Case 2:11-cv-00106-wks Document 2-1 Filed 04/26/11 Page 1 of 11

UNITED STATES OF AMERICA 20!! l: ?6 Pl'l 3: 20

U.S. DISTRICT COURT FOR DISTRICT OF VERMONT ~

CHRISTOPHER KAISER, ) !t y - - - -- ,""';-;~-(:;---·;-·---

)
v. )
)
DAVID BENDER, and THE )
ADIRONDACK PEANUT BUTTER )
COMPANY, INC. d/b/a THE )
VERMONT PEANUT BUTTER )
COMPANY, )
Defendants.

AFFIDAVIT OF CHRISTOPHER KAISER

SUPPORTING HIS COMPLAINT AND MOTION FOR A PRELIMINARY INJUNCTION

Christopher Kaiser, the affiant, hereby states the following, under

oath:

1. My name is Christopher Kaiser, djojb July 25, 1970. I live at 209 Dewey Hill

Road, Stowe, Vermont. I own a house located at 264 Allen Road, Porter

Corners, New York, but do not live there.

2. In 2005, I began making artisan peanut butters with my then girlfriend,

Jessica Williams of Saratoga, New York.

3. Jessica and I started the Saratoga Peanut Butter Company out of a shared

interest, but disagreed over adding certain ingredients.

4. I independently developed secret methods and practices to produce blended,

flavored and supplemented nut butters beginning in 2005.

5. I developed multiple flavors and methods of mixing peanut butter blends

during the years 2005 - 2008.

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6. During those same years, I developed artwork for labeling and promotions

that included a natural scene, with mountains, blue and green colors, and

funky lettering of confidential origin.

7. In 2008, I had a fall out with my girlfriend and partner, and stopped working

with her and the Saratoga Peanut Butter Company.

8. I met Sharon Bender in 1996, when she came to a gym I owned in Saratoga,

NY. She seemed upset, we talked, and she started crying over personal issues

she was having. I was her physical trainer for a period of time. After meeting

Sharon's son, counseled him regarding the personal issues his mother and I

had spoken about earlier.

9. I later met Dave Bender, in 2003, when he came to my daughter's

Christening. I did not meet Dave Bender again until 2008, When I stopped

working with my girlfriend in 2008.

10. In 2008, after my break-up, Sharon Bender suggested that I start my own

peanut butter company. Sharon also suggested that I approach her husband,

David Bender, for financial assistance.

11. In late 2008, I met Dave Bender a second time, and told him the hardships I

had been through. I also shared with Dave my vision for a peanut butter

company that would combine great flavor with nutritious elements such as

added protein. That night, Dave and I talked until late in the evening, as he

wanted to know how much it would cost and what I would have to do in

order to start producing peanut butter. Dave clearly understood that I

intended to use my concepts, ideas and know-how to grow my company, the

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Adirondack Peanut Butter Company, and that I was seeking financial

assistance. I had just recently selected the name, and Dave liked it.

12. I later visited Dave and showed him artwork that I had created, and brought

a disk with graphics similar to those on the Vermont Peanut Butter Company

label. I showed him the illustrated labels, he seemed impressed, and I

brought my disk home.

13. Dave was convinced that my ex-girlfriend would try to stop me from

engaging in the peanut butter business, especially if I were successful. Dave

suggested that the peanut butter company be in his name so that, "when she

comes looking for you so pissed off [at my success], she will be even more

pissed off," because the company would be in Dave's name and not mine and

suing me would have no impact.

14. Dave convinced me that he was just going to loan me money I needed to grow

my company, and that it would be my company. As we became close friends,

and Dave was a father figure to me, I trusted him implicitly and believed that

he had my best interest at heart.

15. Dave and I agreed he would be paid back when the company could afford it,

without interest.

16. Dave told me that the main thing he wanted out of our relationship was to be

able to see me succeed, and be able to say that he knew me and that he

helped.

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17. Dave said it would not be fair for my ex-girlfriend to be able to continue the

business, using some of my ideas, then try to stop me from earning a living

using my own creations.

18. Dave was adamant that I should not let my ex-girlfriend "win" by shutting me

out of the business with lies and manipulations, and he encouraged me to

pursue my vision and create a great peanut butter company to rival the one

my ex-girlfriend and I had started.

