Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1191539
`
`Filing date:
`
`02/16/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`92076463
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Defendant
`Mad Dogg Athletics, Inc.
`
`KONRAD GATIEN
`KEATS GATIEN LLP
`120 S. EL CAMINO DR SUITE 207
`BEVERLY HILLS, CA 90212
`UNITED STATES
`Primary email: uspto@keatsgatien.com
`Secondary email(s): matt@keatsgatien.com, kg@keatsgatien.com
`424-302-0717
`
`Other Motions/Submissions
`
`Matthew E. Graham, Associate Attorney of Record
`
`uspto@keatsgatien.com
`
`/s/
`
`02/16/2022
`
`Attachments
`
`Judicial Notice w. Exhs (f).pdf(5995955 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`In the Matter of Reg. No. 2,424,295
`
`
`Peloton Interactive, Inc.,
`
`Petitioner,
`
`
`
`v.
`
`
`
`Mad Dogg Athletics, Inc.
`
`
`
`Registrant.
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Cancellation No. 92076463 (Parent Case)
`Cancellation No. 92076469
`Cancellation No. 92076471
`Cancellation No. 92076483
`Cancellation No. 92076499
`Cancellation No. 92076516
`Cancellation No. 92076554
`
`
`
`REGISTRANT’S REQUEST FOR JUDICIAL NOTICE NO. 1
`IN SUPPORT OF MOTION TO COMPEL
`DEPOSITIONS OF JOHN FOLEY AND HISAO KUSHI
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`REGISTRANT’S REQUEST FOR JUDICIAL NOTICE NO. 1
`IN SUPPORT OF MOTION TO COMPEL
`DEPOSITIONS OF JOHN FOLEY AND HISAO KUSHI
`
`Pursuant to Federal Rule of Evidence 201, Registrant Mad Dogg Athletics, Inc. (“Mad
`
`Dogg”), by and through its attorneys, respectfully requests that the Trademark Trial and Appeal
`
`Board (the “Board”) take judicial notice of the following evidence in support of Mad Dogg’s
`
`Motion to Compel the Depositions of John Foley and Hisao Kushi (the “Motion to Compel”),
`
`namely, John Foley is no longer the CEO of Petitioner Peloton Interactive, Inc. (“Petitioner”):
`
`Exhibit No.
`
`Evidence
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`
`
`///
`
`
`
`Business Insider article, “Peloton CEO John Foley is stepping down and the
`company plans to cut about 2,800 jobs,” dated February 8, 2022, available at
`https://www.businessinsider.com/peloton-ceo-john-foley-is-stepping-down-
`wsj-2022-2.
`CNBC article, “The fall of Peloton’s John Foley and the stock market’s big
`founder problem,” dated February 12, 2022, available at
`https://www.cnbc.com/2022/02/12/the-fall-of-pelotons-john-foley-and-the-
`markets-big-founder-problem.html.
`New York Post article, “Struggling Peloton built bike empire by bullying its
`competitors in court: suit,” dated February 9, 2022, available at
`https://nypost.com/2022/02/09/peloton-built-empire-by-bullying-competitors-
`in-court-suit/.
`United States Securities and Exchange Commission, Peloton Interactive, Inc.,
`Form 8-K, dated February 5, 2022, available at
`https://www.sec.gov/ix?doc=/Archives/edgar/data/1639825/000163982522000
`014/pton-20220205.htm.
`Offer Letter by and between Barry McCarthy and the Registrant, dated
`February 7, 2022, available at
`https://www.sec.gov/Archives/edgar/data/1639825/000163982522000014/pelot
`on-mccarthyemployment.htm.
`Press Release Announcing Board Appointments, dated February 8, 2022,
`available at
`https://www.sec.gov/Archives/edgar/data/1639825/000163982522000014/press
`releaseannouncingboar.htm.
`Press Release Announcing Leadership Transitions, dated February 8, 2022,
`available at
`https://www.sec.gov/Archives/edgar/data/1639825/000163982522000014/press
`releaseannouncinglead.htm.
`
`- 1 -
`
`

