Innospec v. Aurorium - Motion to Dismiss

IN THE UNITED STAT ES DISTRICT COUR T FOR THE DISTRICT OF DELAWARE INNOSPEC INC. and INNOSPEC FUEL SPECIALTIES LLC Plaintiff s, v. AURORIUM HOLD INGS LLC, AURORIUM DENH AM SPRINGS LLC and AUROR IUM LLC, Defend ant s.)))))))))))) C.A. No. 24-1371- RGA REPORT AND RECO MMENDATION Presently before the Court is the motion of Defendants Aurorium Holdings L LC, Aurorium Denham Springs LLC and Aur orium LLC (collectiv ely, “Defendant s ”) to dismiss all counts of the First Amended Complaint. (D.I. 39). The Court carefully reviewed all submissions i n connection with the motion (D.I. 40, 47, 48, 49 & 57), heard oral argument 1 and applied the following legal standards in reaching its recommended disposition: I. LEGAL STANDARD In ruling on a motion to dismiss under F ederal Rule of Civil Procedure 12(b)(6), the Court must accept all wel l - pleaded fa ctual allega tions in the c omplaint as tr ue and view them in the ligh t most favorable to the plaintiff. See Mayer v. B elich ick, 605 F.3d 223, 229 (3d Cir. 2010); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 - 33 (3d Ci r. 2008). The Court is not, however, required to accept as true bald asserti ons, unsupported conclusions or unwarranted inferences. S ee Mason v. Delaware (J.P. Court), C.A. No. 15-1191-LPS, 2018 WL 4404067, at *3 (D. Del. Sept. 17, 2018); see also Morse v. Lower Merion Sch. Di st., 132 F.3d 902, 906 (3d Cir. 1997). Dismissal 1 An official transcript of those proceedings will be docketed shortly.

2 under Rule 12(b)(6) is only appropriate if a complaint does not contain “sufficient factual matter, accepted as true, to ‘state a clai m to reli ef that is pl ausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see als o Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This plausibility s tandard obligates a plaintiff to provide “more than l abels and conclusions, and a formul aic recitation of the elements of a cause o f action. ” Twombly, 550 U.S. at 555. I nstead, the pleadings must provide sufficient factual al legati ons to al low the C ourt to “d raw the reasonabl e infer ence that the defend ant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The issue is not whether a plaintiff will ultimately pr evail but w heth er the c laimant is e ntitled to offer evidenc e to suppo rt the cla ims.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (cleaned up). II. THE COURT ’S RULING The Court’s Report and Recommendation was announced f rom the bench at the conclusion of the March 4, 2026 hearing as follow s: At the outse t, I must addre ss the two e xhibits Plaintiff s attach ed to their opposition brief, the declar ations of Mr. Ian MacMi llan and Mr. Susser. The declar ations themselves and the exhibits attached to Mr. S usser’s declar ation co ntain facts t hat are not ref erenced in or integral to the First Amended Complaint. I will not consider the declar at ions or the exhibits to Mr. Susser’s declaration because that is impermissibly going beyond the pleadings. [2 ] I m ay – but need not – consider the US Toll Manufacturing Agreement and the 2020 Amendment to that Agreement because those are e xpressly refenced in Paragraphs 55 to 57 of the Amende d Complaint. [3] Even if I did consider those agreements, they would not materia lly affect my ruling on the pending motion. 2 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (“As a gener al matter, a distric t court r uling on a motion to dismiss ma y not consider matte rs extraneous to the pleadings.”); Hughes v. United Parcel Serv., Inc., 639 F. App’x 99, 104 (3d Cir. 2016) (“It is axiomatic that the complaint may not be a mended by the briefs in opposition to a motion to dismiss.” (cleaned up)). 3 See In re Burlington Coat Factory, 114 F.3d at 1426.

