BPI Sports, LLC v. Thermolife International LLC, Ronald L. Kramer, Muscle Beach Nutrition LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BPI SPORTS, LLC,
Plaintiff-Cross-Appellant
v.
THERMOLIFE INTERNATIONAL LLC, RONALD L.
KRAMER, MUSCLE BEACH NUTRITION LLC,
Defendants-Appellants
______________________
2023-1068, 2023-1625, 2023-1112
______________________
Appeals from the United States District Court for the
Southern District of Florida in No. 0:19-cv-60505-RS,
Judge Rodney Smith.
______________________
Decided: June 16, 2025
______________________
G REGORY HILLYER, Hillyer Legal, PLLC, Washington,
DC, argued for plaintiff-cross-appellant. Also represented
by N ICHOLAS J OHN SULLIVAN.
MATTHEW J AMES D OWD, Dowd Scheffel PLLC, Wash-
ington, DC, argued for defendants-appellants. Also repre-
sented by ROBERT J AMES SCHEFFEL .
______________________
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 2
Before REYNA, CUNNINGHAM , and STARK, Circuit Judges.
REYNA, Circuit Judge.
The parties cross-appeal a final judgment of the U.S.
District Court for the Southern District of Florida of false
advertising under the Lanham Act and unfair competition
under state law, and a sanctions order. As to the appeal,
we reverse the judgment and affirm the district court’s
sanctions order. We dismiss the cross-appeal as moot.
BACKGROUND
I.
Creatine nitrate is an amino-acid nitrate used in die-
tary supplements. At the time of the trial, appellant Ther-
moLife International LLC (“ThermoLife”) owned several
patents covering creatine nitrate. J.A. 2015, J.A. 2228.
Appellant Ronald Kramer is the president, chief executive
officer, and sole owner of ThermoLife and the chief execu-
tive officer of appellant Muscle Beach Nutrition (“MBN”)
(ThermoLife, Mr. Kramer, and MBN, hereinafter “Appel-
lants” or “defendants”). J.A. 369, ¶¶47–48.
ThermoLife licensed its patented creatine nitrate tech-
nology to manufacturers, including MBN. See J.A. 1278.
From 2017 to 2021, MBN sold a creatine nitrate product
called “CRTN-3.” J.A. 2000–02, J.A. 2320. The label for
CRTN-3 listed the benefit of “increase[d] vasodilation,” in
addition to other benefits. J.A. 2001.
Cross-appellant BPI Sports, LLC (“BPI” or “plaintiff”)
manufactures and sells dietary nutritional supplements
and competes with licensees of ThermoLife. J.A. 365–66,
J.A. 669.
II.
On February 26, 2019, BPI sued ThermoLife and Mr.
Kramer in the U.S. District Court for the Southern District
of Florida for false advertising under the Lanham Act and
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 3
unfair competition under state law in connection with
CRTN-3, as well as false patent marking under the Patent
Act.1 J.A. 200–18. In April 2019, BPI filed an amended
complaint. J.A. 45. ThermoLife and Mr. Kramer moved to
dismiss the amended complaint, arguing that the allega-
tions in the complaint related to MBN, ThermoLife’s licen-
see, and not ThermoLife and Mr. Kramer. J.A. 23. In other
words, it asserted BPI was suing the wrong party. Id.
Before MBN was added to the suit, the parties disputed
discovery of information surrounding an alleged license
agreement between ThermoLife and then non-party MBN.
In February 2020, BPI served ThermoLife and Mr. Kramer
its first set of discovery requests, seeking “[a]ll licenses to
the ThermoLife patents, including licenses with any . . .
third parties[.]” J.A. 25. On March 20, 2020, ThermoLife
produced an alleged license agreement between Ther-
moLife and MBN (“License Agreement”). Id. The License
Agreement listed an effective date of March 16, 2017, but
was otherwise undated. Id. Mr. Kramer signed the docu-
ment on behalf of both companies. Id.