`

`These facts are properly subject to judicial notice not only because they are “generally
`
`known” but also because they can be “accurately and readily determined from sources whose
`
`accuracy cannot reasonably be questioned.” FRE § 201(b); see also TBMP § 704.12; 37 C.F.R. §
`
`2.122(a).
`
`This evidence is relevant to Registrant’s Motion to Compel the deposition of John Foley
`
`because Petitioner’s opposition to the Motion is based primarily on an assertion of the so-called
`
`“apex doctrine,” however this evidence confirms that Mr. Foley is no longer Petitioner’s CEO
`
`and as such is not an “apex” witness.
`
`Accordingly, Mad Dogg respectfully requests that the Board take judicial notice of the
`
`above facts, which support Mad Dogg’s motion to take a full day deposition of Mr. Foley, or to
`
`be concluded in a shorter period of time if warranted under the circumstances.
`
`Date: February 16, 2022
`
`Respectfully submitted,
`
`_______________________
`Matthew E. Graham
`Keats Gatien, LLP
`Attorneys for Registrant
`Mad Dogg Athletics, Inc.
`
`- 2 -
`
`

`

`CERTIFICATE OF SERVICE
`
`
`
`
`I hereby certify that on February 16, 2022, I served the following document(s):
`
`
`REGISTRANT’S REQUEST FOR JUDICIAL NOTICE NO. 1
`IN SUPPORT OF MOTION TO COMPEL
`DEPOSITIONS OF JOHN FOLEY AND HSIAO KUSHI
`
`
`
`upon Petitioner’s counsel named below:
`
`
`Jennifer L. Barry
`Latham & Watkins LLP
`12670 High Bluff Drive
`San Diego, California 92130
`jennifer.barry@lw.com, steve.feldman@lw.com,
`ipdocket@lw.com, allison.blanco@lw.com,
`alethia.corneil@lw.com.
`
`
`by electronic mail on the same date.
`
` I
`
` declare under penalty of perjury under the laws of the United States of America that the
`foregoing is true and correct.
`
`Executed on February 16, 2022, at Takoma Park, Maryland.
`
`
`
`
`_________/s/__________
` Matthew E. Graham
`
`
`
`
`
`- 3 -
`
`

`

`EXHIBIT 1
`EXHIBIT 1
`
`

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`Peloton CEO John Foley is stepping down and the company
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`Peloton CEO John Foley in 2019. Matt Winkelmeyer/Getty Images
`
`Peloton CEO John Foley is stepping down, the company announced on Tuesday.
`
`He's being replaced by Barry McCarthy, a former CFO of Spotify and Net(cid:80)ix.
`
`Peloton is slashing about 2,800 jobs to cut costs amid falling demand.
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`Peloton cofounder John Foley is relinquishing his role as CEO, the company said on
`
`Tuesday.
`
`Foley, who cofounded Peloton in 2012, is set to become executive chair. Barry
`McCarthy, formerly a chief (cid:112)nancial o(cid:150)cer of Spotify and
`Net(cid:113)ix
`
`, is expected to
`
`replace Foley as CEO. McCarthy is also replacing William Lynch as president.
`
`The connected-(cid:112)tness company plans to slash about 2,800 jobs, or 20% of its
`
`corporate workforce, as part of cost-cutting measures that come on the back of falling
`demand for at-home (cid:112)tness.
`
`The news was (cid:112)rst reported by The Wall Street Journal.
`
`H O M E PA G E
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`Subscribe
`
`The (cid:112)rm expects the measures to deliver at least $800 million a year in savings. It also
`
`

