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Legal Dispute With Sentient Lasers In Utah

Sentient Lasers Vs Albany Cosmetic

The conflict with Sentient Lasers has lasted for more than three years. The post is an honest description of the legal battle between Utah’s Sentient Lasers LLC and Edmonton’s Albany Cosmetic and Laser Centre. All statements are supported by documents. Sentient Lasers is fully aware of the content of this blog post, and they are welcome to include documents, comments and feedback. 

The partnership began in 2019 when Albany Cosmetic and Laser Clinic in Edmonton and Sentient Lasers in Utah signed a contract to purchase a refurbished Ulthera and CoolSculpting machine. Buying refurbished machines from sentient lasers in Utah is a decision that I regret, and I wish to spare anyone else the same agony.

 

 April 26, 2019Albany cosmetic and laser clinic signed a contract to buy buy a refurbished CoolSculpting and Ulthera from Sentient Lasers in Utah. It is clear to on the contract that the downpayment is fully refundable and the price include one-year warranty. Please check the full contract here
 May 1st, 2019Albany Paid 5000 as a down payment to  The invoice is attached here. It shows clearly that we had one-year warranty on both machines
 June 24, 2019 

Medi-One refused to fund the transction as per Marie Mckend email:  Good Morning, Please note that Dr. Alhallak’s lease approval is being cancelled due to the inability to finalize the lease. We have to remove the file from our queue as it will not fund. Sorry we were unable to finalize this and meet everyone’s requirements.

Regards,
Medi-One Financial

 June 24, 2019 

Chris Cella Refused to cancel the transaction or refund the deposit as per his email:

Marie: That simply makes no sense. I’ve been in contact with Meridian One Capital. I spoke with Desiree on Thursday the 13th. Per my conversation with him he was supposed to send me an email with what he can issue as a guarantee to pay, additionally requests for me to respond back with information on our company. Apparently, the bank was having a hard time finding information about Sentient Lasers which has to be a mistake. 

  June 25, 2019 

Mr. Cella refused my request to cancel the transaction as per Chris Cella email: You are overreacting. Please call me. It’s Wednesday the 25th. Lasers cannot deliver in 3 days. I can get you a tracking
number and the estimated delivery date. I just telling you the truth about when the lasers can deliver. I just letting know
the truth. Please call me back.

 Nov 11, 2019

I discovered that every Coolsculping handpiece was broken and glued. I sent an email to Eric Graham in Sentient Lasers. I recieved the following email from Joseph Walston:

Dr. Alhallak, Per the terms of your agreement, you have 48 hours to inspect the machine for shipping damage at the time of arrival and an additional 30-day warranty on anything that was shipped to show you we stand behind our work. The machine was delivered on 7/8/19 and reaching out in November is far outside the 30 day warranty period. We would be happy to evaluate the handpiece if you want to work with Eric to get it shipped back in, but unfortunately, your warranty period is expired and this will have to come in as an evaluation. Thank you,

Nov 26th, 2019

Eric Graham denied the warranty and ask for money to fix the hand piece:

Hi Dr Alhallak. Happy to help. If you would like to send this in I will offer you a 50% discount on the initial evaluation work, from $450 down to $225. Any additional work needed would of course be billed separately. Unfortunately this is out of warranty (and has been for a number of months). From one message you sent me you mention “We used the cooladvantage piece for the first time” and in another message you sent me you stated “We use the applicator for 6 treatments only!”. We’re not sure what the truth is, but we are happy to help you out and offer a one-time 50% discount on the evaluation. We hope that helps. Please let me know and I can send you the paperwork for completion to send the applicator in.

Thanks

Nov 27th, 2019Email from Michael Sweig: Please leave us all alone, Sir.
Your handpieces were out of warranty when you contacted us about your alleged issues, and you admit you did not inspect the goods when delivered. You can make this about something else if you wish, claim it’s not about contract, etc., but to threaten social media attack for your own negligence is unethical and outrageous. And it’s extortion. Look it up. You tried to get something you wanted by threat when your own admissions betray any right to your demand. Like I said earlier, all you had to was be a gentleman.
I told you if you would retract your defamatory statement to your lender that we are scammers I would help you. Instead you flipped out when you did not like my response any more than you liked Eric Graham’s response to you. The LinkedIN screenshot I sent you makes a declarative statement that you have an MBA. You bio is deliberately misleading: “Strong business development professional with a Master of Business Administration (MBA)”…..
That’s just not true.
Good night. 
Feb 13th, 2020The Ulthera started to show code O error as it is still in the warranty
Feb 19th, 202Email from Michael Sweig as following: Good day, Ms McKend,
Dr. Alhallak is out of warranty, and he is a social media terrorist. We apparently have different cultural values. He thinks he can use social media to bludgeon business deals or accommodations people will not give him because he seeks concessions outside the contracts he made. Dr. Alhallak began attacking out company when he was already out of warranty, admitted he never inspected what we sent him until he was out of warranty, and still he persists. We will not negotiate with a social media terrorist.
Sincerely,
Michael Sweig
 Nov 19, 2020 Michael Sweig, the Director, Business & Gov’t Affairs of Sentient Laser started the arbitration process asking for of $1,500,000 USD in compensation. Please go through his letter here
May 14, 2021Michael Sweig withdraw from the case as per his email, and replaced by Chalie Wason. The email stated the following: Dear Ms. Quiroz, Please be advised I hereby withdraw as a party representative for Claimant in this arbitration. Mr. Wason remains for Sentient. Thank you, Arbitrator Zimmerman and Ms Quiroz for your efforts and attention to this proceeding. Please remove my access from the webfile.
Regards,
Michael
June 16, 2021Mr. Wason sent the following email: Dear Dr. Al‐Hallak – I hope you will keep this email between us. First, I want to thank you for speaking with Jim and I. We found the conversation very enlightening, appreciate your time and general collaborative attitude. Jim and I remain of the opinion that this matter should be resolved between us, as men of honor and spend our time focusing our attention on the future. Second, I wanted to let you know that I sit at my desk, not sure of the next step to take, so I am reaching out to you. As we explained, Jim and I are new to the equation and the people who we report to are captives of the painful history, that there is no need to rehash here. They look at it like you have already won (which I was asked to convey to you), as they have invested so much time and money in pursuing the Arbitrations and the damage your web sites have done (numerous deals have been lost or gone sideways as a result). Understandably, based upon the information conveyed to them during the pendency of this matter, they have a lack of trust which is amplified by being out of pocket well into the six figures over a $40 part. In addition, I was advised that like Jim and I, they want the matter resolved at this juncture and tasked me with being more creative. It was suggested that I look into the pending Hearing you have scheduled the end of July with the Alberta College of Pharmacy and see if there is anything we can offer, as far as assistance there. I looked at the web site containing the history of that matter and I don’t see anything of value we can offer. Your responses make it clear that not only are you dealing with a jealous competitor making baseless complaints, you also had a biased investigator. My review of that matter reaffirmed that you are a professional, a man of integrity and are continually looking to gain more knowledge and deliver cutting edge treatments to the people of Alberta. Please understand, that despite my personal sentiments conveyed above, I am an effective advocate and believe ultimately Sentient will “win” the Arbitration, get a significant Award, convert the Award in Utah to a Judgment and the resulting Judgment will be collectable in Canada, via the Treaties in place. However, the term “win” does not take into consideration the obvious “transactional friction” going in this direction. The “transactional friction” that both sides will need to endure, if I am tasked with pursuing this matter is incalculable and will likely go on for years. As you are no doubt aware, our expenses and lost business are an element of the damages we are seeking in the Arbitration and in my professional judgment they will be included in the Award, 100%. Despite anything else, Mr. Sweig is a clever lawyer and has the agreements, strategy and research in place to obtain a very significant Award. He parted ways with Sentient, in large part, due to his stewardship of this matter. I am asking your advise on anything creative we can do that would allow both parties to focus our attentions on more rewarding and profitable pursuits then this dispute. I am of the belief that if the Subpoenas are served, the course will be set and therefor, this is the last and best opportunity, collectively, for us to correct course and put this matter behind us.
I look forward to your advices.
Respectfully,