3 Movin g on to the cl aims asserted h ere, Pl aintiffs assert again st three Aurorium defendants various claims of breach of contract, trade secret misappropriation, false advertising and replevin. I will begin with Pla intiffs’ breac h of contract claims. Count I is for breach of the 2020 Supply Agreement and Count II is for breach of the 2020 Confidentiality Agreement. I recommend that these counts be dismissed as to Aurorium LLC and Aurorium Holdings. The parties to the Confidentiality Agreement are Plainti ff Innospec Fuel Special ties or IFS and Bercen Chemical s, LLC, who is n ow Defendant Aurorium Denham Springs. Only IFS and Denham Springs are parties to the Supply Agreement. Aurorium LLC and A urorium Holdings are not parties to either agr eement and thus cannot be liable for breach. [4 ] The most Plaintiffs offer is that Aurorium LLC was a party to an amendment to the Supply Agreement. But that doesn’t nece ssarily render it plausible that Aurorium LLC was obligated to any confidentiality requirements under the original Supply Agre ement. If Plain tiffs can all ege facts that either Aurorium LLC or Aurorium Holdings were specifically and individually bound by the terms of the 2020 C onfidentiality and Supply Agreements, they may seek leave to do so. But as it stands now, Counts I and II sho uld be dismissed as to A urorium LLC and Aurorium Holdings. As for Denham Springs, howeve r, I recommend granting in part and denying in part the motion. S tarting with Count II, I recommend that the motion be denied. The 2020 Confidenti ality Agreeme nt defines “Confidential Information” to include “ any trade secret or other information . . . necessary in connection with the Purpose.” [5 ] The definition goes on to provide th at any “know - how, designs, reports, technical information and drawings, . . . formulations, chemical composition, processes, methods used to manufactur e, inventions and ideas, relating to the Purpose” is considered “Conf idential I nformation.” [6 ] The crux of the dispute here stems from the Confidentiality Agreement’s goal, which is defined as the “Purpose.” The “Purpo se” secti on states that “Inno spec bel ieves i t can impro ve its fuel additives by disclosing an additive a nd process conditions for 4 O’Leary v. Telecom Res. Serv., LLC, 2011 WL 379300, at *7 (Del. Super. Ct. Jan 14, 2011) (“It is b asic contr act law t hat onl y parties t o a contr act may be li able und er that contract. ”). 5 (D.I. 31, Ex. B § 1). 6 (Id.).

4 use of that additive” in Denham Springs’s manufacture of the interm ediate ch emical “and testi ng for s pecific p erforman ce requirements and wishes to disclose that information to” Denha m Springs, and Denham Springs “may sha re information about its manufact ur ing process and/or the use of such additive.” [7 ] Defendants argue that this “Purpose” is focused on improving Denham Spr ings’s intermediate chemic al additive. [8 ] Plaintif fs disagree, arguing that the “ Purpose” is focused on improving their fuel additives such as their OL I 9000, the m anufacturing process of which i s the trad e secret asserted here. L ooking at the l anguage itself, it is unclear wheth er the “ additiv e” referen ced in the “Purpose ” section is dist inct from IFS’s “ fu el additive s” or if it is inst ead a separate ch emical that im proves Denham S prings’s manufact ure of it s interm ediate ch emical. It is also unclear whethe r the “tes ting for s pecific perform ance r equirement s” in t he “Purpos e” section refers to the perfor mance of IFS’s fuel additives or to Denham Spr ings’s intermediate ch emical. If the te sting is for performance of IFS’s OLI 9000, the n the manufacturing process of OLI 9000 – i. e., the trade secret ass erted h ere – would be related to the defined “Purpose.” And in that case the 2020 Confidentiality Agreement would cover IFS’s trad e secret – or any confidential informatio n relatin g thereto – and any improper use by Denham Springs would constitute a breach o f contr act. [9 ] These ambiguitie s cannot be resolved on a motion to dismiss. [10 ] Therefo re, I recommend that the motion to dismiss Count II be denied a s to Denham Springs. But for Count I, I recommend that the motion to dismis s be grante d. As Denham Springs correctly argues, the 2020 Supply Agreement does not provide separate confidentiality protections for Plaintiffs’ trade sec rets. Even assuming Plaintiffs’ interpre tatio n of the undefine d te rm “Inte llectual Prope rty” is correct in tha t it includes confidential information, nothing in the agreement requires Denham Springs to protect the secrec y of such information. In the briefing, Plaintiffs only point to Sections 2.1, 2.2 and 9 as providing 7 (D.I. 31, Ex. B). 8 (D.I. 57 at 3). 9 (See D.I. 31, Ex. B §§ 1, 4, 5). 10 See VLIW T ech., LL C v. Hewlett - Pack ard Co., 840 A.2d 606, 615 (Del. 2003) (“ Dismissal, pursuant to [Chancery Court] Rule 12(b) (6), is proper only if the def endants ’ interpreta tion is th e only reasonabl e const ruction as a matter of law.”); see also Kahn v. P ortnoy, 2008 WL 5197164, at *3 (Del. Ch. Dec. 11, 2008) (“[A]ny ambiguity must be resolved in f avor of the nonmoving party.”).