`

`announced it would be "winding down development" of Peloton Output Park, its
`
`planned $400 million Ohio facility.
`
`Peloton saw demand for its products soar during the pandemic as lockdowns forced
`gym-goers to (cid:112)nd options for working out at home. But growth started to slow as
`
`restrictions eased, and reports emerged in January of pauses in production of Peloton
`
`bikes and treadmills because of a slowdown in orders.
`
`Peloton's market value has plummeted from $50 billion last year to $9.8 billion.
`
`In late January, activist investor Blackwells Capital called on Peloton to (cid:112)re Foley and
`
`explore options to sell the company. The Journal reported on Friday that several
`
`potential buyers, including Amazon, were eyeing a deal, while the Financial Times
`
`reported on Saturday that Nike was considering making a bid for the business.
`
`Foley and McCarthy told The Journal on Tuesday that the company had been
`planning to (cid:112)nd a new CEO for a long time. "I have always thought there has to be a
`
`better CEO for Peloton than me," Foley said. "Barry is more perfectly suited than
`H O M E PA G E
`anybody I could've imagined."
`
`Subscribe
`
`McCarthy is a board member at Instacart and Spotify.
`
`

`

`Peloton's stock fell 8.7% in Tuesday's premarket session, to $27.11 a share. Shares were
`
`down 18% this year as of Monday's close.
`
`K E E P R E A D I N G
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`EXHIBIT 2
`EXHIBIT 2
`
`

`

`CNBC DISRUPTOR 50 | 2021 LIST | 2020 LIST | 2019 LIST | 2018 LIST | METHODOLOG
`
`C N B C D I S R U P TO R 5 0
`
`The fall of Peloton’s John Foley and the stock
`market’s big founder problem
`
`P U B L I S H E D S AT, F E B 1 2 2 0 2 2 (cid:149) 1 0 : 1 9 A M E S T U P DAT E D M O N , F E B 1 4 2 0 2 2 (cid:149) 4 : 3 5 P M E S T
`
`Ian Thomas
`@ BY I A N T H O M A S
`
`KEY POINTS
`
`WATCH LIVE
`
`Peloton founder John Foley stepped down from his CEO role on Feb. 8 following
`
`a tumultuous period for the connected fitness company.
`
`The departure of Foley, who led the company since its iteration in 2012,
`
`resurfaces the question of how long a company needs to be “founder-led.”
`
`A recent study suggests that while founder-CEOs increase the value of a
`
`company before and during an IPO, that boost starts to diminish compared to a
`
`
`
`non-founder CEO.
`M A R K E T S
`
`WATC H L I S T
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`C N B C T V
`
`
`
`M E N U
`
`

`

`In this article
`
`PTON UNCH
`
`John Foley, co-founder and chief executive officer of Peloton Interactive Inc., stands for a photograph during the company’s
`initial public offering (IPO) in front of the Nasdaq MarketSite in New York, U.S., on Thursday, Sept. 26, 2019.
`
`Michael Nagle | Bloomberg | Getty Images
`
`Roughly two months after Peloton’s IPO, founder John Foley appeared on CNBC’s
`
`“Closing Bell” where he touted the “predictability of the revenue” of the connected
`
`fitness company.
`
`“We know how to grow and stick the landings on what we tell the Street, what we tell
`
`our board and our investors [about] how we’re going to grow,” Foley said in that Nov. 5,
`
`2019 interview.
`
`
`
`M A R K E T S
`
`
`
`C N B C T V
`
`
`
`WATC H L I S T
`
`
`
`M E N U
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`