Sentient Laser Contract

Mr. Wason’s email confirms that the contract for Sentient lasers reflects bad faith from the very beginning. I regret that I have not consulted my attorney before signing the contract with them.  Here are some key points that you need to discuss with your attorny in order to be able to make educated decision.
1- Sentient laser contract mentions clearly that they have limited liability and they are selling the machines AS IS.
This means that you do not have the right to dispute the condition of the machine once you recieve it.
2- Arbitration is mantodary with sentient lasers, so you do not have the right to take them to court or even to post a bad review about them. Moreover hey are the only party that have the right to choose the aribtrator and they are in control of the whole procedure with the ICDR
3- Sentient Lasers are not a licensed reseller for the Tradename. Therefore, your business will have no right to advertise or even offer the service under the same name. For example, if you pay an Ulthera, or Coolsculpting machine, you would not have the right to advertise on Facebook or Instagram. The rightful owener for the Tradename will shut you down. 
4- You cannot get original consumable from sentient lasers, and you will need to pay more to buy it of the market. 

Contract between Sentient Lasers LLC and Albany Cosmetic and Laser Clinic

Quote: Kamal Alhallak @ Albany Cosmetic and Laser Clinic – Ulthera SL-SNB, Zeltiq Coolsculpt SL -19256

#: 1510606019

Date: 04/26/19 Expiration Date:

Organizations:                 Albany Cosmetic and Laser Clinic

Address:                          6637 177st

City/State/Zip:                  Edmonton, Alberta T5T4K3

Phone Number:               (780) 884-5073 Fax #:

Email:                              kalhallak@albanylaser.ca

Prepared By:                   Eric Graham

Address:                          4383 N Forestdale Dr

City/State/Zip:                  Park City, UT 84098

Phone Number:               (435) 333-3203

Email:                              e.graham@sentientlasers.com

Section Name

 

ITEM

DESCRIPTION

QUANTITY

UNIT PRICE

LINE TOTAL

Ulthera

SL-SNB

Make: Ulthera Model: Ultherapy Year: 2014

Hand Piece: Deep See

(1) Transducer refurbished and reset

1

$ 22,500.00

$ 22,500.00

Ulthera

(3) additional transducers refurbished and reset to complete a set of 4 with the one included above

3

$ 1,600.00

$ 4,800.00

Coolsculpt

SL-19256

Make: Zeltiq Model: Coolsculpt Year: 2016 Applicators:

CoolAdvantage Plus CoolAdvantage CoolSmooth Pro CoolCurve CoolCore

CoolFit CoolMax Accessories:

Key, Interlock, Foot Pedal, Power Cord, Operator Manual, Operator Eyewear, Patient Eyewear, Warning Sign

1

$ 49,995.00

$ 49,995.00

Crating & Shipping

Crating & Shipping

1

$ 0.00

$ 0.00

Warranty

Standard warranty per T/Cs below

1

$ 0.00

$ 0.00

Misc

Package deal, individual line items may not be broken out. Deal subject to sentient lasers management approval. Buyer should not schedule patients/treatments until after installation and testing of the unit purchased hereunder. Seller is not responsible for patient cancellation or revenue losses because of delays.

1

$ 0.00

$ 0.00

Deposit

$       

See Par. E of T/Cs below

1

$ 0.00

$ 0.00

Terms

Cash (Seller does not finance purchases) Cash funded from bank financing

1

$ 0.00

$ 0.00

kamal Alhallak

$2,500.00 USD

4/30/2019

deposit refundable upon 100% bank financing

pending finance approval

Sentient Lasers, (855) 819-3781

$2500 today,

$2500

TERMS AND CONDITIONS of Sentient Lasers Contract

 Buyer’s Initials

and Date4/30/20,19

. Buyer acknowledges that with its initials on this page, on

each and every other page of this Sales Agreement (“Agreement”), and with Buyer’s signature hereon, Buyer hereby accepts all of the provisions, and terms and conditions contained in this Agreement.

Acknowledgement of Agency

Buyer acknowledges that if [TheLaserTrader] or [MedPro, ] is acting as an Agent for Sentient Lasers, LLC (“Sentient lasers” or “Seller”), as may be indicated above, that pursuant to such agency, Sentient Lasers will be responsible for certain aspects of this sales transaction, which may include, but are not limited to billing and collection; logistics and delivery; installation; repairs and maintenance related to Blue Dot Certification,® and any post delivery warranty repairs.

Buyer’s Credit Card Authorization and Guarantee

  • Buyer hereby guarantees, represents and warrants, knowing Seller is relying thereon, that if Buyer uses a credit card to pay for the Product(s) contracted for herein, then: (a) the credit card information Buyer will provide to Seller is for a credit card that Buyer owns, controls and/or has authority to use for this transaction; and (b) Buyer shall promptly pay Seller for all of the costs, losses and expenses Seller incurs (including, without limitation, actual attorney fees and collection agency fees), if Buyer’s Credit Card Guarantee is false and/or Seller engages in collection efforts to receive or recover the purchase price due in whole or in part to Buyer’s breach of this Credit Card Guarantee.

Buyer’s Prices

  • All prices are quoted in U.S. Dollars and are exclusive of taxes, including state and local use, sales, property (ad valorem), and similar taxes. Buyer shall pay and indemnify Seller for such taxes (except taxes on Seller’s income), unless Buyer has provided Seller in advance of the purchase with a valid exemption resale certificate, or such sale is otherwise exempt from such Seller is not responsible for pricing, typographical, or other errors in any quote by Seller, and reserves the right to cancel any orders resulting from such errors. All quotes are subject to product availability and/or prior sale.