5 confide ntiality prote ctio ns. But Sec tion 9 only clarifies that the Supply Agreement does not supersede the Confidentiality Agree ment; it does not separate ly impose confidentiality requirem ents. [11 ] Section 2.1 only grants Denham Springs and its affiliat es a licens e to use anyt hing deem ed “Intellect ual Property.” [12 ] And Section 2.2 only requires Denham Springs to keep a list of people who are exposed to Plaintiffs’ “Intellectual Property,” provide that list upon request and to “remind departing employ ees who have had access to the Inn ospec Intel lectual Property of their confidentiality obligations at [Denha m Springs] takes with respect to its own confidential infor mation.” [13 ] That does not impose a confidentiality obligation – it impose s an obligation to remind. None of these impose a standalone c onfidentiality obligation, and Plaintiffs cannot sue for a breach of a provision that is not present in the a greement. [14 ] Count I alleg es breach of confidentiality obligations under the Supply Agreement, and it should be dismissed. Although I have serious concerns about the impact of Section 8.1 of the Supply Agreement precluding any such causes of action based on confiden tiality breac hes, Plaintiffs may seek leave to amend if they believe doing so would not be futile. I will next a dd ress the tra de secre t misappropria tion claims in Count s III and IV. The assert ed trad e secret h ere is th e manufacturing process of OLI 9000. Defendants s eek dismissal on the basis tha t there is no written agre ement protec ting the confident iality of Plaintif fs’ tra de secre t. [15 ] But Plaintif fs’ theory as pled is that each of Aur orium LLC, Aurorium Holdings and Denham Springs were under a duty of confidentiality to Plaintiffs and that each Defendant breached that duty by using Plaintiffs’ trade secret to develop Texalene 7467. [16 ] As to Denh am Springs, P laintiffs’ claims ma y proce ed. It is a t least ambiguous whether the 2020 Confidentiality Agree ment protects the confidentiality of Plaintiffs’ trade secret in OLI 9000. To the 11 (See D.I. 31, Ex. A § 9). 12 (D.I. 31, Ex. A § 2.1). 13 (D.I. 31, Ex. A § 2.2). 14 See, e.g., Bush v. Triton Sys. of Del. Inc., C.A. No. 20 - 599- LPS, 2021 WL 6551617, at *5 (D. Del. Dec. 7, 2021). 15 (D.I. 40 at 12- 15). 16 (See D.I. 30 ¶¶ 89, 158).