`

`That’s a very different tone from what Foley said on the company’s second-quarter fiscal
`2022 conference call on Feb. 8, where he acknowledged that the company had “made
`
`missteps along the way,” that it was “holding ourselves accountable,” and he was going
`
`to “own” that — which included his departure as CEO, several executive and board
`
`changes, and a wide range of cost-saving measures, including cutting roughly 20% of its
`
`corporate workforce.
`
`Peloton, a two-time CNBC Disruptor 50 company, had been led by Foley since it was
`
`founded in 2012, and his fellow founders Tom Cortese, Yony Feng, and Hisao Kushi
`
`have remained as senior executives. The other co-founder, Graham Stanton, left in
`
`March 2020 but has stayed on as an advisor, per his LinkedIn.
`
`Peloton’s bumpy road that has seen its stock price drop more than 73% over the last
`
`year has raised the question of how long a founder-CEO like Foley should hang on post-
`
`IPO, especially if that journey starts to look more like a HIIT and hills ride than an easy
`
`one.
`
`The track record is very varied. On one side, you have a founder like Jeff Bezos who
`stayed on as CEO for more than 20 years after Amazon’s IPO with massive growth
`
`along the way. Of course, there’s Steve Jobs, who ended up leaving Apple amid board
`
`tensions after he hired “professional CEO” John Sculley, only to ultimately return to
`
`oversee one of the most remarkable business turnarounds in market history. On the
`
`other side, you have Groupon founder Andrew Mason, who was fired as CEO in 2013,
`
`roughly 18 months after the company went public, following a series of Wall Street
`
`misses, a declining stock price and very-public mishaps.
`
`Jeffrey Sonnenfeld, senior associate dean for leadership studies at Yale School of
`Management, said that 20 to 30 years ago, the trend from many venture capitalists
`
`would be to push out founding management at a critical change in the life stage of a
`
`company, “then the quote-unquote ‘professional management’ came in,” he said.
`
`That’s happening less now, and Sonnenfeld said that some of that is for good reasons,
`
`like having a more experienced leadership group in place that has experience leading
`
`companies through various lifecycles. Foley did, with Barnes & Noble and other start-
`
`
`
`
`M A R K E T S
`
`C N B C T V
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`WATC H L I S T
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`
`
`M E N U
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`

`

`ups. But there are bad reasons, such as “founder shares that secure your leader-for-life
`
`status in the empire,” he said. In the case of Peloton, where Foley will remain chairman,
`
`he and other company insiders still control about 60% of the company’s voting stock.
`
`Peloton did respond to a request for comment by press time.
`
`When is it time for a founder to step aside?
`
`More founders, especially in tech, are replacing themselves. Manish Sood, who founded
`
`cloud data management company Reltio, wrote in a 2020 CNBC op-ed that the reason
`
`he replaced himself as CEO after nearly a decade in charge is that he “recognized that
`
`to sustain predictable hyper-growth requires a special set of skills, and Reltio would
`
`require a CEO with experience leading public companies.”
`
`“Preparing for growth takes courage at all phases,” Sood wrote. “In the beginning,
`
`entrepreneurs often risk everything to start companies because they believe in a new or
`different vision. They often face seemingly insurmountable obstacles. It takes a great
`deal of insight to recognize when an emerging growth company needs to pivot or
`
`change direction as it grows.”
`
`Jack Dorsey shared a similar sentiment when he suddenly stepped down as Twitter
`
`CEO in November.
`
`“There’s a lot of talk about the importance of a company being ‘founder-led.’
`
`Ultimately I believe that’s severely limiting and a single point of failure…I believe it’s
`
`critical a company can stand on its own, free of its founder’s influence or direction,”
`
`Dorsey wrote in a memo to Twitter employees.
`
`There have been some efforts to try to figure out exactly what that founder-CEO shelf
`life is. A recent Harvard Business Review study of the financial performance of more
`
`than 2,000 publicly traded companies found that on average, founder-led companies
`
`outperform those with non-founder CEOs.
`
`However, that difference essentially drops to zero three years after the company’s IPO,
`and at that point, the founder-CEOs “actually start detracting from firm value.”
`
`
`
`
`
`
`M A R K E T S
`
`C N B C T V
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`WATC H L I S T
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`M E N U
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`

