursue “by way of” an amended pleading).
26 At ICEE’s request, and without objection from SPL, SPL’s ODTPA claim was dismissed with prejudice.
(Doc. 299 PAGEID 14545).
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sanction, yet is within the court’s discretion.” 	Id. (citing Roadway Express, 447 U.S. at
765). 	“Consequently, the ‘less severe sanction’ of an assessment of attorney’s fees is
undoubtedly within a court’s inherent power as well.” 	Id. 	Relevant here, a court may
assess attorney’s fees when a party has acted in “bad faith.” 	Id. (cleaned up). 	“In this
regard, if a court finds ‘that fraud has been practiced upon it, or that the very temple of
justice has been defiled,’ it may assess attorney’s fees against the responsible party[.]”
Id. (quoting Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575, 560 (1946)).
ICEE argues that the decision to file a lawsuit based on forged documents warrants
both the ultimate sanction of a judgment against SPL as well as an award of attorneys’
fees (and costs). See Cerruti 1881 S.A. v. Cerruti, Inc., 169 F.R.D. 573 (S.D.N.Y. 1996).
This Court agrees.
The facts in Plastech Holding Corp. v. WM Greentech Auto. Corp., 257 F. Supp.
3d 867 (E.D. Mich. 2017), are curiously analogous to the record evidence here.
Defendants there moved for sanctions contending that the plaintiff “engaged in bad-faith
conduct by fabricating evidence and submitting it to th[e] Court as an exhibit to the first
and second amended complaints.” 	Id. at 869. 	That exhibit was a signed “Framework
Agreement” that purportedly gave the plaintiff (“PHC”) the “exclusive right” to distribute
passenger vehicles (in the United States) that were manufactured by JAC Motors, a
Chinese entity. Id. at 869–70. Initially the plaintiff sued (only) the defendants that entered
into a separate distribution agreement with JAC Motors despite knowing about its
exclusive relationship with PHC. Id. at 870. Eventually, JAC Motors asked to intervene
in the suit; thereafter, the parties agreed to PHC filing a second amended complaint (to
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which the signed Framework Agreement was again attached) that named JAC Motors as
an additional defendant. Id.
Almost two years after the initial complaint was filed, PHC emailed the defendants
to ask whether they would consent to the filing of a third amended complaint. Id. Of note,
the signed Framework Agreement was not attached as an exhibit to this proposed
pleading. Id. No explanation was offered in the email, nor did it suggest that there were
any irregularities with the document. 	However, the pleading that was filed alleged that
JAC Motors “kept” the signed copy of the Framework Agreement such that PHC didn’t
have an executed copy. Id. Following the depositions of PHC’s current chief executive
officer and its former chief information officer, the defendants took the position that the
signed Framework Agreement on which PHC had relied was “fabricated.” Id. at 871.
PHC “acknowledge[d]” the fabrication. Id. It was created at the behest of PHC’s
former (and since deceased) chief executive officer, who “wanted to have a nice, clean
document to show the dealers and help increase creditability [sic].” 	Id. 	JAC Motors
argued (in its sanctions motion) that PHC emailed the fabricated document to third parties
as proof of the alleged exclusive relationship, hoping to attract financing and cement
dealer relationships. 	Id. 	PHC neither admitted nor denied the purpose of the “prettied-
up” document. Id.
The district judge was tasked with deciding “whether PHC’s use of a fabricated
document as an exhibit to its first and second amended complaints, which served as the
centerpiece for its claims, amount[ed] to either bad-faith conduct or conduct that is
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tantamount to bad faith.” Id. at 873 (citing First Bank of Marietta v. Hartford Underwriters
Inc. Co., 307 F.3d 501, 507 (6th Cir. 2002)). And, if so, the “appropriate” sanction. Id.27
PHC changed lawyers before the third amended complaint (which did not attach
the signed Framework Agreement) was filed. 	Id. at 874–75. 	New counsel argued a
“mistaken belief” that the document was genuine when the first two amended complaints
were filed, but submitted no sworn testimony in support. 	Id. at 875. 	The district judge
found this explanation “unavailing” and ultimately determined that “PHC’s use of the
fabricated agreement was either intentional or, at the very least, unquestionably reckless,
such that its conduct was tantamount to bad faith.” Id. at 875–77. Moreover,
to the extent PHC is suggesting that Defendants were not harmed or
prejudiced by PHC's prior reliance on the fabrication, the record
evidence 	shows 	that 	PHC 	emailed 	the 	fabricated 	Framework
Agreement to GreenTech on November 12, 2014 (approximately one
month before it was filed under seal with the first amended complaint)
to 	demonstrate 	that 	PHC 	and 	JAC 	Motors 	had 	an 	exclusive
relationship. Upon receipt of that fabrication, GreenTech immediately
terminated its business relationship with JAC Motors. Thus, PHC's
use of the fabrication was not innocent, as it claims, because its use
during the pendency of this case had the real-world consequence of
ending Defendants' business relationship.
