3M Company v. Performance Supply — Declaration of Charles Stobbie ISO TRO/PI
- Date
- 2020-04-24
Summary
The declaration of Charles Stobbie, a Marketing Technologies and Digital Experience Director at 3M, in support of 3M Company's application for a temporary restraining order and preliminary injunction in 3M Company v. Performance Supply, LLC, Case No. 1:20-cv-02949 (LAP)(KNF), in the U.S. District Court for the Southern District of New York. It was executed April 21, 2020 and filed April 24, 2020 as Document 14. The declaration describes 3M's N95 respirator production and its efforts against price gouging and counterfeiting, citing Exhibits 1 through 6. It states that on or about March 30, 2020 Performance Supply sent New York City's Office of Citywide Procurement a formal quote offering seven million purported 3M N95 respirators at $6.05 and $6.35 per mask, attached as Exhibit 7. It states that Performance Supply is not a 3M authorized distributor and that 3M sued on April 10, 2020.
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Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
3M COMPANY,
Plaintiff,
Case No.: 1:20-cv-02949 (LAP)(KNF)
-against-
Jury Trial Demanded
PERFORMANCE SUPPLY, LLC,
Defendant.
DECLARATION OF CHARLES STOBBIE
IN SUPPORT OF PLAINTIFF 3M COMPANY’S APPLICATION
FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I, Charles Stobbie, pursuant to 28 U.S.C. § 1746 and upon penalty of perjury, declare as
follows:
1. I am a resident of the State of Minnesota; over the age of 18; and competent to
make this declaration. I could and would testify as to the matters set forth herein, if called upon
to do so.
2. I am a Marketing Technologies and Digital Experience Director at 3M. Until very
recently, I served as Global Marketing Operations Leader for 3M’s Personal Safety Division. The
information set forth herein is based on my personal knowledge obtained through the course of my
duties at 3M, which include, among other things, 3M’s: (i) brand-development and marketing
efforts for 3M’s Personal Safety Division; (ii) trademark policies; (iii) sales and pricing guidelines;
and (iv) efforts to assist in the battle against COVID-19. The information set forth herein is also
based on my review of records and documents (including electronic records) maintained in the
regular course of 3M’s business, and the complaint in this lawsuit.
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 2 of 9
3. I submit this declaration in support of 3M Company’s application for a temporary
restraining order and preliminary injunction against Defendant Performance Supply, LLC
(“Performance Supply”) in the above-referenced action.
3M’s Efforts In the Battle Against the COVID-19 Public Health Crisis
4. For decades, 3M has been a leading provider of personal protective equipment
(“PPE”) for healthcare professionals, industry workers and the public. This PPE includes N95
respirators, of which 3M is a leading manufacturer.
5. 3M’s N95-rated filtering facepiece respirators have a filtration efficiency of at least
95% against non-oily particles when tested using the U.S. National Institute for Occupational
Safety and Health criteria.
6. As a leading provider of PPE, 3M is “committed to getting personal protective
equipment to healthcare workers”:
7. Among the PPE that 3M is providing to the heroic individuals on the front lines of
the battle against COVID-19 are 3M-brand N95 respirators.
2
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 3 of 9
8. Since the outbreak of COVID-19 in early 2020, 3M has doubled its global output
rate of filtering facepiece respirators, such as N95 respirators, to 1.1 billion per year, to seek to
ensure that adequate supply is available to governments and healthcare personnel, as well as to
workers in other critical industries, including food, energy and pharmaceutical. See Exhibit 1 (3M
Outlines Latest Actions on COVID-19 Response, 3M Company, available at
https://news.3m.com/press-release/company-english/3m-outlines-latest-actions-covid-19-
response (March 31, 2020)).
9. 3M is currently producing 35 million of its 3M-brand N95 respirators each month
in the United States. See Ex. 1; see also Exhibit 2 (3M and Trump Administration Announce Plan
to Import 166.5 million Additional Respirators into the United States Over the Next Three Months,
3M Company, available at https://news.3m.com/blog/3m-stories/3m-and-trump-administration-
announce-plan-import-1665-million-additional-respirators (Apr. 6, 2020)). Approximately 90%
of these respirators are now distributed for use by healthcare workers. See Ex. 1; see also Exhibit
3 (Helping the world respond to COVID-19, 3M Company, available at
https://www.3m.com/3M/en_US/company-us/coronavirus/ (last accessed Apr. 21, 2020)).
10. In the last seven days of March 2020, alone, 3M sent 10 million of its 3M-brand
respirators to healthcare facilities around the United States. See Ex. 1. Over the course of the next
three months, 3M expects to import 166.5 million of its 3M-brand respirators to the United States.