`

`“Our data shows that the presence of a founder-CEO increases firm value before and
`
`during IPO, suggesting that a founder-friendly approach actually makes a lot of sense
`
`for VCs, who typically invest while companies are still in their earlier stages and cash
`
`out shortly after they IPO,” the authors wrote. “However, given our finding that on
`
`average, post-IPO performance is lower for firms with founder-CEOs, investors looking
`
`to get in after a company has already gone public would be wise to take a less founder-
`
`friendly approach — and investors, board members, and executive teams alike will
`
`benefit from proactively encouraging founder-CEOs to move on before they reach their
`
`expiration dates.”
`
`It’s unclear what the future holds for Peloton and if it can regain the momentum that
`
`saw it disrupt the fitness industry.
`
`The company’s new CEO, Barry McCarthy, cited his experience working with two
`
`“visionary founders” in Reed Hastings and Daniel Ek at Netflix and Spotify,
`respectively, in his first email to Peloton staff, which was obtained by CNBC, saying that
`he is “now partnering with John [Foley] to create the same kind of magic.”
`
`“Finding product/market fit is incredibly hard to do. It’s extremely rare. And I believe
`
`we have it,” McCarthy wrote. “The challenge for us now is to figure out the rest of the
`
`business model so that we can win in the marketplace and on Wall Street.”
`
`Sign up for our weekly, original newsletter that goes beyond the annual Disruptor 50 list,
`offering a closer look at companies like Peloton before they go public, and founders who
`continue to innovate across every sector of the economy.
`
`
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`M A R K E T S
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`C N B C T V
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`WATC H L I S T
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`
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`
`
`M E N U
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`

`

`V I D E O 0 3 : 1 2
`
`Is Peloton geared up for a turnaround? Here are both sides of the argument
`
`In this article
`
`PTON UNCH
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`OGIG | "My Growth Allocation"
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`M E N U
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`

`

`These are the 2021 CNBC Disruptor 50 companies
`
`Freight forwarding firm Flexport raises nearly $1 billion, adds Shopify, Michael
`Dell as investors
`
`MORE IN CNBC DISRUPTOR 50
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`Freight forwarding firm Flexport raises nearly $1 billion in funding,
`adds Shopify, Michael Dell as investors
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`EXHIBIT 3
`EXHIBIT 3
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`,23.77256  ,2857 687
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`By Lisa Fickenscher
`
`February 9, 2022 5:44pm
`
` Updated
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`

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`A Peloton rival accused the fitness company of squashing its competition with "baseless litigation."
`
`Getty Images
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`Fugitive Jho
`! 
`Low paid stars
`#
`like DiCaprio,…
`
`Two NJ women
`charged after
`baby dies from…
`
`Brian Laundrie’s
`full autopsy
`released with…
`
`Anthony Weiner
`embarrassed by
`Sean Hannity…
`
`Elon Musk
`blames ‘fun
`police’ for Tesl…
`
`Banned airline
`passenger spits
`at cop, poops i…
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`New Peloton CEO claims sale of company not ‘likely’ in ‘the foreseeable future’
`
`Peloton layoffs felt ‘sudden’ and ‘scripted,’ ex-employee says
`
`Laid-off Peloton employees crash new CEO’s first company meeting: report
`
`Disgraced ex-Peloton CEO not ‘scaling back’ role despite fumbles: leaked email
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`Peloton built its faltering exercise-bike empire partly by bullying competitors over technology
`patents, according to an explosive court filing — and in one case allegedly paid a smaller
`rival nearly $25 million in a sham agreement designed to burnish its dominant image.
`
`The New York-based fitness brand — which on Tuesday revealed CEO John Foley will step
`down as it fires 2,800 workers because of plunging post-pandemic sales — amassed its
`outsize market share through an aggressive, yearslong legal campaign in which it attacked
`rivals over patents to make bikes and treadmills that enable customers to watch live
`instructors while working out, according to the filing.
`
`But in one notable case two years ago, Peloton allegedly cut a secret agreement with its
`smaller, struggling rival FlyWheel Sports in which it paid the now-bankrupt company $24.5
`million to falsely claim it had infringed on Peloton’s patents. In reality, Flywheel was in the
`middle of a patent review with US regulators and challenging Peloton, whose own patents
`were on shaky ground, according to the filing.
`
`