Id. at 877–78 (record citations omitted). “[A] court's inherent power to dismiss a case and
protect the sanctity of the judicial process is never more compelling than in a situation of
individuals who engage in fraud upon the court.” Id. at 878 (quoting Perna v. Elec. Data
Sys., Corp., 916 F. Supp. 388, 397 (D.N.J. 1995)). 	Accordingly, the Plastech court
concluded that PHC’s use of fabricated evidence warranted dismissal of its claims with
27 The Plastech court satisfied itself that PHC’s due process rights had been preserved. 257 F.Supp.3d
at 873. The defendants’ motions for sanctions provided PHC with fair notice that the court may impose
sanctions pursuant to its inherent authority; PHC, in turn, filed papers in opposition. Id. In addition, PHC
had “participated fully during the hearing on the sanctions motions.” Id. The same is essentially true
here. (See supra n.1).
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prejudice, “[t]o insure the integrity of the judicial process and deter future parties from
engaging in similarly egregious conduct[.]” Id.
B. 	Evidence of SPL’s bad faith
Bad faith “is associated with conduct that is intentional or reckless.” Plastech, 257
F. Supp. 3d at 872 (citing, inter alia, Schafer v. City of Defiance Police Dep’t, 529 F.3d
731, 737 (6th Cir. 2008)). Here, the record evidence supports a finding that SPL’s conduct
surrounding the so-called “2000 Appointment” was undeniably intentional.28
Mark Peters is SPL’s only managing director. 	(Mark Peters depo., Doc. 74
PAGEID 1643 (11:6–20, 12:2–13:2) (taken 7/1/2020)). 	In his words, “I run a very flat
business.” (Id. PAGEID 1643 (13:6)).29 Also in his words, “I am the company.”
Peters consistently describes SPL as “a very small family business[.]” (Id. PAGEID
1644 (17:21–22); see id. PAGEID 1645 (19:8–9), PAGEID 1662 (88–89:11)). 	This
characterization matters, not because it rings true, but because it suits Peters’ David-and-
Goliath mindset:
Q. Is this litigation of any importance to you?
A. Incredibly important.
Q. Why?
A. Because we have been – we’re a small family business that has
worked incredibly hard to make a living and stick within the terms and
conditions of many agreements, and – who owns The Icee Company
of the trademark seem to just want to bully us into anything they
wish to do, and at some point you just have to stand up and say
this is fundamentally wrong, yes.
28 The Plastech court noted a split in the circuits as to the burden of proof, clear and convincing versus a
preponderance of evidence, with no decision yet by the Sixth Circuit. 257 F. Supp. 3d at 873. Even
under the more rigorous clear and convincing standard, the undersigned concludes that SPL’s bad-faith
conduct has been established.
29 “I don’t really run a pyramid business, so it doesn’t work in the classic pyramid business.” (Doc. 74,
PAGEID 1643 (13:3–9)).
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A very large corporation has a lot more money and a lot more
resources and this is incredibly damaging to a small family business.
But at some point you just got to say, I need to – I need to try to do
my best at what I’m doing, and that’s why it’s important.
Q. So you have personally taken charge of the litigation from the
client point of view at Slush Puppie UK?
A. Yes.
(Id. PAGEID 1662 (88:15–89:15) (bold emphasis added)).