6 extent it is a mbiguous, I mu st resolve that ambiguity in Plaintif fs’ favor on a motion to dismiss. [17 ] As I discussed a few moments ago, Plaintiffs’ interpre tation of the Confide ntiality A gree ment would obligate Denham Springs to protect the secrecy of Pl aintiffs’ trade secre t process. That is what Plaintif fs allege he re. Plaintiffs alle ge that Den ham S prings breached the obligations imposed by the Agreement by improperly using the OLI 9000 trade secret – which it learned about under the A greement – to manufac ture its Texalene 7467. In my view, Plaintiffs have a dequately alleged that Denham Springs misappropriated Plaintiffs’ trade sec ret given that Denham Springs had access to it and allegedly imprope rly used it to make their own Texalene product. To th e extent that t here are any arguments that Plaintiffs did not properly protect their trade secret, I fin d that that’s not su itable for resolu tion on a motion to dismiss. [18 ] Therefore, I recommend that the motion be denied as to Denha m Springs for Counts III and IV. I reach the sa me conclusion as to Aurorium Hol dings. Plaintiffs alleged that they disclosed the OLI 9000 trade secret proce ss to all of the Aurorium Defendants. [19 ] And Plaintiff s also plausibly a llege that Au rorium Hol ding s received access to th e trade sec ret information from its affiliate company, Denham Springs. And Plaintiffs a llege tha t Aurorium Holdings is the entity that mark ets the Texalene product and interfaces with customers about that product, thereby allegedly making use of that conf idential information. [20 ] Therefore, I think that – although it may be close – 17 See Eni Holdings, LLC v. KBR Grp. Holdings, LLC, 2013 WL 6186326, at *6 (Del. Ch. Nov. 27, 2013) (“If, however, the contractual language is rea sonably or fairly susceptible of different interpretations, I must resolve this ambiguity in favor of . . . the nonmoving party.” (internal quotations omitted)); see also In re Energy Future Holdings Corp., 585 B.R. 341, 348 (D. Del. 2018) (applying the same rule to a motion to dismiss a breach of contract claim governed by New York law). 18 See, e.g., JPMorgan Chase Bank, Nat’l Ass’n v. Argus Info. & Advisory Servs., Inc., 765 F. Supp. 3d 367, 375 (D. Del. 2025) (Bibas, J., sitting by designation); see also Alpha Pro Tech, Inc. v. VWR I nt’l LLC, 984 F. Supp. 2d 425, 4 37 (E.D. Pa. 2013) (“The Court does not hav e the necessary factu al array befo re it to det ermine. . . whether a pla intiff ’ s efforts to mai ntain th e secrecy of i ts alleged trade secr ets were reas onable [an d] is not a question suscept ible of bl ack -or- white analysis. ”). 19 (D.I. 30 ¶ 148). 20 (See D.I. 3 0 ¶¶ 92-95, 99-100).

7 Plain tiffs hav e adequa tely stat ed a claim o f trade secret misappropriation for Aurorium Holdings. [21 ] The claim s again st Aur orium LLC are diff erent m atter. Even if there w ere plausib le all egatio ns that Au rorium LL C received access to the trade secret information, I don’t think that Plaintiffs have plausibly alleged – with sufficient factual support – w hat the LLC entity specifically may have done with the disclosed trade secret process thereafter. At best, Plaintiffs have pled facts to support an inference that an implied duty of confidentiality existed but I am unable to find any plausible allegations that Aurorium LLC did anything with that confidential informa tion that would constitute trade secret misappropria tion. As to Plaintiff s’ reliance on Pix is and the argument that they can group plead at this stage, I disagree that under the circumstances here, such pleading would satisfy the notice re quirements of Rule 8. [22 ] Here, t here are c ertain wri tten ag reemen ts that obligate specific p arties to keep some of Plaintif fs’ information c onfidentia l. In my view, Plaintiffs cannot rely on the e xistence of some confide ntiality agr eement with some A urorium e ntity and handwavin g to assert that al l of the nam ed entit ies here had t he same obligations. Or acted in the same improper way with respect to that information. [23 ] In sum, I recommend that Defendants’ motion to dismiss as to Counts III and IV be denied as to Denha m Springs and Aurorium Holdings but granted as to Aurorium LLC. Next ar e Plaintiff s’ false adver tising and unf air competition claim s in Counts V, VI and VII. Each count is based on one or all Aurorium entities claiming exempt status of their T exalene 7467 product on their s afety data sh eet wh en that pro duct is n ot act ually exempt 21 See Oakwood Labs. LLC v. Thanoo, 999 F.3d 892, 909 (3d Cir. 2021) (“ [M] arketing goods that embody the trade secret . . . constitute[s] use.” (clean ed up)). 22 See Pixis Drones, L LC v. Lumen ier LLC, C.A. No. 23 -141- RGA, 2023 WL 6660991, at *3 (D. Del. Oct. 12, 2023) (“The proper question in examining whether Defendants have suffici ent noti ce is whether ‘it can be reaso nably inf erred that each and every allegati on is made against each individual defenda nt.’” (quoting Groove Digital, Inc. v. King.com, Ltd., C.A. No. 18 -836- RGA, 2018 WL 6168615, at *1 (D. Del. Nov. 26, 2018)); see also Zond, Inc. v. Fujitsu Semiconductor Ltd., 990 F. Supp. 2d 50, 53 (D. Mass. 2014). 23 Cf. IOENGINE, LLC v. PayPal Holdings, Inc., 2019 WL 330515, at *12 (D. Del. Jan. 25, 2019) (finding group pleading provided sufficient notice to parent co rporations because the “collec tive liability” theory was based on an agency theory that was adequately pled).