`

`Fugitive Jho
`Low paid stars
`like DiCaprio,…
`
`Two NJ women
`charged after
`baby dies from…
`
`Brian Laundrie’s
`full autopsy
`released with…
`
`Anthony Weiner
`embarrassed by
`Sean Hannity…
`
`Elon Musk
`blames ‘fun
`police’ for Tesl…
`
`Banned airline
`passenger spits
`at cop, poops i…
`
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`
`FlyWheel Sports was forced to file for bankruptcy protection in 2020 and to close all of its workout studios.
`
`Bloomberg via Getty Images
`
`“What Peloton really purchased was FlyWheel’s silence and cooperation,” according to the
`Dec. 8 filing in federal court in Delaware by Echelon Fitness, a Chattanooga, Tenn.-based
`bike maker that has been locked in a bike-patent dispute that was initiated by Peloton nearly
`three years ago.
`
`

`

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`
`Fugitive Jho
`Low paid stars
`like DiCaprio,…
`
`Two NJ women
`charged after
`baby dies from…
`
`Brian Laundrie’s
`full autopsy
`released with…
`
`Anthony Weiner
`embarrassed by
`Sean Hannity…
`
`Elon Musk
`blames ‘fun
`police’ for Tesl…
`
`Banned airline
`passenger spits
`at cop, poops i…
`
`The alleged sham agreement goes back to February 2020 when Peloton declared a
`“massive win” in a press release, saying it had defeated New York-based FlyWheel in a
`patent infringement case. Behind the scenes, however, Peloton had paid FlyWheel “an
`astonishing $24.5 million to settle a patent infringement suit that it brought as a plaintiff,”
`according to Echelon’s little-noticed filing.
`
`In exchange, Peloton got 2,500 customers who used FlyWheel’s ‘at home’ bike streaming
`service. This means that if Peloton did, in fact, pay FlyWheel $24.5 million, this would total
`about $9,800 per FlyWheel customer. That’s despite the fact that Flywheel’s business was
`on its knees, having announced plans six months earlier to close a quarter of its studios.
`
`Bike manufacturer Echelon has been locked in patent and trademark litigation with peloton since 2019.
`
`AFP via Getty Images
`
`

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`“Peloton knew it wasn’t worth anything close to the price it paid for it,” according to the court
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`filing.
`
`What’s more, Echelon’s filing claims the terms of the settlement in the US Eastern District of
`Fugitive Jho
`Two NJ women
`Brian Laundrie’s
`Anthony Weiner
`Elon Musk
`Banned airline
`Low paid stars
`charged after
`full autopsy
`embarrassed by
`blames ‘fun
`passenger spits
`Texas “coerced” FlyWheel’s chief financial officer, Jeffrey Naumowitz, to falsely claim that
`like DiCaprio,…
`baby dies from…
`released with…
`Sean Hannity…
`police’ for Tesl…
`at cop, poops i…
`the company had “copied” Peloton’s remote streaming technology for its Fly Anywhere Bike
`— when in reality it was the other way around, Echelon claims in the filing.
`
`“The declaration is false and was obtained by Peloton’s coercion,” according to the Echelon
`filing. “It allowed Peloton to use this admission against other competitors in the fitness
`market or anyone trying to enter it.”
`
`At the time, FlyWheel was on the verge of invalidating at least one of Peloton’s patents with
`the US Patent & Trademark Office, according to Echelon’s complaint. Peloton didn’t want its
`“contrived invention story revealed,” the complaint claims, and “sought to purchase
`Flywheel’s silence and cooperation.”
`
`Indeed, the $24.5 million payment was contingent upon the “dismissal” of patent reviews
`that would have invalidated Peloton’s patents, the filing claims.
`
`“Peloton was desperate to close the deal [with FlyWheel] before its patents were
`invalidated,” according to Echelon’s filing, so that it could “keep its weak patents alive and
`file additional baseless lawsuits against Echelon and other competitors.”
`
`