Notably, and undisputedly, Mr. Kramer created the Li-
cense Agreement on March 9, 2020, in an alleged attempt
to memorialize a pre-existing “oral/implied” license be-
tween ThermoLife and MBN. Id. Also undisputedly, Ther-
moLife and Mr. Kramer did not inform BPI in its March 20,
2020, production that Mr. Kramer had created the License
Agreement on March 9, 2020. J.A. 17.
On April 3, 2020, BPI served ThermoLife and Mr. Kra-
mer its second set of discovery requests, seeking to obtain
additional information about the License Agreement.
J.A. 25–26. ThermoLife and Mr. Kramer objected, arguing
that such information was irrelevant because MBN was
1 BPI filed other claims before the district court,
none of which reached trial or are at issue in this appeal.
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 4
not a party to the suit nor an alleged alter ego of the de-
fendants. J.A. 26. On May 26, 2020, BPI filed a second
motion to compel.2 Id.
On June 5, 2020, following a partial grant of defend-
ants’ motion to dismiss the amended complaint, BPI filed
its second amended complaint, adding MBN as a defend-
ant. J.A. 23. On June 10, 2020, defendants notified the
district court that they would agree to indemnify MBN and
to be held jointly and severally liable for any judgment
against MBN if the court maintained the existing pretrial
deadlines. J.A. 23–24. On June 18, 2020, defendants filed
their answer to the second amended complaint, admitting
that MBN was an alter ego of ThermoLife. J.A. 24.
At the June 19, 2020, hearing, the district court or-
dered defendants to provide necessary information about
the License Agreement. J.A. 26. Defendants produced the
underlying metadata for the License Agreement, revealing
that Mr. Kramer created the License Agreement on
March 9, 2020. J.A. 27.
On September 24, 2020, BPI filed a motion seeking
sanctions against the defendants and their attorney, based
on Mr. Kramer’s creation of the License Agreement.
J.A. 28. BPI argued that the creation was done in bad faith
and constituted a fraud on the court. Id.
On July 14, 2021, the district court ordered sanctions
against the defendants but not their attorney (“Sanctions
Order”). J.A. 19. The district court found that Mr. Kramer
acted in bad faith by knowingly fabricating the License
Agreement and repeatedly obstructing discovery to conceal
this fraud. J.A. 15, J.A. 34–35. The district court ordered
that (1) the License Agreement be excluded from trial, (2)
2 BPI had previously filed a motion to compel discov-
ery following defendants’ March 20, 2020, production.
J.A. 49.
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 5
an adverse instruction be given to the jury concerning Mr.
Kramer’s attempt to manufacture favorable evidence and
its effect on his overall credibility, and (3) BPI be awarded
reasonable fees and costs incurred with its motion for sanc-
tions and two motions to compel discovery concerning the
License Agreement. J.A. 19, J.A. 37–38.
In October 2021, BPI tried its three claims to the jury.
See J.A. 500. The jury found that BPI showed false adver-
tising and unfair competition but awarded zero damages.
J.A. 5263–66. The jury found in favor of the defendants as
to the false patent marking claim.3 J.A. 5266. The district
court entered final judgment on October 25, 2021. J.A. 75.
On November 22, 2021, BPI moved for a new trial un-
der Federal Rule of Civil Procedure 59 (“Rule 59 motion”)
based on an alleged compromise verdict. J.A. 3945–53. De-
fendants renewed a motion for judgment as a matter of law
(“JMOL”) under Federal Rule of Civil Procedure 50 (“Rule
50 motion”), arguing that BPI failed to meet its burden of
showing false advertising and unfair competition.
J.A. 3954. The district court denied both motions. J.A. 3–8.
On October 25, 2022, one year after judgment was en-
tered, defendants moved under Federal Rule of Civil Pro-
cedure 60(b) (“Rule 60(b) motion”) for relief from the
judgment and the court’s Sanctions Order. J.A. 3998. The
district court denied this motion as untimely. J.A. 9.
The parties cross-appeal their respective denied mo-
tions. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
3 BPI does not appeal the false patent marking find-
ing. We thus leave that portion of the judgment undis-
turbed. See Advanced Cardiovascular Sys., Inc. v. Scimed
Life Sys., Inc., 261 F.3d 1329, 1335 nn.3–4 (Fed. Cir. 2001).