Buyer’s Payment

  • Buyer shall pay the purchase price, deposit, and any portion thereof in U.S. Dollars by wire transfer, credit card, cashier’s check, or other prearranged method of payment of cleared and available funds, to be pre- approved in Sentient laser’s sole discretion. Upon signing of this Agreement, Seller’s standard Terms for Buyer’s Payment apply:
  • Payment in Full. One hundred percent (100%) of the purchase price hereunder ($ ) is immediately due and payable.
  • If Buyer does not pay 100% of the purchase price upon signing of this Agreement, then 100% of the purchase price remains immediately due and payable, and within three (3) calendar days of the signing of this Agreement, Buyer shall pay a deposit of 20% (“Deposit”) of the Purchase Price ($ 10,000); and
  • Removal of Product(s) from the Market. Sentient Lasers hereby agrees, in consideration of Buyer’s timely payment of the Deposit before payment in full, to withdraw said Product(s) from the market until the payment due date, and to transfer its ownership interest to Buyer upon receipt of timely payment in full before delivery.
  • Ten Day Payment Period. The Deposit shall become nonrefundable on the eleventh (11th) business day after the signing of this Agreement, with the day of the signing of this Agreement counted as the first business If the Deposit is not paid within the aforesaid three calendar days, or if after timely payment of the Deposit, the entire balance (80%) of the purchase price has not been paid on or before the tenth (10th) business day from the date of signing this Agreement, then in addition to the non-refundable deposit, this Agreement shall terminate by its terms with no obligation whatsoever of Seller to Buyer.
  • Financing. Unless otherwise specified in this Agreement or agreed in a writing signed by SL, which is within Sentient laser’s sole discretion, Buyer shall have already obtained its financing, if any, and shall have timely paid Sentient Lasers in full, before Sentient Lasers has any obligation to transfer title or to make the Product available for shipment.
  • Buyer’s Failure to Pay. If Buyer fails to pay Sentient Lasers any amounts owed when due, Seller may put the Product(s) back on the market, and interest shall accrue on such unpaid amounts from the date due until paid in full at 1½% per month. Buyer shall reimburse Sentient Laser for all costs and expenses Sentient lasers incurs (including but not limited to actual attorney fees and collection agency fees) in its efforts to collect any unpaid amounts.

Buyer’s Authority, Licensure, and Waiver of Reliance for Selection of Goods

  • Buyer acknowledges the Products sold to it pursuant to this Agreement are energy based devices and / or their related accessories, including but not limited to medical Buyer hereby disclaims and waives any reliance upon Seller for selection of any goods, services or Products (“Product” or “Products”) to fit any specific request of Buyer. Buyer hereby represents that it/they are licensed estheticians and the like, and/or medical practitioners licensed in the State to which any Product(s) to be sold hereunder shall be delivered and/or operated; the above-identified Facility is supervised by a Medical Director or other supervisor permitted or required by the law of the State in which said Facility is located, and that Buyer has actual or apparent contractual authority, and legal authority under its State law to enter into this Agreement and operate the Products to be sold pursuant to this Agreement. Buyer further acknowledges that if Buyer does not have a medical license, Buyer is responsible for purchasing and operating the Products in accordance with all applicable state and local laws and regulations, including where appropriate, ensuring that the Products are operated under the supervision of a licensed medical practitioner. Buyer represents that its license is that of the licensed esthetician or the like, or a medical practitioner, and is in good standing and has satisfied all relevant state and local requirements that pertain to the purchase and operation of the prescription Products.
  • Buyer’s Assumption of Risk. Buyer acknowledges the Product(s) sold to it hereunder have been previously owned by a third party other than Seller. Buyer assumes all risk that these Product(s) may be subject to presently unknown or concealed senior secured creditor interests, including a UCC liens, that might have arisen before Seller’s ownership of said Product(s), and Buyer hereby holds Seller harmless from and against any adverse claims, loss, cost, or expense that might result from the assertion of any such senior secured creditor interests or UCC liens
  • Buyer’s Indemnity. Buyer hereby indemnifies, and shall defend and hold harmless Sentient lasers, its directors, officers, employees and agents, from any and all liabilities, damages, losses, claims or expenses, including court costs, expert witness fees and reasonable attorneys’ fees (“Losses”) arising out of or in connection with (i) any willful or negligent use of the Product(s) by Buyer and/or any of its employees, contractors or representatives; (ii) Buyer’s use, sale, lease, transfer or other exploitation of any Product(s) in a manner not authorized or reasonably contemplated by this Agreement; (iii) any injury or death of a person or damage to property to the extent caused by or arising out of any acts or omissions of Buyer, its agents, employees, and contractors, or in connection with Product(s) handled, stored, sold, applied or otherwise utilized by Buyer;
  • Buyer’s breach of this Agreement; and (iv) any failure by Buyer, its employees, agents or contractors, to comply with the terms of this Agreement, or applicable federal, state and local laws, regulations and guidances.
  • Seller’s Limitation of Liability: In no event will Sentient lasers, its officers, directors, employees, contractors or agents, be liable under any theory of recovery, whether based in contract, tort (including negligence and strict liability), warranty or otherwise, for any INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS, LOSS OF USE, COST OF COVER), OR PUNITIVE Under no circumstances will Sentient laser’s aggregate liability under any theory of recovery exceed the price paid for the products or services at issue. The prices and limitations of liability set forth in this Agreement reflect the allocation of risk agreed to by the Buyer and Sentient lasers. Buyer acknowledges that SL would not sell Products without these limitations on its liability and that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
  • Seller’s Limited Warranty. Buyer acknowledges the Products sold to it pursuant to this Agreement are energy based devices and / or their related accessories, including but not limited to medical lasers, which Products were acquired by Seller in used condition and are resold by Seller to Buyer “AS IS.” Unless this Agreement specifies a different warranty period, Seller warrants that the Product(s) to be sold to Buyer identified above will be in good working order upon the delivery date and for a period of thirty (30) days (“Warranty Period”) immediately following the delivery date.

