Dahlqvist expressed that he was “puzzled” by Mr. Dahlqvist testified that he construed these statements as direct threats, stating, it was “like I was put into a Sopranos episode” because the conversation was polite, but there was a clearly threatening undertone. authority” could be involved and that there was “real serious ground for concern.” Id. Kleinhendler went on to assert that a “U.S. Kleinhendler stated that he had reviewed Ectosense's “statements” in its “FDA submission.” (ECF No. Dahlqvist, during his original communication with Mr. Van Pee testified that had Saffelberg stopped funding Ectosense, Ectosense would have been unable to sustain this litigation or even continue as a viable business.Īccording to Mr. 181-2 at 1) Although Saffelberg is not party in the instant case, Mr. 181-1 at ¶ 8) At this time, Saffelberg, a private equity company located in Belgium, was a non-controlling, financial minority shareholder in Ectosense. Dahlqvist was to obtain the contact information of Saffelberg Investment nv's (“Saffelberg”) in-house counsel. Kleinhendler's purported purpose during the call with Mr. Kleinhendler mentioned a mutual friend, Shimon Eckhouse. Kleinhendler contacted by phone a member of the Ectosense Board of Directors, Mats Dahlqvist. Two weeks after the AEO production of Ectosense's FDA submissions, Mr. Kleinhendler further testified that he spent a great deal of time with representatives of his client, Plaintiff, in an effort to understand why they believed that WatchPAT was not a proper predicate for NightOwl. A predicate device is one which has already been approved by the FDA and can be used as a comparator for the device seeking FDA approval. Kleinhendler both testified that Ectosense used Plaintiff's WatchPAT product as a “predicate” device in these FDA filings. 181 at ¶ 2) At the Hearing, Bart Van Pee, a founder and Managing Director of Ectosense, and Mr. 1) On March 26, 2021, pursuant to the Protective Order, Ectosense produced, under an Attorneys' Eyes Only ("AEO") designation, communications and submissions to the FDA related to the 510(k) review of its product NightOwl. The Court entered a Protective Order Governing Confidential Materials (the “Protective Order”) in the instant case, on March 7, 2021. Kleinhendler testified that he has a longstanding relationship with Plaintiff as an entity and many of the members of Itamar's Board of Directors. Kleinhendler admitted in his testimony that he has little to no experience with Lanham Act or Intellectual Property claims which are at the heart of the instant case, and further stated that he defers to co-counsel on those issues. Kleinhendler stated that he has been a practicing lawyer for more than 40 years and is licensed in both the state of New York and the country of Israel, with his practice focused on the areas of anti-bribery, corruption, and fraud. Kleinhendler testified at the Hearing that he was first hired by Plaintiff in February of 2021. 121 at ¶ 26) Plaintiff seeks damages as well as other relief for Ectosense's alleged continued use of, and association of its products with, the PAT name and proprietary PAT marks, despite the fact that Ectosense's products are not PAT devices and do not provide a PAT measurement. 121 at ¶ 1) Ectosense is a digital health and medical device company that, like Plaintiff, focuses much of its attention on sleep disorders. 121 at 1) According to the Third Amended Complaint, Plaintiff develops, manufactures, and sells home sleep apnea tests that use its own proprietary peripheral arterial tone, or “PAT”, technology. asserting trademark infringement unfair competition/false designation of origin and false advertising under the Lanham Act, and unfair competition, deceptive trade practices, and trademark infringement under Florida law. 121) against Defendants Ectosense nv and VirtuOx, Inc. filed its Third Amended Complaint (ECF No. On July 6, 2021, Plaintiff Itamar Medical Ltd. 215) The Motions are now ripe for review. 182 219) An evidentiary hearing (the “Hearing”) on the Motion to Disqualify was held before the undersigned via Zoom on November 22, 2021, pursuant to this Court's Order. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida. Dimitrouleas referred the Motions to the undersigned for appropriate disposition or report and recommendation pursuant to 28 U.S.C. 181) and Plaintiff Itamar Medical Ltd.'s (“Itamar”) Motion for Sanctions (ECF No. THIS CAUSE is before the Court on Defendant Ectosense nv's (“Ectosense”) Motion to Disqualify Gene Kleinhendler and Incorporated Motion for Sanctions (the “Motion to Disqualify”) (ECF No. KJRANAS.SNOW, UNITED STATES MAGISTRATE IUDGE.
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