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 6
D ISCUSSION
I.
As a threshold matter, BPI’s false advertising claim un-
der the Lanham Act and its unfair competition claim under
state law rise and fall together in this case. See, e.g., Sun-
tree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1343
(11th Cir. 2012); see also Appellants’ Br. 69–70; Cross-Ap-
pellant’s Br. 57–58 (“BPI relies on the same arguments ad-
vanced above [concerning the Lanham Act claim] to
support its position . . . on unfair competition.”). BPI’s be-
lated attempt at oral argument to argue otherwise is
waived. SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1319 (Fed. Cir. 2006) (“Our law is well estab-
lished that arguments not raised in the opening brief are
waived.”).
Appellants appeal the district court’s (1) denial of its
Rule 50 motion for JMOL, (2) issuance of the Sanctions Or-
der, and (3) denial of its Rule 60(b) motion. BPI cross-ap-
peals the district court’s denial of its Rule 59 motion. For
the reasons discussed below, we reverse the district court’s
denial of Appellants’ Rule 50 motion for JMOL and enter
judgment in favor of Appellants. We affirm the district
court’s Sanctions Order as to the attorneys’ fees. In light
of our reversal of the judgment, Appellants’ appeal of the
denial of its Rule 60(b) motion and BPI’s cross-appeal are
moot. eSimplicity, Inc. v. United States, 122 F.4th 1373,
1376 (Fed. Cir. 2024). We thus dismiss the cross-appeal as
moot and do not address Appellants’ Rule 60(b) challenge.
II.
We review the denial of post-trial motions for JMOL
under regional circuit law, here the Eleventh Circuit.
Wordtech Sys., Inc. v. Integrated Networks Sols., Inc., 609
F.3d 1308, 1312 (Fed. Cir. 2010). “Under Eleventh Circuit
law, we review a district court’s denial of JMOL de novo,
viewing all evidence in the light most favorable to the
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 7
nonmoving party[.]” Omega Pats., LLC v. CalAmp Corp.,
13 F.4th 1361, 1368 (Fed. Cir. 2021) (citing Hicks v. City of
Tuscaloosa, 870 F.3d 1253, 1257 (11th Cir. 2017)). “JMOL
should be granted only when the [moving party] presents
no legally sufficient evidentiary basis for a reasonable jury
to find for him on a material element of his cause of action.”
Id. (quotations omitted).
To prove a false advertising claim under the Lanham
Act, 15 U.S.C. § 1125(a)(1)(B), a plaintiff must establish
five elements: “(1) a false or misleading advertisement (2)
that deceived, or had the capacity to deceive, consumers;
(3) the deception had a material effect on purchasing deci-
sions; (4) the misrepresented product or service affects in-
terstate commerce; and (5) the plaintiff has been, or is
likely to be, injured by the false advertising.” J-B Weld Co.
v. Gorilla Glue Co., 978 F.3d 778, 796 (11th Cir. 2020). The
failure to establish any one of the five elements is fatal to
a party’s claim. See id.
Here, Appellants argue that they are entitled to JMOL
because no reasonable jury could have found that various
elements of BPI’s false advertising claim were met. See
Appellants’ Br. 34, 44, 57. We agree with Appellants that
no reasonable jury could have found in favor of BPI under
the falsity element of a false advertising claim, i.e., that
CRTN-3 label’s statement of “increase vasodilation” was
literally false. On that basis, we reverse the judgment, and
we need not reach Appellants’ arguments concerning the
other elements of BPI’s false advertising claim.
The falsity element is “satisfied if the challenged ad-
vertisement is literally false, or if the challenged advertise-
ment is literally true, but misleading.” Osmose, Inc. v.