Once ICEE acquired the SLUSH PUPPIE® brand (from DPSU) in 2006, Mark
Peters made it his mission to expand SPL’s distribution rights (limited to the United
Kingdom and Ireland) to the same 27 countries for which it had the exclusive right to
manufacture neutral base and syrup. Fair enough. Over the course of ten years or so,
he pitched every angle to ICEE’s principal, Dan Fachner, with no success.30 So, Peters
took a different tack. 	He fabricated a contract that gave SPL just what it wanted: an
“exclusive licence” that “post-dates” both the 1996 Appointment and the 1999 Agreement
and “confirms” SPL rights to use the SLUSH PUPPIE® trademarks “in relation to freezers,
syrups and products” throughout Europe, plus an obligation to pay only a 2.5% (versus
5%) royalty. 	To substantiate his forgery, Peters concomitantly ginned up a revised
“History of working practise” and was careful to replicate Will Ratcliffe’s signature on the
2000 Appointment rather than Diane Menzer’s, inasmuch as Ratcliffe had died but
Menzer—with the potential to challenge authenticity—had not.
30 Peters consulted with his father, Ralph, as to strategy: “Hi Dad Sorry but even the USA lawyers I have
asked just last month says the license to manufacture for Europe clearly states the [sic] all Distribution
Licenses can only be issued by the USA – we have zero wrights [sic] – that is why I say the agreements
our [sic] ambiguous and out dated as that is not how we have been trading. Dan is not good if you attack
him and he with £100,000,000 turnover company has a big stick to hit us with if he feels like it. So I hope
I have positioned my response where he knows that we have been resiving [sic] revenue for licenses and
products sold in Europe for some time. As he is aware of this and not stopping us his position is getting
weaker all the time. Love Mark[.]” (Doc. 73-6 PAGEID 1372–1373 (bold emphasis added)).
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Peters concedes that his February 28, 2018 email was the first time he ever
brought up the 2000 Appointment with anyone at ICEE. 	(Mark Peters depo., Doc. 75
PAGEID 	1759–1760 	(352:11–353:5) 	(taken 	7/13/2020)). 	Fachner 	replied 	almost
immediately, asking why this document hadn’t been “produced or mentioned” all the while
Peters was lobbying for expanded distribution rights and a reduced royalty percentage.
ICEE would spend more than two years, and a boatload of attorneys’ fees, to learn the
answer to that question.
SPL retained the Benesch firm as its “U.S. intellectual property litigation counsel.”
The cease-and-desist letter sent to J&J Snack Foods and ICEE by partner Marc Avsec
provided the seed for this civil action. The Duane Morris firm responded, questioning the
authenticity of the 2000 Appointment. 	Benesch partner Matthew Gurbach, soon-to-be
trial counsel, dug in his heels.
As previously noted, the original Complaint that SPL filed in state court alleged four
claims 	for 	relief 	based 	solely 	on 	the 	2000 	Appointment. 	ICEE 	answered 	(and
counterclaimed), challenging its validity. SPL then filed an Amended Complaint (per the
Court’s original Calendar Order) that still alleged that the 2000 Appointment had been
breached, but, in the alternative, resurrected the 1996 Appointment and the 1999
Agreement. ICEE again answered (and counterclaimed) and filed an “Emergency Motion
to Preserve Evidence by Compelling the Prompt Deposition of the Only Living Party
Signatory to the Purported 2000 Appointment” (Doc. 30). 	To say that SPL “resisted”
would be an understatement. 	In the end, though, notwithstanding a contrived medical
assessment and videotapes suggesting he was too infirm to testify, the undersigned
concluded that Ralph Peters could be deposed with caregivers in attendance. In addition,
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the Court remotely monitored the examination (held on February 24, 2020), which son
Mark Peters attended live. 	Ralph Peters, almost 90 years-old, was coherent and
cooperative, though he remembered very little. He recognized his “signature” on the copy
of the 2000 Appointment he was shown, but took umbrage at the suggestion of now-
former Benesch associate Elizabeth Emanuel that “there are thoughts that this agreement
is a forgery in this lawsuit[.]” 	(See Ralph Peters depo., Doc. 84 PAGEID 2158–2159
(53:10–54:1)). 	With no question pending, he admonished Emanuel, and everyone else
present:
THE WITNESS: I think that to call this a forgery is a joke. How can
you call it a forgery? 	I mean . . . if it is a forgery then I must have
forged [Stefan Loos]’s signature, and Will’s signature and I presume,
I don’t know who that is, but I must have forged all those.
And I must say that if I was in business for myself from when
I was 17 years old here when I was what, [G]od knows what, I was
in business for 50, 60 years, nobody has every accused me of forging
anything. I find that quite annoying to say it is a forgery. I think that
is outrageous to call me a forger. 	I have never done anything
dishonest.