19. Dave suggested that I speak with an attorney to discuss how to protect my

peanut butter business against my ex-girlfriend.

20. At Dave's suggestion, I looked through the Yellow Pages and found an

attorney, Alisa Dalton, Esq., to talk to about starting a peanut butter

company.

21. I met with Attorney Dalton in early 2009, and told her my vision of a health-

conscious peanut butter company.

22. Attorney Dalton advised me regarding intellectual property issues, and

issues particular to starting a business specializing in food processing.

23. Attorney Dalton advised that it would be too costly to attempt to secure

intellectual property rights, and that instead I should concentrate on "doing

what you know how to do best- make really great peanut butter."

24. Since I knew I could make a great product, I took Attorney Dalton's advice

and did not pursue protecting the intellectual property rights to any of the

flavors, processes, names or artwork I had created.

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Case 2:11-cv-00106-wks Document 2-1 Filed 04/26/11 Page 5 of 11

25. At my second meeting with Attorney Dalton, I brought Dave and Sharon

Bender. We all discussed protecting my peanut butter company from any

claims that might be made by my ex-girlfriend, as there was still acrimony

between us.

26. Attorney Dalton advised that she agreed with Dave that it would be difficult

for my ex-girlfriend to find me if the company were owned by Dave, with the

Dalton Law Firm as the registered agent.

27. Dave said, "Chris is my friend and he is like a son to me, and I feel bad for

what happened to him, and I don't want anyone suing him or coming after

him." He said, "I want to make this perfectly clear, I am only doing this to

protect Chris; I don't want anybody coming after him and I don't want

anybody suing him."

28. Attorney Dalton said Dave was a nice guy for helping me out in this way.

29. Dave repeated constantly over the past few years that this was my company,

and he was just an investor. He would say that he did not want to take

anything from me, he was just doing this to help me. He said over and over

again, "I am not trying to take anything from you, this is your company."

30. Attorney Dalton created the corporation Adirondack Peanut Butter

Company, Inc. according to the plan that Dave would be the sole shareholder,

to protect me from my ex-girlfriend, and would finance the venture. I would

be President and use my knowledge, skills, know-how, aesthetic creativity

and vision to create a new peanut butter brand.

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31. When we first started, Attorney Dalton acknowledged that she represented

me first, but that Dave had the money to pay her so she was the company

attorney. I told her that Dave was doing this for me, not for himself.

32. In early 2009, as I was necessarily disclosing more and more information to

Dave about producing my specialty peanut butter blends, I told Dave that I

would like to have something in writing to protect, "my ideas and stuff like

that," so I wouldn't ever have to go through something like I had with my ex-

girlfriend.

33. Dave said, 'Tm going to have Alisa [Dalton] write something up."

34. In approximately September, 2009, I asked Dave about "some type of

protection for me," he said Attorney Dalton was, "working on it" and, 'Tm not

trying to screw you, I'm not trying to screw you." Dave repeatedly said, 'Tm

not here to hurt you, just protect you."

35. I met my present girlfriend, Bobby Rhoem,who lives in Vermont, in

February, 2009. I began traveling to Vermont frequently to see Bobby, and

during discussions we thought up the idea that I should call my brand

"Vermont Peanut Butter Company."

36. The first batches of peanut butter I made as part of the new venture were

produced in the garage of my house in New York, in July 2009, and sold

under the Vermont Peanut Butter name in the Central Vermont area.

37. Because Vermont provided a better name brand, I decided I should be

producing the product in Vermont.

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38. I spoke with Dave about opening a production facility in Vermont, and

although he did not think it mattered where the product was produced he

agreed and we moved the business to Luce Hill Road, Stowe, Vermont.

39. I operated in Stowe from about September 2009 through June 2010, when

we grew out of the Stowe facility.

40. I moved production to the Waterbury, Vermont facility in June, 2010 and

continued marketing the product and following my business plan.

41. Throughout 2009, 2010 and through to the present, all ofthe flavor

combinations, ingredient proportions and quality, artwork, labels, websites,

catch phrases, tag lines, athletic contacts, customers, distributors, suppliers,

public relation events, articles, etc. were my responsibility. I received a

modest salary as President of the company and handled the early finances.

42. All ofthe creative work I put into the Vermont Peanut Butter Company, and

the development of all of the contacts, was done in reliance upon the ongoing

representations by Dave and Sharon that this was my company, they were

investors, and eventually I would pay them back their investment and

continue with my company.