Viance, LLC, 612 F.3d 1298, 1308 (11th Cir. 2010) (quota-
tions omitted). As an initial matter, only literal falsity is
at issue in this appeal. On the verdict form, the jury con-
cluded that CRTN-3’s label of “increase[d] vasodilation”
was literally false. J.A. 5263. On that same form, the jury
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 8
did not reach whether the alleged misrepresentation was
misleading. Id. On appeal, BPI does not argue that to the
extent we disagree with the jury verdict on the literal fal-
sity element, we should affirm on the alternative ground
that CRTN-3’s statement of “increase[d] vasodilation” was
misleading. Cross-Appellant’s Br. 46–50. BPI’s one con-
clusory statement that Appellants’ advertisement was
“misleading” in a subsection header of its brief, Cross-Ap-
pellant’s Br. 46, does not preserve for appeal any argument
that the advertisement was misleading. SmithKline, 439
F.3d at 1320 (noting that “mere statements of disagree-
ment” with the lower court do not amount to a developed
argument). Thus, we focus our analysis only on the literal
falsity element.4
Here, no reasonable jury could have concluded that
CRTN-3’s statement of “increase vasodilation” was literally
false. BPI’s own evidence shows that the dosage disclosed
in CRTN-3’s label would “cause vasodilation” for people
weighing 113 pounds or less. See J.A. 776, 199:8–13 (BPI’s
expert testifying that “[i]n order for 319.4 milligrams of
[creatine] nitrate [in CRTN-3] to cause vasodilation, the
4 And in any event, no reasonable jury could have
concluded that CRTN-3’s statement of “increase vasodila-
tion” was misleading. If an advertisement is not literally
false—as is the case here—the movant must provide evi-
dence that the misleading statement resulted in consumer
deception. Johnson & Johnson Vision Care, Inc. v. 1-800
Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir. 2002). While
consumer surveys or market research are not required, a
moving party must provide “expert testimony or other evi-
dence.” Id. (quotations omitted). Here, BPI presented no
evidence to the jury that CRTN-3’s label of “increase vaso-
dilation” deceived consumers into purchasing CRTN-3 and
thus BPI’s misleading claim necessarily fails. See Appel-
lants’ Br. 54, 57; Cross-Appellant’s Br. 46–50.
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 9
body weight would have to be about 113 pounds”). Thus,
BPI’s own expert admits that it is not literally false that
CRTN-3 “increase[s] vasodilation.”
BPI argues that CRTN-3’s “increase vasodilation”
statement is “literally false” because the evidence shows
that the dosage amount of creatine nitrate needed for “an
average adult in the U.S. weighing 177 pounds” is more
than the amount disclosed in CRTN-3. Cross-Appellant’s
Br. 46–47. This argument, however, supports the conclu-
sion that CRTN-3’s “increase vasodilation” statement is not
literally false. BPI, like its expert, concedes that CRTN-3
increases vasodilation in some people. BPI’s argument
fails because there is no statement on the label that, for
instance, the product “increases vasodilation” for the “av-
erage adult . . . weighing 177 pounds.” It merely stated
that it will “increase vasodilation.” J.A. 2001. BPI pro-
vides no legal or factual support for its theory that
CRTN-3’s statement of “increase vasodilation” applies only
to the “average adult . . . weighing 177 pounds.”
Because no reasonable jury could find CRTN-3’s state-
ment of “increase vasodilation” is literally false, BPI’s Lan-
ham Act claim for false advertising necessarily fails. We
reverse the district court’s judgment as to the false adver-
tising and unfair competition claims.5
III.
Appellants appeal the district court’s Sanctions Order.
Appellants’ Br. 70. We note that Appellants’ challenge is
largely mooted by our reversal of the judgment. Because
we enter judgment in Appellants’ favor, Appellants’
5 As previously noted, the unfair competition claim
is dependent on the false advertising claim. Also, as previ-
ously noted, we leave the portion of the judgment as to the
false patent marking claim undisturbed. See Advanced
Cardiovascular, 261 F.3d at 1335 nn.3–4.
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 10
challenges to portions of the Sanctions Order concerning
an adverse jury instruction and other evidentiary issues
are no longer at issue. eSimplicity, Inc., 122 F.4th at 1376.
The only portion of the Sanctions Order that remains ripe
for review is the district court’s award of attorneys’ fees.