See Ex. 2.
11. To help meet the growing demand for respirators during COVID-19, 3M has
invested the resources needed to double its current global production of 1.1 billion 3M-brand
filtering facepiece respirators, such as N95 respirators, a year to 2 billion respirators a year within
the next 12 months. See Exs. 1, 3.
3
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 4 of 9
12. At the same time, 3M has not increased the prices that it charges for 3M-brand N95
respirators as a result of the COVID-19 pandemic. See, e.g., Ex. 3 (“We have not increased the
prices we charge for 3M respirators in this crisis”).
13. 3M has received public commendation and praise for its contributions to the
COVID-19 pandemic response, particularly with respect to its production of 3M-brand N95
respirators. Based on the public commendation and praise, and widespread media coverage of
3M-brand N95 respirators during the COVID-19 pandemic, the public is more aware now than
ever that 3M manufacturers N95 respirators and other PPE that is essential to helping protect
healthcare personnel and workers by reducing exposure to airborne particles including those that
may contain biological material such as viruses like COVID-19.
3M’s Efforts to Deter Price Gouging and Counterfeiting in Response to the Pandemic
14. In an effort to thwart third-party price-gouging, counterfeiting, and outright fraud
in relation to 3M-brand N95 respirators, 3M has worked closely with law enforcement, retail
partners, and others. For example, on March 24, 2020, 3M’s Chief Executive Officer, Mike
Roman, sent a letter to U.S. Attorney General William Barr, and the President of the National
Governors’ Association, Larry Hogan of Maryland, to offer 3M’s partnership in combatting price-
gouging. See Exhibit 4 (3M Supports Efforts to Curb Pandemic Profiteers, 3M Company,
available at https://news.3m.com/press-release/company-english/3m-supports-efforts-curb-
pandemic-profiteers (March 24, 2020)).
15. In addition, 3M has (a) posted the single-case U.S. list price for several of its 3M-
brand N95 respirators on its website so that customers can more readily identify price-gouging
(see Exhibit 5 (Fraudulent Activity, Price Gouging, and Counterfeit Products, 3M Company,
available at https://multimedia.3m.com/mws/media/1803670O/fraudulent-activity-price-gouging-
4
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 5 of 9
and-counterfeit-products.pdf (Apr. 8, 2020))); (b) created a form on its website through which
customers can report suspected incidents of price-gouging and counterfeiting (see Exhibit 6 (3M
COVID-19 Anti-Fraud, Anti-Price Gouging, and Anti-Counterfeiting Reporting, 3M Company,
available at https://engage.3m.com/covidfraud (last accessed on Apr. 21, 2020)); and
(c) established a fraud “hotline” that customers can call to report suspect incidents of price-gouging
and counterfeiting (see Exh. 3 at p. 3 (“Call the fraud hotline.”)).
16. Collectively, the goal of these efforts is to help protect the public from
inappropriate, counterfeit, and/or inferior products and outrageous and unwarranted price inflation.
3M also actively investigates and acts on complaints in order to protect the goodwill and reputation
of the 3M brand, as well as to protect customers and healthcare workers who rely upon the
availability and proven quality of authentic 3M-brand N95 respirators.
Performance Supply’s Misconduct
17. Unfortunately, and notwithstanding 3M’s efforts, opportunistic third parties
throughout the United States have sought to exploit the increased demand for the 3M-brand N95
respirators by, upon information and belief, offering to sell them for exorbitant prices, selling
counterfeit versions of them, and accepting money for 3M-brand N95 respirators that they do not
possess or are not authorized to sell.
18. Defendant Performance Supply is an example of a third party undertaking unlawful
actions – in this District – seeking to exploit the 3M brand and prey on unwitting customers and
governmental agencies in the midst of the COVID-19 public health emergency.
19. On or about March 30, 2020, on information and belief, Performance Supply sent
Ms. Ebony P. Roberson, a Purchasing Agent at New York City’s Office of Citywide Procurement,
a Formal Quote, offering to sell seven million purported 3M N95 respirators. See Exhibit 7.