Invalidation of Sentient laser’s Limited Warranty

  1. Buyer acknowledges that it shall invalidate Seller’s Limited Warranty if any of the Product(s) are: (1) installed, modified or repaired by anyone other than a facility or technician approved by Sentient lasers in writing in advance of the installation, modification and/or repair; (2) handled, maintained or used in a manner inconsistent with and/or contrary to the original manufacturer’s and/or Sentient laser’s recommended procedures and/or instructions; (3) damaged through Buyer’s accidental or intentional misuse, negligence, or abuse, or the same by Buyer’s employees, agents or representatives; and/or (4) damaged by any external cause outside of SL’s control, including but not limited to, damage due to any other person or entity moving the Product(s) from one location to another, power failure, earthquake, flood, fire or Act of God.
  2. Seller’s Disclaimers. Buyer acknowledges that it has not relied upon any warranty other than the Limited Warranty set forth above, and acknowledges that SL is not bound by any warranty that may be set forth in the manufacturer’s written materials that might have applied had Buyer purchased the Products directly from the manufacturer in their unused state. Except for the Limited Warranty set forth above, Seller hereby 
  3. EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND/OR IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

Warranty Service

  1. To be eligible for the service under SL’s Limited Warranty, Buyer must, within forty- eight (48) hours after discovering that it believes the Product(s) are not in good working order and within the Warranty Period:
  2. notify Sentient lasers in writing which specific Product(s) or part it believes are not in good working order and describe the facts and circumstances relating to the alleged failure of the Product(s) or part (hereinafter “Warranty Notice”); and 
  3. return such Product(s) or part to Sentient Lasers within thirty (30) days of the Warranty Notice for inspection and evaluation through SL’s designated custom broker to an authorized SL service location, unless SL expressly advises Buyer in writing that it is not required to return such defective Product(s) or part. Before returning any Product or part to SL, Buyer must obtain a return authorization number from SL. Buyer shall return the Product(s) or part in their original packaging marked with the return authorization number and in resalable condition. At SL’s sole discretion, SL may evaluate and/or service the defective Product(s) or part at Buyer’s place of business. Upon receipt, inspection and/or evaluation of the defective Product(s) or part, SL will determine, in its sole discretion, whether to: (i) repair the Product(s) or part; (ii) replace the Product(s) or part; and/or (iii) refund anequitable portion of the purchase price Buyer paid for the Product(s) or part. SL will notify Buyer in writing of the election. The foregoing remedies are SL’s sole obligation and Buyer’s sole remedy for any claim made under the Limited Warranty. Buyer acknowledges that unless SL states otherwise in writing, SL will utilize used parts to make any necessary repairs or replacements and the source or cost of such parts shall be determined solely by Sentient lasers.
  4. If Senetient lasers elects to repair or replace any defective Product(s) or part Buyer has returned to SL, then Sentient Lasers shall, within a reasonable time after receipt of those Product(s) or parts, make such replaced or repaired Product(s) or part available for shipment to Buyer Ex Works from SL’s facility. If SL elects to refund an equitable portion of the purchase price of such Product(s) or part, as determined by SL in its reasonable discretion, Sentient lasers will issue that refund to Buyer within a reasonable time after Sentient Lasers has received the returned Product(s) or part from Buyer.
  5. Provided Buyer has given Sentient Lasers Warranty Notice within the 48-hour period referenced above and the Products were not in good working order upon delivery to Buyer, then Sentient Lasers will make the shipping arrangements for the Products and pay for all of the shipping costs to and from the Buyer for service under SL’s Limited Warranty. If after an installation of Product(s) by Sentient lasers which Buyer has paid SL to install pursuant to this Agreement, and said installation by Sentient lasers occurred within two weeks of the date of Delivery, and SL’s technician concludes that after installation the Product(s) were not in good working order upon installation, then SL will make the shipping arrangements for the Products and pay for all of the shipping costs to and from the Buyer for service under Sentient lasers’s Limited Warranty. In all other situations in which Buyer has timely given Sentient Lasers Warranty Notice and timely returned the Products, Buyer shall make the shipping arrangements for the Products and pay for all of the shipping costs to SL for service under SL’s Limited Warranty, and SL shall make the shipping arrangements for the Products and pay for all of the return shipping costs to Buyer(s). SL is not responsible for the costs of international shipping relating to warranties.

Do not dispose of your packaging!

  1. Shipments Title Risk of Loss Insurance: All Product delivery dates are estimated. SL is not liable for any damages, costs or losses incurred by Buyer or others for failure to meet such delivery date(s). All of SL’s deliveries of Products are Ex Works at SL’s designated Title to the Products (except software products and documentation) and risk of loss and damage shall pass to Buyer when the Products are delivered and accepted by Buyer per the signed shipment waybill (hereinafter “Delivery”). Title to software products and documentation shall remain with the applicable licensors. Buyer must notify SL, in writing, upon signing and presenting this Agreement to Sentient Lasers, of any delayed or exceptional shipping requirements Buyer may have, including, but not limited to, facility availability or unique delivery requirements and pay for all of the additional costs SL incurs because of them. If Buyer fails to notify SL of such requirements at the time Buyer signs and presents this Agreement to SL, then Sentient Lasers will follow its typical order processing and delivery procedures and will not be liable for any exceptional shipping, delivery and/or storage costs, all of which shall be Buyer’s sole responsibility. Buyer shall obtain and maintain, at its sole expense, from the time of Delivery until payment by Buyer of the full amount due hereunder, insurance for the Products against loss, theft, damage or destruction for such Products’ full replacement value, with loss payable to SL or its assignee. Sentient lasers, of any delayed or exceptional shipping requirements Buyer may have, including, but not limited to, facility availability or unique delivery requirements and pay for all of the additional costs SL incurs because of them. If Buyer fails to notify SL of such requirements when Buyer signs and presents this Agreement to SL, then SL will follow its typical order processing and delivery procedures and will not be liable for any exceptional shipping, delivery and/or storage costs, all of which shall be Buyer’s sole responsibility.
  1. Export Controls. The Product(s) may include technology that is subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export control laws, orders and regulations of the country in which the Products are manufactured and/or Buyer is solely responsible for and shall fully comply with such laws, orders and regulations. Not limiting the foregoing, Buyer will not use for the benefit of, or sell, lease, export, re-export or otherwise transfer Product(s) to restricted end-users (including those on the U.S. Department of Commerce, Bureau of Industry and Security “Entity List” and other lists of denied parties) or to restricted or boycott countries identified by the U.S. Department of State or the U.S. Treasury Department. Buyer will obtain all necessary licenses and other governmental approvals prior to exporting or re-exporting the Products. Buyer and SL hereby disclaim the applicability of the 1980 U.N. Convention on the International Sale of Goods.
  2. Force Majeure: SL’s performance hereunder is subject to postponement or cancellation, in its sole discretion, for any cause beyond SL’s reasonable control, including without limitation: inability to obtain or transport safely any Product(s) or necessary materials and components; strikes, labor disturbances, and other unavailability of workers; fire, flood, and other acts of God; war, domestic or international terrorism, riot, civil insurrection, and other disturbances; production or engineering difficulties; and governmental regulation, orders, directives, and restrictions.
  3. Business-to-Business Transaction. The Parties agree this is not a consumer transaction, and hereby expressly exclude from this Agreement or the understandings of the Parties: (a) Rule R152-11, Utah Consumer Sales Practices Act Rule; (b) any analogous consumer protection law, statute or regulation in California, the State where the Seller is located as identified herein; and (c) any federal consumer protection statute or regulation.

Dispute Resolution.