8 within the meaning of the relevant EPA re gulation. Defendants seek dismissal of these counts for failing to comply with the heightened pleading standard of Rule 9(b) and also because suc h false adverti sing clai ms are not l egally cog nizabl e. Bec ause I agr ee with the latter point, I need not reach the open question in this Circuit of whether R ule 9(b) appli es to the L anham A ct fals e adverti sing claims. As to their prevailing theor y, Defendants contend that Lanham Ac t claims can never be asserted if doing so would require the Court to review and apply an agency’s regulation. [24 ] Not so. At le ast the First, Nin th and D.C. Circu its have he ld that literally false representations about compliance with an uninter preted yet unambiguous regulation can be actionable. [25 ] 24 (D.I. 40 at 18; D.I. 57 at 9). 25 See, e.g., Dial A Car, Inc. v. Transp., Inc., 82 F.3d 484, 489 n.3 (D.C. Cir. 1996) (“[H]ypo thetically spe aking, a regulation might conceivably be drafted that would be so clear on its face that no good faith doubt con cerning its interpretation would be possible, even without an explicit statement from the [agency].”); Coastal Abstract Serv., Inc. v. First Am, T itle Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999) (“A bsent a clear a nd unambiguous ruling from a court or agency of competent jurisdiction, statements by laypersons that purport to interpret the me aning of a statute or regula tion are opinion statemen ts.”); Azurity Pharm., Inc. v. Edge Pharma, LLC, 45 F.4th 479, 496 - 98 (1st Cir. 2022); T NT Amusements, Inc. v. Torch Elecs., LLC, 2025 WL 2336858, at *3 (E.D. Mo. Aug. 13, 2025) (“[U]nder Coastal Abstract and Dial A Car, the standard is whethe r there exists clear and unambiguous legal guidanc e by the r elevant authorities.”); Ameritox, Ltd. v. Millennium Labs., Inc., 889 F. Supp. 2d 1304, 1317 (M.D. Fla. 2012) (“Statements by laypersons that purport to interpret the me aning of a statute or regula tion are opinion statements, and not statements of fact, unless ‘a court or agency of competent jurisdiction’ has cle arly a nd unambigu ously ruled on the matter.” (quoting Gen. Cigar H oldings, Inc. v. Altadis, S.A., 205 F. Supp. 2d, 1335, 1357 (S.D. Fla. 2002)); Design Res., Inc. v. Leather Indus. of Am., 2014 WL 4159991, at *8 (M.D.N.C. Aug. 19, 2014) (“Adhering to [the Dial A Car ] rule prevents ‘transforming the Lanham Act into a handy device’ allowing (or forcing) federal judges to interpret or de cide questions of administrative law.” (quoting Dial A Car, 82 F.3d at 489 - 90)); Sierra Sh elving, Inc. v. Design Assistance Constr. Sys., Inc., 2008 WL 11512375, at *6 (E.D. Va. M ay 13, 2008) (“[Plaintiff] would still be unable to hold [Defendant] liable for a Lanham Act violation because [the regulation] would still have be en ambiguo us at t he time [De fendant] m ade t he alleged misrep resen tations.” (c iting Dial A Car, 82 F.3d at 488)); Santana Prods., Inc. v. Bobrick Washroom E quip., Inc., 249 F. Supp. 2d 463, 533 (M.D. Pa. 2003) (“To de termine the falsity of an opinion concerning code interpretation, therefore, there must be a clear and unambiguous stat ement from the authority having jurisdiction to interpret the code.”), vacated on other grounds, 401 F.3d 123 (3d Cir. 2005); see also Be lcher Pharms., LLC v. Hospira, Inc., 1 F. 4th 1374, 1380 (11th Cir. 2021) (“Lanham Act claims may be b arred if their resolution requires an original determin ation that is c ommitted to the [a gency].”); Sandoz Pharma. Corp. v. Richardson -