`

`Fugitive Jho
`Low paid stars
`like DiCaprio,…
`
`Two NJ women
`charged after
`baby dies from…
`
`Brian Laundrie’s
`full autopsy
`released with…
`
`Anthony Weiner
`embarrassed by
`Sean Hannity…
`
`Elon Musk
`blames ‘fun
`police’ for Tesl…
`
`Banned airline
`passenger spits
`at cop, poops i…
`
`LOG IN
`
`Peloton’s $24.5 million settlement with FlyWheel allegedly bought Peloton some 2,500 FlyWheel customers.
`
`SOPA Images/LightRocket via Gett
`
`Owned by private equity firm Kennedy Lewis, FlyWheel declared bankruptcy and liquidated
`seven months after the February 2020 settlement with Peloton – closing its 42 studios and
`laying off 1,200 employees.
`
`Kennedy Lewis and Naumowitz didn’t respond to emails and phone calls seeking comment.
`
`Peloton did not return calls and emails for comment. But it filed a motion to dismiss the
`claims and denied that the declaration by FlyWheel’s CFO was false.
`
`Echelon, for its part, argues that Peloton has a history of attacking its competitors, including
`SoulCycle, iFIT and Lululemon, and has used its financial muscle to fund “serial baseless
`litigation against its competitors to bully them out of the market.”
`
`In its December filing, Echelon accused Peloton – which controls 75% of the connected
`fitness industry – of violating antitrust laws with its pattern of squashing competitors, a
`strategy that Foley has called a “winner take all” approach, according to the complaint.
`
`

`

`Fugitive Jho
`Low paid stars
`like DiCaprio,…
`
`Two NJ women
`charged after
`baby dies from…
`
`Brian Laundrie’s
`full autopsy
`released with…
`
`Anthony Weiner
`embarrassed by
`Sean Hannity…
`
`Elon Musk
`blames ‘fun
`police’ for Tesl…
`
`Banned airline
`passenger spits
`at cop, poops i…
`
`LOG IN
`
`Peloton founder, John Foley, is accused of trying to eliminate Peloton’s competition with a “winner takes all” approach,
`according to a lawsuit.
`
`Bloomberg via Getty Images
`
`Echelon, which filed a countersuit after being sued by Peloton in 2019, won an appeal last
`week with the USPTO, which invalidated two of Peloton’s patents that have been a key
`focus of the companies’ dispute, relating to the streaming functions on its digital screens or
`leaderboards. Regulators ruled that they were not patentable in the first place because they
`were too “obvious.”
`
`After years of hostility, Peloton last week reached out to Echelon as part of their “ongoing
`negotiations” over the litigation, Echelon CEO Lou Lentine told The Post. “Peloton has a lot
`to do on their side of the business and they don’t have time for this litigation,” he
`said, declining to comment on whether the companies were initiating settlement talks.
`
`Lentine said Peloton had “fought” Echelon to have revelations about its 2020 settlement with
`Flywheel redacted from court papers. “Who declares victory in a patent lawsuit and pays the
`violator millions of dollars?” Lentine said.
`
`