  1. Choice of This Agreement shall be governed by and construed in accordance with the laws of the State of Utah without reference to its conflicts of laws principles.
  1. Dispute Resolution. The Parties agree that mediation and/or arbitration encourage broad enforcement of extrajudicial dispute resolution agreements into which, like this Agreement, the Parties enter The Parties agree that any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including but not limited to issues regarding the formation, applicability, breach, termination, validity or enforceability thereof, shall be submitted for extrajudicial resolution only; first to mediation, and if not resolved in mediation, then to arbitration.
  1. Mediation. As the agreed initial step of the Parties’ agreement to submit disputes for extrajudicial dispute resolution only, the Parties agree that for any matter in which the amount in controversy is $100,000 or less, and SL does not elect also to seek an order of replevin, the Parties shall submit the matter for an online, maximum of 2-hour mediation with JAMS Endispute Online If the matter is not resolved in the 2-hour mediation, the matter shall go to arbitration, as described here: https://www.jamsadr.com/endispute/ and in the following FAQ: https://www.jamsadr.com/files/Uploads/Documents/JAMSconnect/Endispute-FAQ.pdf. Sentient lasers may elect to bypass mediation, if in its sole discretion, it elects to seek an order of replevin in a State court of competent jurisdiction, regardless if the amount of damages SL may seek is less than $100,000.
  1. Arbitration. With the sole exception of judicial enforcement of an arbitration award, and Sentient lasers’ absolute right to seek an order of replevin in a State Court of competent jurisdiction, the Parties agree that no court shall have any jurisdiction over any matter of substantive or procedural All such questions shall be the sole province of one arbitrator. While the Parties do adopt Utah’s pubic policy favoring extrajudicial dispute resolution, e.g., arbitration, the Parties specifically agree that this Agreement is not subject to the Revised Uniform Arbitration Act (RUAA) as codified in UTAH CODE ANN. §§ 78-31a-101 through 131, except for Section 78-31a-127(2), which section the Parties do agree shall apply to this Agreement for the sole purpose of entering judgment on an arbitration award. Failing resolution in mediation of matters in which the amount in controversy is $100,000 or less, or for any matter in which the amount in controversy exceeds $100,000, the Parties agree that any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including but not limited to issues regarding the formation, applicability, breach, termination, validity or enforceability thereof, shall be administered, determined and resolved by the International Center for Dispute Resolution (IDCR.org), in accordance with its Expedited Procedures, found here: https://www.icdr.org/sites/default/files/document_repository/ICDR_Rules.pdf, at page 33. The regular, non-Expedited rules of the IDCR shall apply for cases in which the amount in controversy exceeds $250,000. Under the Expedited Procedures for arbitration proceedings in cases seeking non-monetary relief (including injunctive relief) in which the amount in controversy does not exceed $250,000 and cases that seek only monetary relief of up to $250,000, shall be decided by one arbitrator, without oral hearings and on written submissions and/or permitted evidentiary submissions, only. The formal seat of the arbitration regardless whether conducted only on written submissions and documents, shall be Park City, Utah. The arbitration award shall be final and binding on the parties, and the parties undertake to carry out any award without delay. Judgment upon the award may be entered by the U.S. District Court in Salt Lake City, a State Court of Utah, or any court having jurisdiction of the award or having jurisdiction over the relevant parties or the parties’ assets.

Miscellaneous:

  1. No Product Returns as Payment. SL will not accept the return of any Products [as defined herein] as settlement for any debt incurred hereunder and will only accept payment in full.
  1. No Assignments. Buyer will not assign or transfer any of the rights, duties, or obligations herein without SL’s prior written consent and any purported attempt to do so will be null and void.
  1. Suspension or Cancellation. This Agreement is subject to suspension of performance or cancellation by Seller, at Seller’s sole discretion at any time before shipping of the Product(s). If cancelled by Seller, Seller shall refund any otherwise nonrefundable deposit or other sums previously paid by Buyer.
  1. Entire Agreement / Modifications: This Agreement constitutes the complete understanding and intent of the parties concerning the subject matter hereof and supersedes all prior understandings, negotiations or offers, written or oral. This Agreement may be amended only in writing, signed by an authorized representative of Seller and SL’s CEO. Seller hereby represents that it has read and understands every word and each provision of this Agreement and has had ample time to ask questions if before signing this Agreement Seller had any questions about any aspect of this Agreement. Buyer shall not insert or attempt to insert any additional or different terms pertaining to the sale of the products and/or services hereunder. Buyer agrees that no such attempts by Buyer can be construed as SL’s acceptance of any additional or different terms. Any purported changes, alterations, modifications, amendments, or additions to this Agreement that do not precisely fulfill this requirement are not valid.
  1. Severability: If any provision of this Agreement is, for any reason, held invalid or illegal in any respect, such invalidity or illegality will not affect the validity of this Agreement itself or the enforceability of the remaining
  1. Notice. Any required notices shall be provided in writing to Buyer at the address or by email or fax as set forth in this Agreement, and to SL by email to Sales@sentientlasers.com or by overnight carrier to Sentient Lasers, LLC c/o Chris Cella, CEO, 4383 N Forestdale Dr., Park City, UT 84098, or to such other address as either party may substitute by written notice to the other.
  1. Counterpart Signatures: This Agreement may be signed in counterparts, and an electronically transmitted copy of an original signature shall be deemed the equivalent of an original signature. To accept and be bound by this Agreement, please sign, scan/email to SL/Seller at the email address stated on Page 1 hereof:

BUYER

 Signature of Business Owner/Operator,

4/30/2019

or other Principal or Authorized Agent of Buyer: [print name]

Street Address: City, State ZIP: Phone:

Email:

SELLER

 4/30/2019

SENTIENT LASERS, LLC, by Its Authorized Representative 4383 N Forestdale Dr., Suite 202

Park City, UT 84098

Same email address on Page 

What Happened between Albany Laser and Sentient Laser


To make it short, we agreed on buying some second-hand, blue dot certified machines, and Eric was very cooperative at first. As most of you know, financing a second-hand machine is not very easy as we are in Canada and the Sentient Laser is in the state. I signed the contract a put 10K as downpayment, and the contract was conditional as if the finance was not approved, then the downpayment should be refunded.

sentient lasers corruption 1
sentient lasers corruption 1
sentient lasers corruption 1

Motion to Vacate filed Albany Laser against Sentient Lasers

Benjamin D. Johnson (10275)

BENNETT TUELLER JOHNSON & DEERE

3165 East Millrock Drive, Suite 500 Salt Lake City, Utah 84121 Telephone: (801) 438-2000

Facsimile: (801) 438-2050

E-mail: ben.johnson@btjd.com

Attorney for Respondent 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

 

SENTIENT LASERS, LLC,

 

MOTION TO VACATE ARBITRATION AWARD

Petitioner,

 
 

Case No. 2:21-cv-00767-HCN-CMR

vs.

 
 

Judge Howard C. Nielson, Jr.

ALBANY COSMETIC AND LASER, INC.,

 

Respondent.