(Id. PAGEID 2159 (54:8–21)). 	Clearly it did not occur to father (Ralph) that son (Mark)
was under suspicion.
The undersigned remotely monitored approximately 80% of the continued-in-
progress deposition of Mark Peters taken on October 9, 2020. 	(See Doc. 76 PAGEID
1830–1871).31 	His testimony generally lacked candor32 and he was entirely averse to
31 Mark Peters was first deposed on July 1, 2020. (See Doc. 74). That deposition was continued in
progress, first to July 13, 2020 (see Doc. 75) and next to September 29, 2020. The September 29
session was postponed to October 9, 2020 (see Doc. 76), because Peters, then occupying an oyster boat
on the River Thames, inexplicably had no laptop to review exhibits.
32 The undersigned was sworn to the Bench on May 25, 2006, nearly 20 years ago. Prior to that, I served
as a state administrative hearing officer and a county (assistant, and later a chief) prosecutor in the felony
trial division. I was subsequently engaged in private practice, both civil and criminal, representing
plaintiffs and defendants, for more than 20 years. The ability to assess a witness’s credibility is part and
parcel of each of these roles.
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answering questions about the not “genuine” 2000 Appointment, the fabricated-in-support
2011 “History of working practise” or the November 12, 2008 “Wendsday” email. 	His
mantra throughout was, “I’m not an IT expert.” 	(See id. PAGEID 1836–1837 (22:7–
26:19),1837 (26:20–28:13), 1837–1838 (29:21–32:18), 1840 (38:17–40:16), 1845–1846
(60:5–65:21), 1848 (70:5–19), 1849 (75:3–76:9), 1850–1851 (78:3–83:14), 1852 (87:11–
19), 1855 (100:7–23), 1863–1864 (130:20–134:22), 1865 (141:2–23), 1871 (165:1–15),
1872 (166:11–167:12), and 1877 (188:3–13)).
Peters claims he first saw the “Wendsday” email when preparing (with counsel) for
his July 1, 2020 deposition. (Doc. 75 PAGEID 1747 (303:6–22)). Following up, ICEE’s
counsel asked for an explanation as to how Kirby could quote from the 2000 Appointment
in her 2008 email when he, Mark Peters, testified he discovered that document (in a box
of his father’s belongings) in 2017. 	(Id. PAGEID 1747–1748 (304:13–307:14), 1749
(309:12–19)). Peters was once again evasive. (Id. PAGEID 1748 (306:19–307:14) (“Q.
Lindsay Kirby is quoting from a document in 2008 that you didn’t have a copy of for nine
more years, right? 	A. No. 	That’s not – she had a paragraph defining how royalty is
calculated. 	Q. And where did she get paragraph 4A from the August 8, 2000,
agreement?[33] A. Don’t know. Q. And doesn’t that strike you – that’s of no interest to you
whatsoever? 	A. No. 	Q. You didn’t have the document, right? 	A. Which document?
Q. The August 8, 2000, Appointment of License agreement that is attached to the
Complaint and the basis for your claims here? A. No. I didn’t have it.”)).
33 See supra p.11–12.
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Mark Peters denied fabricating the 2000 Appointment,34 its companion 2011
“History of working practise,”35 and the November 12, 2008 “Wendsday” email.36 	But
ICEE argues and the Court agrees that the evidence leads to the clear-and-convincing
conclusion that Mark Peters cooked up these documents.
Despite an initial promise to do so, SPL never produced an original “2000
Appointment” or the oldest copy thereof supposedly located in a “file that’s been found in
Malaysia.” 	(See Doc. 74 PAGEID 1670 (119:22–121:14) (“Q. And what sort of courier
was used to sent [sic] it from Malaysia? 	A. I don’t know. 	Q. How long has it been in
transit? 	A. I don’t know.”)).37 	SPL produced metadata for all documents save for the
34 (See Doc. 74 PAGEID 1672 (129:4–13)).
35 (See Doc. 76 PAGEID 1844–1845 (57:17–61:9)).
36 (See Doc. 74 PAGEID 1654 (55:2–57:14); Doc. 76 PAGEID 1838 (31:5–32:18)).
37 Peters testified on July 1, 2020 that the “copy closest to the original” of the 2011 “History of working
practise” also was en route from Malaysia, and would be delivered “to wherever the maid sent it[.]”