`

`Lentine claims that Echelon — whose bikes are sold at retailers like Walmart, Dick’s
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`Sporting Goods and Costco for $500 and up — has seen sales growth of more than 40%
`year to date. The company landed in an embarrassing flap in 2020 over a supposed deal
`with Amazon to develop a $500 “Prime” bike, which Echelon announced in a press release.
`Fugitive Jho
`Two NJ women
`Brian Laundrie’s
`Anthony Weiner
`Elon Musk
`Banned airline
`Low paid stars
`charged after
`full autopsy
`embarrassed by
`blames ‘fun
`passenger spits
`Amazon denied having anything to do with the bike — which Lentine in turn disputed during
`like DiCaprio,…
`baby dies from…
`released with…
`Sean Hannity…
`police’ for Tesl…
`at cop, poops i…
`TV interviews at the time.
`
`Michael Milken bike ‘espionage’
`
`Echelon’s latest allegations are looking to recast the odd saga between Peloton — now
`reportedly circled by potential acquirers including Amazon following a slew of disasters
`including a “Sex And the City” episode that tanked its stock — and FlyWheel, a pioneer of
`in-studio spinning classes that was Peloton’s earliest competitor.
`
`Peloton’s Foley has said that his inspiration for at-home, web-enabled bikes occurred while
`he was taking a FlyWheel class, according to media reports. He further developed the idea
`after becoming friendly with FlyWheel co-founder Jay Galluzzo, whom he initially
`approached about investing in Peloton, according media reports.
`
`

`

`Peloton accused FlyWheel Sports of ripping off its technology.
`
`Getty Images
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`
`The friendship went south when the pair became fierce competitors, with each claiming to
`Fugitive Jho
`Two NJ women
`Brian Laundrie’s
`Anthony Weiner
`Elon Musk
`Banned airline
`have first come up with the idea for an at-home bike that offers live-streaming
`Low paid stars
`charged after
`full autopsy
`embarrassed by
`blames ‘fun
`passenger spits
`classes. Peloton was first to market with its connected bike, but FlyWheel claimed Foley
`like DiCaprio,…
`baby dies from…
`released with…
`Sean Hannity…
`police’ for Tesl…
`at cop, poops i…
`“gained access to FlyWheel’s confidential information and misappropriated it as his own,” to
`introduce Peloton’s bike, according to Echelon’s recent filing.
`
`" "
`
`*-(cid:5)2// .272 .32..6 ,5*61 .: 6 /567 ,23* ..70 5.3257
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`FlyWheel claimed that it had a 30-page document from July 2011 – six months before
`Peloton was founded – that outlined all the elements necessary to develop an at-home bike
`that could stream videos and live classes, according to the Echelon filing and media reports
`at the time.
`
`Michael Milken even made an appearance in the back-and-forth between the companies. In
`court papers, Peloton alleged that after investing in Flywheel, the legendary “junk bond king”
`approached Foley about becoming an investor in Peloton without disclosing his ties to
`FlyWheel — and plied him for confidential information that Milken then shared with
`FlyWheel, according to the Peloton complaint. Milken and Flywheel denied the allegations.
`
`“This is like a soap opera,” said Brad Rose, a patent and trademark attorney at Pryor
`Cashman. “They are claiming that Peloton conspired with FlyWheel to concoct a story of
`validity to these patents, which is counter to what FlyWheel had been saying for years. That
`doesn’t happen every day.”
`
`The allegations could also pose a risk for Peloton as it looks to wrap up any other patent
`litigation with competitors, Rose added.
`
`“Peloton would lose its patent by the USPTO if someone else with a legal interest in the
`case could prove that it was fraudulently obtained,” Rose said. “If someone believes that
`patent was obtained by fraud the patent could be invalidated.”
`
`

`

`Echelon also counts Galluzzo among its investors via private equity firm, North Castle
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`Partners. Galluzzo, who left FlyWheel in 2014 before the Peloton litigation, declined to
`comment.
`
`Anthony Weiner
`Brian Laundrie’s
`Two NJ women
`Fugitive Jho
`Low paid stars
`embarrassed by
`charged after
`full autopsy
`Sean Hannity…
`baby dies from…
`like DiCaprio,…
`released with…
`FITNESS
`LAWSUITS
`PATENTS
`PELOTON
`     $    !
`
`
`
` 2/9/22
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`Elon Musk
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`Banned airline
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