 

 

Respondent “Albany Cosmetic and Laser, Inc.” (“Albany”), by its counsel, hereby submits this Amended Motion to Vacate Arbitration Award (the “Motion”), in regards to the “final award” transmitted by the ICDR on or about March 30, 2022.

RELIEF REQUESTED AND GROUNDS

 

Petitioner seeks to confirm an arbitration award. Instead, the Court should vacate the arbitration award for the reasons set forth herein, in particular because of the admitted bias of the arbitrator and because the arbitrator exceeded his authority.

RELEVANT FACTUAL BACKGROUND

 Sentient Lasers, LLC (“Sentient”) sold Albany medical spa machines and related equipment (collectively, the “Equipment”) pursuant to an agreement signed on April 30, 2019 (the “Agreement”). See Declaration of Mohammed Kamal Alhallak (the “Alhallak Declaration.”) at ¶¶ 1–4, Exhibit The Alhallak Declaration is attached hereto as Exhibit A.

  1. The Agreement clearly lists the parties to the Agreement as “Sentient Lasers, LLC” and “Albany Cosmetic and Laser Clinic.” See id. ¶¶ 5–7.
  2. After the purchase of the Equipment, Albany Cosmetic and Laser Clinic complained about the condition of the Equipment. See id. ¶ 8.
  3. The Dispute Resolution provision of the Agreement states, in part: “The Parties agree that any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including but not limited to issues regarding the formation, applicability, breach, termination, validity or enforceability thereof, shall be submitted for extrajudicial resolution only; first to mediation, and if not resolved in mediation, then to arbitration.” See Alhallak Declaration, Exhibit 1 at p. 6, Ex. A.
  4. On November 19, 2020, Sentient initiated an arbitration action with the International Centre for Dispute Resolution (the “ICDR”) based on the arbitration provision contained in the See Notice of Arbitration. A true and correct copy of the Notice of Arbitration is attached hereto as Exhibit B.
  1. No mediation was held prior to the initiation of the arbitration as required by the Dispute Resolution provision. See Alhallak Declaration, ¶¶ 9–10, Ex. A.
  2. In the Notice of Arbitration, Sentient brought claims for void warranty, defamation, and interference. See Notice of Arbitration, Ex. B.
  3. Despite the Agreement listing “Albany Cosmetic and Laser Clinic” as party to the Agreement, Sentient initiated the arbitration against “Albany Cosmetic and Laser, Inc.”

See id. 

  1. Michael Zimmerman (the “Arbitrator”) was selected by the ICDR to be

the arbitrator, and as part of the selection process, he prepared and signed a General Arbitrator and Oath Form (the “Oath Form”). See Oath Form. A true and correct copy of the Oath Form is attached hereto as Exhibit C.

  1. In the Oath Form, the Arbitrator was asked: “Are you aware of any other information that may lead to a justifiable doubt as to your impartiality or independence or create an appearance of partiality?” (“Question 15”). See Oath Form at 2, Ex. C.
  2. The Arbitrator answered “Yes” to Question 15, indicating that there was a “justifiable doubt” as to his “impartiality or independence.”
  3. After a challenge to Zimmerman’s impartiality was raised, the Arbitrator commented on his answer to Question See Arbitrator Email. A true and correct copy of the Arbitrator Email is attached hereto as Exhibit F. The Arbitrator only said he had no

recollection of why he answered in the affirmative to Question 15 and did not refute any bias. See id.

  1. Application of the Agreement’s arbitration provision resulted in a “final order” against “Albany Cosmetic and Laser, ” (the “Final Order”). See Final Order. A true and correct copy of the Final Order is attached hereto as Exhibit E.
  2. The Final Order included rulings on issues not related to the Agreement including defamation, intentional interference with existing or potential economic relations, Lanham Act violations, and trademark infringement. See Final Order at 2–5, Ex. E.
  3. Violations of the Lanham Act and trademark infringement were not even mentioned in the Notice of Arbitration as subjects of the arbitration. See Notice of Arbitration, Ex. B.
  4. Respondent suffered from medical problems with his eyes and underwent several eye surgeries around the time of the arbitration proceedings, which prevented him from fully participating in those proceedings. See Alhallak Declaration, ¶¶ 13–14, Ex. A.
  5. After the Arbitrator issued his Final Order, Respondent received communications from the ICDR indicating that a “final award” has not been issued yet but would be issued by March 30, 2022. See id. ¶¶ 15–17.
  6. Due to the Arbitrator’s stated bias and other defects in the Final Order, Respondent filed a Motion to Vacate with the ICDR, requesting that the Final Order be vacated and that the proceedings be repeated. See ICDR Motion to Vacate. A true and correct copy of the ICDR Motion to Vacate is attached hereto as Exhibit D; Alhallak

Declaration, ¶ 12, Ex. A.

  1. On or about March 17, 2022, the ICDR sent the parties a letter in which it declined to vacate or repeat arbitration. See ICDR Declinature Letter. A true and correct copy of the ICDR Declinature Letter is attached hereto as Exhibit G.
  2. On or about March 28, 2020, the Arbitrator purported to issue an actual final award (the “Purported Final Award”). See Purported Final Award. A true and correct copy of the Purported Final Award is attached hereto as Exhibit H.
  3. On or about March 30, 2022, the ICDR sent the parties a letter explaining that the Arbitrator had issued a final award. See ICDR Final Award Letter. A true and correct copy of the ICDR Final Award Letter is attached hereto as Exhibit I.
  4. On or about April 14, 2022, Petitioner filed its Amended Petition to Confirm Arbitral Award and Enter Judgment in Conformance with Award (the “Amended

Petition”). See Amended Petition, Court Docket, 4/14/2022.

  1. In the Amended Petition, Petitioner added to or amended its original petition to include the following information:
    1. “This is an action to confirm an arbitral award entered on March 28, 2022, by the Honorable Michael Zimmerman against Respondent Albany Cosmetic Laser, Inc., a/k/a Albany Cosmetic and Laser Clinic (‘Albany’) and in favor of Sentient.” See Amended Petition ¶ 1.
    2. “Albany filed a Motion to Vacate Arbitration Proceedings with the International Centre for Dispute Resolution on or about February 22, ” Id. ¶ 11.
  1. “On or about March 30, 2022, the International Centre for Dispute Resolution, Case Number 01-20-0015-7701 transmitted the ” Id. ¶ 12.
  2. “The Honorable Michael D. Zimmerman’s questionnaire as arbitrator in the Oath Form, under the section relating to ‘bias,’ provided the following explanation: ‘In making these disclosures, it also should be noted that I was a member of the Utah Supreme Court for 16 years and members of the law firms on both sides of this matter may have appeared before that court in litigation. I have no knowledge as to whether any of the party representatives or parties appeared before the Utah Supreme Court during the time I served there. I do not believe any of the foregoing would bias me in any way toward any party in this matter.’ The Honorable Michael D. Zimmerman affirmed under oath his ability to operate as an effective and unbiased ” Id. ¶ 13.
  3. “Albany had notice of the arbitration at all applicable ” Id. ¶ 14.
  1. On or about April 20, 2022, Respondent emailed Petitioner and the ICDR challenging the amount awarded in the Purported Final See Email from Dr. Alhallak. A true and correct copy of the Email from Dr. Alhallak is attached hereto as Exhibit J.
  2. On or about April 21, 2022, a representative of Sentient responded to the Email from Alhallak, in which he recognized that there was a significant error in the amount awarded and consented to having the final award amended yet again. See Email

Response from Sentient. A true and correct copy of the Email Response from Sentient is attached hereto as Exhibit K.