(Doc. 74 PAGEID 1692–1693 (209:19–210:17)). When his deposition resumed on July 13, 2020, he
was asked if the package from Malaysia had arrived yet:
A. Not yet.
Q. Not yet?
A. Not yet.
Q. Do you have any explanation for how it would take more than 12 days –
A. No.
Q. – for documents to go from Malaysia to the UK?
A. No.
Q. Do you have any tracking number for this package with a particular courier
like DHL or FedEx?
A. No.
Q. So do you have any information at all about the whereabouts of the package
that’s coming from Malaysia that you think may have documents relating to the
History of Working Practi[s]e in it?
A. No.
Q. And who has that information?
A. Sorry. You have to ask your question again. I’m not clear what you’re asking.
Q. Who would know what happened to this package?
A. The maid. Well, I don’t know.
Q. So there no way for you, the managing director of Slush Puppie UK, to contact
somebody and find out what’s happened to this package?
A. The maid, BB.
Q. BB is the name?
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“smoking gun” ones. When SPL’s hand was forced, ICEE learned that the metadata listed
“markp” as author. 	Peters begrudgingly conceded that he is the only “markp” at SPL.38
Review of Mark Peters’ emails (generally) reveal that he is a poor speller, which would
account for the misspelling of “Wednesday.” More than that, one does not need to be an
“IT expert” in this era of electronic communication to know that Outlook auto-fills the email
header, to include the day of the week, date, and time. 	Plus, fabricating an email from
Lindsay Kirby was somewhat of a safe bet, as she, according to Peters, embezzled
£40,000 from SPL’s bank account and then separated from the company. 	(Doc. 75
PAGEID1750 (313:20–315:14)).
One also cannot overlook the laptop debacles. 	Counsel for ICEE asked Mark
Peters what actions he took to comply with RPC’s (December 2017) litigation hold; he
again equivocated. (Doc. 76 PAGEID 1858–1859 (110:16–117:14)). Peters finally gave
a straightforward answer—he used only one laptop in the 2017–2018 period. 	(Id.
PAGEID 1859 (117:15–17)). 	But, it “malfunctioned” so he took it to a “local shop” in
Monaco for repair:
Q. Monaco, okay. And did you have a backup of –
A. No.
Q. – your hard drive? No?
A. No. We just – the maids – they’re called BB.
Q. BB?
A. Yeah.
Q. What’s the name of the maid in this case?
A. I only know her as BB.
Q. It’s a generic name for maid?
A. I believe so.
(Doc. 75 PAGEID 1761 (359:8–360:24)).
38 (See Doc. 76 PAGEID 1837–1838 (28:2–31:4)).
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A. No.
Q. So you must have lost a lot of data.
A. I don’t – I try – I mainly do phone calls. I’m not so – yeah, I’ve had
hard drives break before. My very first computer, yeah, probably did.
Q. Okay. And would you have any record of getting this repaired
and having them destroy it?
A. No.
Q. So after they destroyed it, did you communicate with them, or you
just said, Hey, that’s great; I didn’t want that anyway?
A. My French is not very good.
Q. I see. Well, how did you – how did – who – did you take – did you
actually take it to be repaired?
A. Yes.
Q. Okay. And what words did you use to describe repair?
A. More sign language than probably anything else.
Q. Okay. Show me – show me on the camera what signs you used?
How do you –
A. I can’t recall but I –
Q. How do you sign –
A. My French is – you always – you always refer to it – you always
have to say to a French person, Bonjour, or something, otherwise
they don’t talk to you, and parlez-vous anglaise?
They go, Un petit peu.
And then you sort of hand the thing over and go, Broken,
broken. Do you repair?
He goes, Yes.
I don’t know. I can’t recall fully. I mean, I just – my French is
– is really – well, my language skills are very poor.
Q. And so then after they destroyed it, how did you find out that
they destroyed it? Was it a phone?
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A. I went to – no I went – I went to get – went to get – went to get
it, and broken, poof.
Q. That was it? So what did you do?
A. I don’t remember the exact conversation.
Q. So – so when they said, poof, what did you do? What did you
say?
A. I just – I don’t recall.
Q. That was it?
A. It’s very French.
Q. And so you left it – you left this poof computer with the repair
person?
A. I did.
Q. You have – do you have any records whatsoever of – of – that
show the name of the repair person for the computer?
