Sunday, July 11, 2010


By: Rich Bergeron

Tonight, I found out the true meaning of "no good deed goes unpunished." After years of fighting to expose the truth behind the Xyience scandal I am now the last person in the bankruptcy process still fighting to get relief for burned shareholders. I try to send updates from time to time to all those with some connection to Xyience through past stock ownership and/or other affiliations. Every now and then someone asks to be removed from the list. Some people would just rather forget. Then there was tonight's message from a woman named Diane Frank:

to Rich Bergeron
date Thu, Jun 18, 2009 at 1:59 AM

hide details 1:59 AM (1 hour ago)


Follow up message
I dont give a fuck! I am a single mother with 4 children and you/YES you personally ruined Xyience. You and I both know the true facts. Please do not send me your ____ again.

Diane Frank

Diane Frank (951) 727-0149
Office (951) 727-0200
Fax (951) 727-0232

It's nice to know you have the support of the people you are fighting for. I hope this is just misplaced anger or a misunderstanding, but it's hard to tell. Unfortunately nobody believes it when you try to help for no reason at all. It's just not the norm, and that's a shame.

At any rate, the reason I really wanted to write this article is to highlight how Xyience is being sued again.

R&R International, INC. Just filed action against Xyience in Florida on April 13, 2009 over a distribution agreement gone sour. The agreement, according to the complaint, contained the following clause: "Xyience hereby grants the exclusive right to distribute and sell the Xyience Energy Drink brand product lines to Accounts in the state of Florida except for the area listed below and the exclusive license to use the Trademarks solely in connection therewith, in each case subject to the remaining provisions of this agreement. All additional distribution opportunities outside of the above mentioned territories will have to be approved by Xyience."

Enter JP Beverage Distributors, requesting a significant order of Xyience product, the complaint explains. Under the first cause of action for breach of contract, R&R claims JP Beverage wound up buying the product shipment directly from Xyience after R&R already purchased everything to fill the same order from Xyience. Instead of cooperating with the agreement, it appears Xyience either intentionally or unintentionally breached it if the complaint's allegations are true. In true scamster style, this situation would have resulted in Xyience getting paid twice for the same order. What's worse is that the complaint also alleges Xyience stiffed R&R on an $8 commission for each case of Xenergy sold. Rather than confront the mess with integrity and professionalism, it seems the good folks at Xyience allegedly played hardball. The lawsuit paperwork also lays out how Xyience reportedly refused to duly credit R&R and then suddenly demanded payment on all outstanding invoices. This appears to be designed to back out of the contract the easy way if R&R could not pay and the contract were to go into default.

The complaint also adds a second breach of contract cause of action. This second claim details how Xyience's billing and invoicing was not up to snuff and goes into further detail about other failures of Xyience to meet their responsibilities as outlined in the distribution agreement. For a company trying to make major inroads with distributors this could be a red flag proving the company is not really in good hands as its newly crowned CEO will try to tell folks even while the same old stuff keeps happening behind the scenes.

This site, claiming to be the home page for R&R, still proudly boasts of the Xyience agreement with the company. While the lawsuit does not specify exactly how much damage R&R sustained financially as a result of the alleged Xyience breaches, the complaint request in excess of $75,000 in damages, attorney fees and court costs, and a jury trial.

The case is rife with evidence, which includes paperwork initialed MCC (Manchester Consolidated Corporation I'm guessing) where Xyience is supposed to initial. Manchester, which has at least two core former-Cott executives on staff (Cott makes Xenergy) bought Xyience last year out of bankruptcy for $15 million. Today, a company called Manzen is the official DBA (doing business as) of Xyience, indicating Zyen, LLC (A Fertitta Enterprises Company) is still playing an integral role in company management. It appears the purchase was a "rent to own" type agreement and not an outright cash for assets deal.

The next hearing in my own Xyience case comes on July 1, 2009 and will be in regards to sanctions Fertitta Enterprises attorneys have asked the judge to levy against me. This should be an interesting episode of the Xyience saga to say the least. Go to to learn more.

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