  1. As acknowledged by Sentient, the award amount was incorrect because the

$47,142 awarded for ICDR fees and Arbitrator expenses had been calculated into the final award twice. See id.

  1. On or about April 21, the ICDR confirmed that it had received and reviewed these communications between the See Email Response from the ICDR. A true and correct copy of the Email Response from the ICDR is attached hereto as Exhibit L.
  2. The ICDR indicated by email correspondence that pursuant to Rule 33, any challenges to the form of the order should be made no later than April 27, 2022. See id.
  3. On or about April 26, 2022, Respondent submitted further challenges to the Purported Final Award (the “April 26, 2022 Motion”). The ICDR has not yet ruled on the April 26, 2022 Motion. A true and correct copy of the April 26, 2022 Motion is attached hereto as Exhibit M.

ARGUMENT

 

I.                   The Arbitrator Stated He Had Reasons to Doubt His Own Impartially.

 

The Federal Arbitration Act states that “the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration . . . where there was evident partiality or corruption in the arbitrators.” 9 U.S.C. § 10(a)(2) (emphasis added). “A fundamentally fair hearing requires . . . that the decisionmakers are not infected with bias.” Cline v. Chase Manhattan Bank USA, Nat.

 

 Ass’n, No. 2:07CV650 DAK, 2008 WL 4200154, at *8 (D. Utah Sept. 12, 2008). In other

words, “[C]lear evidence of impropriety . . . justifies the denial of summary confirmation of an arbitration award.” Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1147 (10th Cir. 1982).

Evidence of bias means “evidence of bias or interest of an arbitrator that is direct, definite and capable ofdemonstration rather than remote, uncertain, or speculative.” Legacy Trading Co. v. Hoffman, 363 F. App’x 633, 635 (10th Cir. 2010) (cleaned up).

By answering “Yes” to Question 15, the Arbitrator admitted he would lack impartiality while acting as the arbitrator. The Arbitrator never gave a reasonable explanation as to why he answered in the affirmative, all that is known is that he admitted to a “justifiable doubt as to [his] impartiality or independence.” Little can be more direct and definite than an arbitrator’s own admission of bias. Therefore, the Court should vacate the Purported Final Award.

II.               The Arbitrator Exceeded His Powers When Issuing His Ruling.

 

The Federal Arbitration Act states that “the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of anyparty to the arbitration . . . where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4) (emphasis added). In this case, the Arbitrator exceeded his powers in two different ways: first, by ruling on issues beyond the alleged breach of contract, and second, by ruling against a party with whom there is no agreement.

  1. The Arbitrator exceeded his powers when ruling on issues beyond the

 Section 10(a)(4) “has been interpreted as occurring when an arbitrator rules on matters outside of his proper consideration.” Valentino v. Smith, No. CIV-91-564-AR, 1992 WL 427881,at *5 (W.D. Okla. Sept. 30, 1992). “The power and authority of the arbitrators in an arbitration proceeding is dependent on the provisions of the arbitration agreement under which the arbitrators were appointed.” Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831 (11th Cir. 1991). Thus, when a tort claim constitutes an “independent wrong from any breach” of the contract, it “does not require interpretation of the contract and is not arbitrable,” Tracer Rsch. Corp. v. Nat’l Env’t Servs. Co., 42 F.3d 1292, 1295 (9th Cir. 1994), even if there is a connection between a breach of contract and the tort claims. See Armada Coal Export, Inc. v. Interbulk, Ltd.,726 F.2d 1566, 1568 (11th Cir.1984). A reviewing court may conclude “that the arbitrator exceeded his authority” if the court “determine[s] that the award covers areas not contemplated by the submission agreement or determine[s] that the award is without foundation in reason or fact.” Youngs v. Am. Nutrition, Inc., 537 F.3d 1135, 1141 (10th Cir. 2008) (internal quotation marks omitted); see, e.g., Totem Marine Tug & Barge, Inc. v. N. Am. Towing, Inc., 607 F.2d 649 (5th Cir. 1979) (vacating award because arbitrators ruled on issues not submitted to them).

By signing the Agreement, the parties agreed to mediate (which was never held and a violation of the Agreement)—and, if necessary, arbitrate—issues “regarding the formation, applicability, breach, termination, validity or enforceability” of the Agreement. See Alhallak Declaration, Exhibit 1 at 6. In other words, the parties agreed that disputes regarding the sale

and purchase of the Equipment were to be arbitrated, not unrelated tortious conduct such as defamation, improper intentional interference with economic relations, Lanham Act violations, or trademark infringement—issues that the Arbitrator independently chose to rule on and several of which were not included in the Notice of Arbitration (e.g., alleged Lanham Act violations and trademark infringement). See Final Order, Ex. E; Notice of Arbitration, Ex. B. By ruling on these claims—which are beyond the scope of the Agreement—the Arbitrator exceeded his powers and violated the Federal Arbitration Act.

Therefore, the Court should vacate the Purported Final Award and allow the proceedings to be repeated.

  1. The Arbitrator exceeded his powers when ruling against a party with whom there is no

 It is obvious that a plaintiff cannot sue a defendant for a breach of contract if the plaintiff has no contract with the defendant. See Hiatt v. Brigham Young Univ., 512 F. Supp. 3d 1180, 1184 (D. Utah 2021) (“In Utah, the necessary elements of a breach of contract claim are (1) a contract . . .”). And “It is axiomatic that an individual not a party to a contract may not be held liable for a breach of that contract.” Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 901 (10th Cir. 2005) (cleaned up); see also Catlin v. Salt Lake City Sch. Dist., No. 2:08-CV- 00362-CW-PMW, 2014 WL 4662466, at *8 (D. Utah Sept. 18, 2014) (holding that a defendant “cannot be liable for any alleged breach of a contract to which he was not a party”). Thus, to receive an enforceable award, the plaintiff must sue the correct party. See,

 e.g., Shell Offshore, Inc. v. Greenpeace, Inc.,709 F.3d 1281, 1295 n.7 (9th Cir. 2013) (J. Smith, Concurring) (“To obtain any legal relief, a plaintiff must sue the correct entity.”).