A. No.
Q. No records at all?
A. No. They didn’t charge me.
Q. What – what street are they on in Monaco?
A. I don’t recall.
Q. How did you find their name?
A. I don’t recall.
Q. And there’s no way of finding out?
A. This was a while ago. It’s quite transient in Monaco. It may
have been closed.
Q. What do you mean a while ago? I thought you said you don’t
know when it was. What –
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A. It was a while ago. It wasn’t yesterday. So it’s quite transient
in Monaco –
Q. It wasn’t yesterday. Was it the day before?
A. I don’t recall.
Q. When you say “a while ago,” what do you mean?
A. Well, it wasn’t yesterday.
Q. So you had no backup for this computer that was destroyed;
is that what your testimony is?
A. Yes.
Q. And you were not upset with them for destroying your computer
that had no backup?
A. Nothing surprises me anymore. I have the same thing when I take
my car to be repaired.
Q. And when did you tell your attorneys that it had been
destroyed?
A. I can’t recall.
(Id. PAGEID 1860–1861 (118:1–122:3) (bold emphasis added)). 	Peters acquired a
replacement laptop at some later point. Counsel agreed to arrange for it (and his phone)
to be forensically imaged. 	That never happened, though, because Peters’ car—parked
outside of SPL’s headquarters in High Wycombe—was vandalized and the devices
stolen. 	(Id. PAGEID 1872–1873 (168:6–170:24); see Doc. 87-1 (Thames Valley Police
Occurrence 43200255516)).
The Court again agreed to (remotely) monitor Mark Peters’ most recent deposition
(taken January 29, 2026) concerning Peter Splatt’s role in SPL’s transition from SLUSH
PUPPIE® branded products to the new Slushy Jack’s concept. (See Doc. 398-1). This
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time, Peters consistently (and incredibly) responded, “I don’t recall six years ago.” 	The
undersigned does, however.
In the Court’s judgment, the record evidence positively establishes that Mark
Peters forged documents to SPL’s economic gain and then lied about it. 	His perjury
subverted the discovery process in this litigation for nearly two years, wasting time and
money. He also squandered this Court’s resources, which are in short supply.
To some degree, SPL’s counsel argues the playing-field principle of “no harm, no
foul.” But like the defendants in Cerruti, SPL did not withdraw the 2000 Appointment until
Peters was caught.39 169 F.R.D. at 583; see In re Bavelis, 563 B.R. 672, 692–93 (S.D.
Ohio 2017) (citing Cerruti). This argument also fails to account for Peters’ tergiversations
when being deposed. 	See Cerruti, 169 F.R.D. at 583. 	His insincerity and obfuscation
were on full display in an exchange regarding his father, Ralph’s, signature:
Q. – is that your father’s signature?
A. Again, I’m not qualified to say whether that’s my father’s signature,
yes or no.
Q. So you don’t recognize your father’s signature on the document;
is that – is that what you’re saying?
A. I’m just saying I’m not an expert to say that that’s my father’s
signature, yes or no.
Q. I’m not asking whether you’re an expert. You – your father is your
father, right? Ralph Peters is your father, right?
A. You – you—is that a question? Is that – is that –
39 (See generally Transcript of Proceedings, Status Conference via Telephone on Thursday, September
29, 2022, Doc. 174 PAGEID 5645 (28:8–15) (“THE COURT: . . . Although, you know, Eric [Zalud, trial
counsel for SPL], I’ve said this before. It’s kind of hard for me as a neutral party to fathom a Complaint
that’s brought pursuant to a document which supposedly changes the earlier agreements and then, failing
that, you go back to assert a claim based off the earlier agreements. It just seems a little incongruous to
me, but we’ll have to let you guys play out your string and see where it goes.”)).
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Q. Is Ralph Peters – Ralph Peters was your father, right, is your
father?
A. I don’t understand the question. Is Ralph Peters my father?
Q. Yes, that’s the question.
A. Well, he claims to be my father, yes.
Q. Are you denying that Ralph Peters is your father?
A. No. I’m just saying I don’t understand the question. I don’t know
who my – how do I know – yeah, my – he says he’s my father.
JUDGE BARRETT: The question is very simple. 	Is Ralph
your dad?
THE WITNESS: Yes, he’s my dad.
JUDGE BARRETT: Are you familiar with his signature?
THE WITNESS: I’m not – I’m not an expert. I just – I’m not an
expert.
JUDGE BARRETT: Are you familiar with his signature?