9 Plain tiffs’ Lan ham Act claim h ere is bas ed on the Pol ymer Exemption Regulation, [26 ] which the EPA promul gated under the Toxic Substances Control Act to excuse certain polymer manufact urers f rom the Act ’s pre - m anufactu re notice requirem ents. [27 ] A chemical substance is only exe mpted from those require ments if it meets the regu lation’s definitio n of “poly mer,” is not excluded from claiming the exemption, and meets one of the exempti on criteri a. [28 ] All requirements must be met. Although Plaintiffs f ocus on the molecular weigh t exemption cr iteria under subsection (e), more is required for exempt status under the regulation. Whether Defendants improperly cla imed exempt status would also require me to deter mine whether Defendants’ Texalene 7467 product is excluded from a c laim of exemption under subsection (d). And one class of polymers e xcluded from the exemption – those that “substantially degrade, decompose, or depoly merize” – is not cl early defined. That class is defined using the term “subs tantially.” Plaintiffs po int to no prior EPA interpretation of that term, and the E PA has seemingly not interpreted that term during either the rul emaking process or in the guidance interpreting the exemptio n. [29 ] And I’ll note that, in other Vicks, In c., 902 F.2d 222, 230 - 32 (3d Cir. 2022) (“Sandoz ’ s position would require us to usurp administrative agencies ’ responsibility for interpreting and enforcing potentially ambiguous regulations.”). 26 Plaintiffs argue that the Tenth Circuit’s decision in Cottrell, Ltd. v. Bio trol International, Inc., 191 F.3d 1248 (10th Cir. 1999), is analogous to their claim. (D.I. 47 at 17 - 19). The actionab le claims in Cottrell were based on impli ed EPA approval and cla ims about the product’s functionality. Cottrell, 191 F.3d at 1254. Cottrell is in applicab le. As Pla intiffs ’ brief mak es cle ar, they allege that D efend ants’ “s tatemen t that T exalen e 7467 i s ‘exempt ’ from EPA f iling requir ement is litera lly false.” (D.I. 47 a t 19). Th at al legati on is more akin to the c laim th at the Cottrell court found in actionabl e because i t requi red the court to “interpret and apply regulations.” Cottrell, 191 F.3d a t 1254. 27 40 C.F.R. § 723.250; see als o 15 U.S.C. § 2604(a)(1), (h)(4). 28 40 C.F.R. § 723.250(b)- (e). 29 See E NV ’ T P ROTEC TION A GE NC Y, P OLYMER E XEMPTION G UI DANCE M ANUAL § 4.2.3 (1997), https://www.epa.gov/sites/default/files/2015 -03/documents/polyguid.pdf [https://per ma.cc /QD9T - 46QF]; Premanufacture Notification Exemptions; Revisions of Exemptions for Polymers; Final Rule, 60 Fed. Reg. 16316 - 16336 (Mar. 29, 1 995) (codifi ed at 40 C.F.R. pt. 723); Premanufacture Notification Exemptions; R evisions of Exemptions for Polymers; Proposed Rule, 58 Fed. Reg. 7679, 7682 (F eb. 8, 1993); Premanufacture Notification Exemptions; Exemptions for Polymers, 49 F ed. Reg. 46066, 46072 - 73 (No v.