For the reasons discussed below, we affirm the district
court’s Sanctions Order as to the attorneys’ fees.
A district court has inherent authority, which is gov-
erned “by the control necessarily vested in courts to man-
age their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Chambers v. NASCO,
Inc., 501 U.S. 32, 43 (1991) (quotations omitted). A court
may exercise this power to sanction a party who has acted
in bad faith after making such a finding. Id. at 45–46; see
also Purchasing Power, LLC v. Bluestem Brands, Inc., 851
F.3d 1218, 1223 (11th Cir. 2017). “The inherent power
must be exercised with restraint and discretion.” Purchas-
ing Power, 851 F.3d at 1225. It is a remedy “for rectifying
disobedience, regardless of whether such disobedience in-
terfered with the conduct of the trial.” Id.
Appellants argue that the district court’s Sanctions Or-
der runs afoul of Purchasing Power. Appellants’ Br. 71–72.
According to Appellants, Purchasing Power requires a dis-
trict court to first determine that bad faith was the “only”
explanation for the alleged sanctionable conduct before un-
locking its inherent power to sanction. Appellants’ Br. 72.
And according to Appellants, the district court did not
make this finding, and thus, its use of its inherent author-
ity was erroneous. Id. We disagree with Appellants’ read-
ing of Purchasing Power. That case provides that “in the
absence of direct evidence of subjective bad faith, this
standard can be met if an attorney’s conduct is so egregious
that it could only be committed in bad faith.” 851 F.3d at
1224–25. In other words, a party may show bad faith by
establishing that the conduct was so egregious, it was only
committed in bad faith. This proposition does not mean
that a district court is required to find that bad faith is the
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 11
only explanation for the bad conduct at issue before issuing
sanctions. Appellants’ reading of Purchasing Power is mis-
placed.
Appellants argue that the Sanctions Order is based on
a “clearly erroneous view of the evidence,” and thus should
not stand. Appellants’ Br. 73. In particular, Appellants
argue that they did not “fabricate[]” the License Agreement
for use in the litigation below. Appellants’ Br. 73–74. But,
even assuming Appellants did not fabricate the License
Agreement, the district court rested its Sanctions Order on
additional, sufficient findings. The district court found
that Appellants (1) withheld information surrounding the
circumstances of the License Agreement until compelled to
release this information and (2) attempted to prevent dis-
covery of the circumstances surrounding the creation of the
License Agreement. J.A. 16–17 (finding that Mr. Kramer
“initially tried to pass” the License Agreement “off as legit-
imate to advance his case” and “impeded the presentation
of [BPI’s] case”); J.A. 17 (“During discovery, after compelled
to do so by the Court, Defendants disclosed the metadata
associated with the License Agreement[.]” (emphasis
added)); id. (noting that Appellants “tried to prevent dis-
covery of the circumstances surrounding the License
Agreement” by offering to indemnify and hold MBN harm-
less if the court maintained the existing pretrial deadlines).
These findings are not clearly erroneous and are sufficient
to support a bad faith determination. Chambers, 501 U.S.
at 46 (noting that bad faith may exist where a “fraud has
been practiced upon [the court], or that the very temple of
justice has been defiled” (quotations omitted)). Thus, we
see no error in the district court’s sanction of attorneys’
fees. Purchasing Power, 851 F.3d at 1225 (explaining that
a district court’s inherent power “is for rectifying disobedi-
ence” and for “vindicating judicial authority”).
In sum, the district court did not abuse its discretion in
issuing its Sanctions Order. We affirm the Sanctions Or-
der as to the attorneys’ fees.
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BPI SPORTS, LLC v. THERMOLIFE INTERNATIONAL LLC 12
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. We reverse the judgment of
false advertising under the Lanham Act and unfair compe-
tition under state law. We affirm the district court’s Sanc-
tions Order. We dismiss the cross-appeal.
JUDGMENT REVERSED, SANCTIONS ORDER
AFFIRMED, CROSS-APPEAL DISMISSED
COSTS
No costs.
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