Pacific Surf Designs (“PSD”) announced today that it filed a civil lawsuit in the United States District Court for the Southern District of California against, among others, Whitewater West Industries, a Canadian corporation (“Whitewater”), Whitewater’s CEO, Geoff Chutter, its wholly owned U.S. subsidiary, Flowrider, Inc., Flowrider’s President, Marshall Myrman, its licensee, Aquatic Development Group (“ADG”), a New York corporation, and ADG’s VP, David Keim, for violations of the Federal Sherman Anti-Trust Act and the Federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). The suit contains six causes of action, including unlawful monopolistic conduct, unlawful agreements to restrain trade, illegal racketeering, and conspiracy. PSD alleges that, since the inception of the sheet wave market, over 91% of the sheet wave machines installed worldwide have been Whitewater’s Flowrider machine and that Whitewater acts as an illegal monopoly that controls the sheet wave market through unlawful conduct and illegal agreements. In addition, PSD alleges that Whitewater and ADG together control over 97% of the U.S. municipal market for sheet wave machines. Through the use of unlawful exclusionary agreements, filing sham lawsuits, and certain illegal predicate acts under RICO, PSD alleges that Whitewater and ADG have been able to build and maintain an illegal monopoly on the global sheet wave machine market and the U.S. municipal market – harming competition and charging higher prices which ultimately hurts the consumer and taxpayer.
PSD is seeking damages in an amount subject to proof at trial, but believed to exceed $75,000,000, plus treble damages and attorney’s fees under the Federal Sherman Anti-Trust Act and RICO.
The case is pending before the Honorable Roger Benitez, who presided over four separate patent infringement lawsuits previously filed by Whitewater or its subsidiaries against PSD. In one of those cases, on February 20, 2020, Judge Benitez ruled in favor of PSD, finding that the assertion of Whitewater’s U.S. patent 8,088,016 was frivolous and exceptional and awarded legal fees and costs to PSD. In another case, in December 2019, where Whitewater asserted U.S. patent 6,491,589 against PSD, the jury delivered a unanimous verdict in PSD’s favor finding that: (i) PSD did not infringe upon any asserted claims of the ‘589 patent in any way; (ii) the asserted claims of the ‘589 patent were invalid because of anticipation; and (iii) the asserted claims of the ‘589 patent were invalid because of obviousness. In addition, in a stunning finding, the jury ruled that Whitewater, with clear and convincing evidence, submitted material misrepresentations to the USPTO when reviving the ‘589 patent just prior to initiating the litigation in 2015.
About Pacific Surf Designs
PACIFIC SURF DESIGNS, INC., based in San Diego, manufactures the highest quality custom-designed sheet wave surf simulators serving the waterpark, leisure, entertainment and retail industries.
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