43. The reason phone numbers, websites, the post-office boxes, facebook and

other such services were started in my name is that it was supposed to be my

company, as Dave continued assuring me he was just lending me the money I

needed to run my business.

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44. I have not kept exact recipes, nor have I kept customer lists, as my contacts

have been derived mostly from the internet or through friends, and my

peanut butter creations are as much an art as a science.

45. There are processes involved in mixing my peanut butter flavor

combinations that require timing, and subtle combinations of ingredients,

which are not susceptible to analytic description and therefore have never

been written down in one place.

46. The artwork that went into the Vermont Peanut Butter Company labels was

my creative work, which was started on my own computer at home before

Adirondack Peanut Butter Company, Inc. was ever started.

47. I then worked with my label designer in early 2009 to finalize the artwork.

48. Dave repeatedly told me: "you are the President, it is your company, act like

it" relative to issues like standing up to distributors or making decisions

about trucking.

49. Dave never participated in mixing peanut butter, and had nothing to do with

the artistic, creative, technical or marketing sides of the business.

50. In November, 2010, attorney Alisa Dalton contacted me by letter

51. By the end of 2010, the company was growing very strong, and by March,

2011 there were numerous new customers calling every day.

52. On April1, 2011 (I remember because I thought it was an April Fool's joke),

Dave and Sharon showed up at the Waterbury facility and told me that they

were shutting down.

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53. My girlfriend Bobby convinced Dave that she could do the billing that he did

not have time to do, and we all shook hands and agreed that I could have

more time to find investors and they would immediately forward the

information Bobby needed to do the billing for Vermont Peanut Butter

Company.

54. I left Vermont to get my daughter, and we went on vacation to Disneyland,

beginning on AprilS, 2011.

55. While I was away on vacation, Dave changed the locks at the Vermont Peanut

Butter Company facility.

56. When I returned from vacation, I called Dave and he would not talk to me.

Shortly thereafter, I received a call from an former attorney who had a

message from Attorney Dalton saying I was relieved of duty as President of

the Adirondack Peanut Butter Company.

57. I never even thought that Dave would claim ownership over my ideas,

artwork, name, flavors, designs, etc.

58. I am attaching to this affidavit true and accurate copies of artwork I created

before Dave Bender and I went into business together, and during the

operation of Adirondack Peanut Butter Company, Inc. and Vermont Peanut

Butter Company, showing the designs, color schemes and concepts are my

own creations.

59. Considering the extreme and offensive allegations Dave has published about

me, and because I have no equipment or space, I lack any reasonable ability

to produce or distribute peanut butter at this time.

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60. Attached hereto and incorporated herein are the following Exhibits, which

are true and accurate copies of the originals:

A. A confidentiality agreement I had my graphic designer sign, showing that

I asserted rights in the intellectual property of the Vermont Peanut Butter

Company, without objection from David Bender;

B. Artwork I created showing the development of my concept for the

Vermont Peanut Butter Company label, which predates the existence of

the Adirondack Peanut Butter Company.

C. Emails supporting long-standing understanding that I was the creator of

the Vermont Peanut Butter Company.

D. Press clippings supporting the fact I was the creator, owner and operator

of the Vermont Peanut Butter Company.

E. Letter from Alisa Dalton, Esq. referenced in the Complaint and my

Affidavit.

F. Correspondence supporting the fact there were ongoing negotiations

regarding paying David Bender for his "loans" I "investment" in Vermont

Peanut Butter Company.

G. Emails establishing that Attorney Dalton did not draw a line between her

assistance to me and to the company or David Bender, and that I was as

treated as an "owner" of the company before David Bender implemented

his plan to deprive me of the intellectual property of the Company.

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~
DATED at Stowe, Vermont this 1.~aay of April, 2011.

Christopher Kaiser

STATE OF VERMONT )
COUNTY OF LAMOILLE ), SS.

n~y
On this of April, 2011, personally appeared Christopher
Kaiser, who was suitably identified, and he did swear under oath to the
following, upon his own free act and deed and his own information,
knowledge and belief, under the penalties and pains of perjury, and that to
the extent same is made upon his belief it so represents his true beliefs.

~---
Notary Public
My Comm. Exp.: 2/10/15
Seal:

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