5
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 6 of 9
Performance Supply stated that it would sell the respirators for $6.05 per “mask” (respirator) for
2 million 3M Model 8210 respirators and for $6.35 per “mask” (respirator) for 5 million 3M Model
1860 respirators. See id. The prices at which Performance Supply offered to sell New York City
the purported 3M-brand N95 respirators are more than five times 3M’s list price:
3M’s Performance
Per-Respirator Supply’s
3M Model Markup
Single-Case U.S. Per-“Mask”
List Price Price
1860 $1.27 $6.35 500%
8210 $1.02-$1.31 $6.05 460-590%
20. In its one-page Formal Quote, Performance Supply reproduced 3M’s marks nine
times. See Ex. 7 at p. 1. Performance Supply also attached to the Formal Quote a 3M Technical
Specification Sheet for both Models of 3M-brand N95 respirators that Performance Supply
purported to have available for sale. See id. at pgs. 2-6. Plaintiff’s famous 3M design mark, and
well-known 3M Slogan, prominently appeared in the upper left-hand corner of both Technical
Specification Sheets. Id. Plaintiff’s famous 3M design mark appeared in the lower left-hand
corner of both Technical Specification Sheets. Id. Plaintiff’s famous standard-character 3M mark
also appeared in the Technical Specification Sheets. Id.
21. Based on Performance Supply’s Formal Quote, on information and belief, Ms.
Roberson, prepared an “Evaluation Request – Bid Document Review” as part of the City’s quality-
assurance measures. See generally Ex. 7 at pgs. 14-5. In the Evaluation Request, New York City
twice officials identified Performance Supply as a “vendor” of 3M-brand, N95 Model 8210 and
1860 respirators. See id. at p. 14. However, the New York City officials were mistaken.
Performance Supply is not, and never has been, a 3M authorized distributor, vendor, or
representative of Plaintiff’s products. Performance Supply also does not have, and has never had,
an association or affiliation with Plaintiff.
6
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 7 of 9
22. In the Formal Quote, Performance Supply also stated:
“Due to the national emergency, acceptance of the purchase order is at the full
discretion of 3M and supplies are based upon availability. The N95 masks 3M can
begin shipping in 2-4 weeks CIF at any of 3M [sic] plants in the USA or 3M Plants
Overseas according to their manufacturing schedule. 3M choose the plant. Order
may be shipped in whole or in part.” Ex. 7 at p. 1.
23. For purposes of clarity, Performance Supply is not authorized to solicit purchase
orders from customers for submission to 3M for approval. Nor is Performance Supply authorized
to state how, where, or in what quantity such orders would be filled. The Formal Quote does not
accurately describe how 3M fills N95 orders. Indeed, 3M fills orders for its N95 respirators by
accepting purchase orders from 3M’s authorized distributors and wholesalers and, to a lesser
extent, directly from the government. 3M does not accept purchase orders from unauthorized
resellers.
24. Turning back to Performance Supply’s Formal Quote, the same day that Ms.
Roberson received it, she contacted Eileen Simmons, a 3M Business Development Manager for
government markets, for verification of Performance Supply’s claim. Ms. Simmons advised Ms.
Roberson that Performance Supply was not associated with 3M, and so that potential sale was
averted. However, there is nothing to prevent Performance Supply from making similar offers to
other government or healthcare entities around the United States, causing irreparable harm to the
3M brand and putting the public at risk. Accordingly, 3M commenced this lawsuit against
Performance Supply on April 10, 2020.
Performance Supply’s Misconduct Is Causing Immediate and Irreparable Harm to 3M—
Especially in This District
25. As widely reported by the media, New York City, unfortunately, has become the
epicenter of the COVID-19 outbreak in the United States. Despite 3M’s increased production of
respirators, demand still exceeds the supply in hard-hit cities, such as New York City. Thus, city
7
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 8 of 9
officials are resorting to extreme measures to procure PPE, including respirators. For example,
3M recently became aware that certain New York City procurement officials are offering to drive
unknown distances, late at night, to inspect PPE offered by vendors, including purported 3M-brand
N95 respirators. 3M is working to assist these public servants, including those in New York City
and other hard-hit cities. See Ex. 1.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge and that this declaration was executed this 21st day of April, 2020.
_____________________________
Charles Stobbie
8
Case 1:20-cv-02949-JLR-JW Document 14 Filed 04/24/20 Page 9 of 9
CERTIFICATE OF SERVICE
I, A. John P. Mancini, hereby certify that, on April 24, 2020, I filed a true and correct copy
of the foregoing document, titled Declaration of Charles Stobbie in Support of Plaintiff 3M
Company’s Application for a Temporary Restraining Order and Preliminary Injunction, using this
Court’s ECF Filing System. I also certify that, on April 22, 2020, before filing the foregoing
document, I arranged for service of a true and correct copy of it on Defendant Performance Supply,
LLC via personal service and First Class Mail at:
Performance Supply, LLC
c/o Ronald Romano
3 Westbrook Way
Manalapan, New Jersey 07726
/s/ A. John P. Mancini
A. John P. Mancini
Attorney for Plaintiff 3M Company
9
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