10 cases wher e courts are interpret ing the u se of “subs tantiall y” in statutes and regulations, they have found t hat that term is ambiguous when there are no guideposts. [30 ] Like her e. So Plaintiffs a llege that De fendants don’ t meet the exemption requirements related to molecular w eight for the Texalene product. That may be, but Defendants would have a lso had to interpret the exclusion provision to determine whether Texalene 7467 fell wit hin the “substantially degrade, de compose, or depolymerize” language. That regulatory provision has not been inter preted before and, to me, is not clearly unambiguous. Beca use the regulation in issue is not clearly unambiguous or previously interpreted, stateme nts about complying the rewith c a nnot be lite rally false. [31 ] Any questions about compliance should stay with the E PA; to do otherwise would usurp the agency’s a uthority. [32 ] As such, Defendants’ statement s about Texalene’s exempt status are not actionable under the La nham Act. And Pla intiff s’ state law cla ims of false advertising and unf air competition, which are based on the same theo ry, are also not actionab le. [33 ] I therefore recommend that Counts V through VII be dismissed and with prejudice. 21, 1984); Premanufacture Notification; Receipt of Petition Requesting Commencement of Exemption Rulemaking Proceedings, 46 Fed. Reg. 54688, 54688-89 (Nov. 3, 1981). 30 See, e.g., Montgomery Cnty. v. FCC, 811 F.3d 121, 129 & n.5 (4th Cir. 20 15) (“There is no question that [‘substantially change the physical dimensions’] is ambiguous.”); Zu ric h Am. Ins. Grp. v. Duncan, 889 F.3d 293, 302 (6th Cir. 2018) (“substant ially similar” ambiguous); Palmieri v. Nynex Long Distance Co., 437 F.3d 111, 115 (1st Cir. 2006) (“substa ntially con trolled. . . contains some ambiguity”); Ray v. Wilkie, 31 Vet. App. 58, 69 (2019) (“substantially gainful occupation” ambiguous). 31 See Coas tal Abstract, 173 F.3d a t 731 (“ Absent a clear and unambiguous ruling from a court or agency of competent jurisdiction, statements by laype rsons that purport to interpret the meaning of a statute or regulation are opinion statements, and not statements of fact. Statements of opinion are not generally actionable under the La nham Act. ” (int ernal citations omitte d)). 32 Sandoz Pharma., 902 F.2d at 230 - 32 (“Sandoz ’ s position would require us to usurp admini strativ e agencies ’ responsibility for interpreting and enforcing potentially ambiguous regulations.”). 33 Inkit, Inc. v. Airsla te, Inc., C.A. No. 23 -793- RGA, 2025 WL 1016602, at *1 (D. Del. Mar. 27, 2025) (“Analogous violations of the DTPA are eva luated under the same standards as federal Lanham Act cl aims. ”); see als o D EL. C ODE A NN. tit. 6 § 2532(a)(5); id. § 2532(a)(12); U NIF. D ECEPTIV E T RA DE P RACTICE S A C T § 2(a)(5) cmt. (A.B. A. 1966); id. § 2(a)(12) cm t.

11 Finally, as to the replevin claim in Count VIII, based on Defendants’ repre sentations toda y, Plaintiffs agree tha t the claim is moo t and it will be withdr awn. Plaintiffs a ttempted to r equest le ave to amend in the eve nt that I grant any of Defendants’ motion. [34 ] But Plaintiffs faile d to provide a draft proposed amended pleading, as is required for me to consider leave to amend in non - c ivil rights ca ses. [35 ] To the extent Pla intiffs want to seek leave to amend t o cure deficien cies identifi ed today, Plaintiffs may do so on or before March 25, 2026 using the proper procedure for doing so. That is my report and recommendation. III. CONCLUSIO N For the foregoing reasons, the Court recommen ds that Defendants ’ motion to dismiss (D.I. 39) be GRANTED - IN - PART and DENIED - IN - PART. This Report and Recommenda tion is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b) (1) and District of Delawar e Local Rule 72.1. Any objections to the Report and Recommendation shall be limited to te n (10) pages and filed within fourteen (14) days after being served with a copy of this Report and Recommendation. See F ED. R. C IV. P. 72(b)(2). Any responses to the objections shall be limited t o ten (10) pages and filed within fourteen (14) days after the objections. The failur e of a party to object to legal conclus ions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App’x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987). 34 (D.I. 47 at 20). 35 LabMD, Inc. v. Boback, 47 F.4th 164, 192 (3d Cir. 2022) (“[A] plaintiff must properly request leave to amend a complaint in order fo r the district court to consider whether to permit ame ndment. A plaintiff pr op erly requ ests amendmen t by asking the district c ou rt for leave t o amend and submitting a draft of the a mended complaint, so that the court can judge whether amendment would be futile.” (citation omitted)); see als o Fletcher - Harlee Corp v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 - 53 (3d Cir. 2007) (“In non - civil rights c ases, the set tled r ule is that pr operly req uesting lea ve to amend a co mplaint requires submitting a draft amended complaint.”).