THE WITNESS: Not – am I familiar with his signature?
JUDGE BARRETT: Yes. 	Have you seen your dad sign his
name before?
THE WITNESS: Yes.
JUDGE BARRETT: All right. David.
MR. WOLFSOHN: Thank you, your Honor.
BY MR. WOLFSOHN:
Q. And does this look like your father’s signature on page 24?
A. Well, his signature – I don’t think that’s fair. I’m not there. I don’t
know. I really don’t know. My father – I’m not an expert in signatures.
Q. Let’s just take a five-minute break, okay?
(See Doc. 76 PAGEID 1840–1841 (41:5–43:8)).
As a general principle, there is a strong preference in the law for resolving disputes
on the merits and not by default. 	“[J]udgment against an offending party is appropriate
only in extreme circumstances.” 	Cerruti, 169 F.R.D. at 583 (citing Marfia v. T.C. Ziraat
Bankasi, N. Y. Branch, 100 F.3d 243, 248–49 (2d Cir.1996)). 	But, as in Cerruti, “[t]he
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circumstances here are extreme because we are dealing here with repeated rather than
with isolated or discrete abuses.” 	Id. at 583. 	Similarly, Mark Peters’ (and, therefore,
SPL’s) misconduct “did not concern a peripheral or an incidental matter,” but, rather,
“goes to the heart of the case[.]” Id. SPL tenders a remarkable set of circumstances: it
concedes that the sole document (the 2000 Appointment) underpinning the original
Complaint is not “genuine,” but only after contentious discovery and confrontation does it
withdraw that document and matter-of-factly pivot to documents (the 1996 Appointment
and the 1999 Agreement) previously referred to in the First Amended Complaint as
“superseded” by the not “genuine” one.
SPL argues against the imposition of sanctions, period. This all-or-nothing result
is problematic.40
As noted, use of fabricated evidence in Plastech prompted that district judge to
dismiss the plaintiff’s claims with prejudice, “[t]o insure the integrity of the judicial process
and deter future parties from engaging in similarly egregious conduct[.]” 257 F. Supp. 3d
at 878. This Court will do the same, for the same reasons.
The Court also will award ICEE its attorneys’ fees (and costs) for time spent
uncovering Mark Peters’ forgeries, which were crafted to boost SPL’s bottom line. And,
in turn, his own.41
40 On its own initiative, the Court considered whether imposition of some lesser sanction might tick the
boxes of gravitas and deterrence. No other penalty suggested itself.
41 When he was deposed on July 1, 2020, Mark Peters testified that he owned 90% (and his father,
Ralph, the remaining 10%) of the shares in Ralph Peters & Sons, the holding company that owned SPL.
(See Doc. 74 PAGEID 1649 (34:1–35:8)). When he was deposed on October 29, 2025, Mark Peters
confirmed that Ralph Peters & Sons owns 100% of the shares of Frozen Brothers Limited, the successor
company to SPL. (See Doc. 376 18482–18484 (9:22–11:22)). He (now) is the sole (100%) shareholder
of Ralph Peters & Sons; plus, Peters owns 100% of the shares of Frozen Brothers Limited. (Id.).
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III. 	CONCLUSION
Based on the foregoing, The ICEE Company’s (“ICEE”) Motion for Sanctions
against Slush Puppie Limited (“SPL”) (Doc. 73) is hereby GRANTED. 	The four
(remaining) 	claims 	in 	SPL’s 	Second 	Amended 	Complaint—(Breach 	of 	Contract 	–
Declaratory Judgment (1996 Appointment)); Breach of Contract – Declaratory Judgment
(1999 A[greement]); Breach of Contract – Damages (1996 Appointment); and Breach of
Contract – Damages (1999 A[greement]))—are dismissed with prejudice. Additionally,
the Court will award to ICEE its reasonable attorneys’ fees (and costs) incurred through
the filing of its reply in support of sanctions (Doc. 87) on December 2, 2020. ICEE may
also include the fees (and any costs) incurred to submit a fee application to the Court. A
briefing schedule on the matter of fees will be set once trial (on the merits) concludes.42
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT
42 As of this writing, SPL will be responsible to pay 100% of the award. In the event the undersigned
grants the pending Motion for Sanctions (Doc. 89) against past and present trial counsel—collectively
referred to as the Benesch Respondents—liability may either be apportioned or shared as joint and
several.
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