While there is an Agreement between Sentient and “Albany Cosmetic and Laser Clinic,” there is no agreement between Sentient and “Albany Cosmetic and Laser, Inc.” Any arbitration proceedings should have been commenced against Albany Cosmetic and Laser Clinic. By issuing a ruling against a party that is not subject to the arbitration agreement, the Arbitrator has exceeded his powers. Sentient now seeks to confirm that ruling and collect against an entity with which it does not have an arbitration agreement. Thus, the Court should vacate the Purported Final Award and allow the proceedings to be repeated.

III.            The ICDR Has Yet to Issue a Final Order.

 The Federal Arbitration Act states that “the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration . . . where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9

U.S.C.A. § 10(a)(4) (emphasis added).

For an arbitrator’s award to be considered final, two events must occur: “First, the award must be completed, or executed, by the arbitrator. Second, the award must be delivered or declared.” United Steelworkers of Am., AFL-CIO-CLC v. Ideal Cement Co., Div. of Ideal Basic Indus., 762 F.2d 837, 842 (10th Cir. 1985). “[T]he law is clear that the mere act of signing an award cannot finalize it” and “[t]he signed award must be delivered or declared for it to become final.” Id.; see also United Transp. Union v. Gateway W. Ry. Co., 284 F.3d 710,

713 (7th Cir. 2002) (“The Federal Arbitration Act is explicit that an award is unenforceable unless final, and an award that was never made (executed, perhaps, but not issued) is the best example of a nonfinal award that occurs to us.”).

After the Arbitrator issued his Final Order, Respondent received communications from the ICDR suggesting that a final award had, in truth, not yet been entered. For example, on February 4, 2022, Respondent received an email stating, “This will serve to confirm that, according to parties’ agreement, Claimant shall submit its comments regarding the challenge by close of business February 25, 2022. The Arbitrator shall not be copied on any comments related to the challenge. This will also serve to confirm that the ICDR has determined that the final award shall be made by no later than March 30, 2022.” See Email from the ICDR director, Alhallak Declaration, Ex. 3 (emphasis added). This email and others like it suggested that, while the Arbitrator may have signed an award, that award had not yet been officially “delivered or declared.”

The fact that no final award had been officially executed was later confirmed when the ICDR issued its Purported Final Award on March 28, 2022. Thus, Respondent was correct in his assertions that the Arbitrator had “so imperfectly executed [his powers] that a mutual, final, and definite award upon the subject matter submitted was not made.” 9

U.S.C.A. § 10(a)(4).

Furthermore, despite the issuance of the Purported Final Award, both the ICDR and Sentient have acknowledged that the final award will need to be amended yet again because the amount listed in the Purported Final Award is incorrect. See Email Response from

Sentient, Ex. K; Email Response from the ICDR, Ex. L. Thus, because the final award still has to be amended, the Purported Final Award is effectively not final. Additionally, as explained below, Respondent is presently challenging the Purported Final Award because the ICDR has not corrected the errors Sentient admits exist in the Purported Final Award.

Therefore, the Court cannot confirm the Purported Final Award and, if anything, given the admitted errors, should vacate the Purported Final Award.

IV.             There Is a Pending Challenge to the Purported Final Award.

 Article 33 of the ICDR Procedures states that “Within 30 days after the receipt of an award, any party, with notice to the other party, may request the arbitral tribunal to interpret the award or correct any clerical, typographical, or computational errors.” See Article 33 of the ICDR Procedures. A true and correct copy of the Article 33 of the ICDR Procedures is attached hereto as Exhibit N. In accordance with Article 33 of the ICDR Procedures, on

April 26, 2022, Respondent submitted a motion challenging the Purported Final Award because the ICDR has not corrected the errors Sentient admits exist in the Purported Final Award. See April 26, 2022 Motion, Ex. M. The ICDR has yet to rule on the April 26, 2022 Motion. Because the April 26, 2022 Motion is still before the ICDR, the Court cannot confirm the Purported Final Award. Instead, it should be vacated.

V.                The Arbitrator Is Guilty of Misconduct for Not Postponing the Arbitration.

 The Federal Arbitration Act states that “the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration . . . where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.” 9 U.S.C. § 10(a)(3) (emphasis added).

“[T]he Tenth Circuit has held that courts have created a basic requirement that an arbitrator must grant the parties a fundamentally fair hearing.” Cline v. Chase Manhattan Bank USA, Nat. Ass’n, No. 2:07CV650 DAK, 2008 WL 4200154, at *8 (D.Utah Sept. 12, 2008)

(cleaned up). Thus, a court may vacate an arbitration award “if it appears that ‘misconduct’ by an arbitrator prejudiced the rights of a party to the proceeding.” Youngs v. Am. Nutrition, Inc., 537 F.3d 1135,1140–41 (10th Cir. 2008).

In his Final Order, the Arbitrator recognized that he “proceeded in the absence of the Respondent” in several arbitration proceedings. See Final Order at 1, Ex. E. The reason for Respondent’s absence is that during those proceedings, Respondent suffered from various medical problems with his eyes. In fact, Respondent underwent a number of eye surgeries throughout 2020 and 2021. These issues rendered Respondent unable to fully participate in the arbitration proceedings. See id. Because the Arbitrator did not postpone the proceedings, Respondent did not have the opportunity to be adequately heard or present evidence. Despite Respondent’s inability to attend, the Arbitrator continued with the proceedings, eventually issuing his Final Order. Because Respondent was robbed of the opportunity for a “fundamentally fair hearing,” the Court should vacate the Purported Final Award.

CONCLUSION

 

For the reasons stated, the Motion should be granted.

DATED this 27th of April 2022.

BENNETT TUELLER JOHNSON & DEERE

/s/ Benjamin D. Johnson                Benjamin D. Johnson

Attorneys for Respondent

 Benjamin D. Johnson (10275)

BENNETT TUELLER JOHNSON & DEERE

3165 East Millrock Drive, Suite 500 Salt Lake City, Utah 84121 Telephone: (801) 438-2000

Fax: (801) 438-2050

Email: ben.johnson@btjd.com

Attorneys for Respondent

 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

 

SENTIENT LASERS, LLC,

Petitioner,

DECLARATION OF MOHAMMED KAMAL ALHALLAK

 Civil No. 2:21-cv-00767-HCN-CMR

vs.

ALBANY COSMETIC AND LASER, INC.,

Respondent.

District Judge Howard C. Nielson, Jr. Magistrate Judge Cecilia M. Romero

I, Mohammed Kamal Alhallak, hereby state as follows:

  1. I am over 18 years of
  1. I have personal knowledge of the facts and circumstances of this matter and I have carefully reviewed all documents attached hereto.
  2. I run a medical spa clinic known as Albany Cosmetic and Laser Center which Petitioner refers to as Albany Cosmetic and Laser Clinic.
  1. Sentient Lasers, LLC sold my business two medical-spa machines and related equipment pursuant to an agreement signed on April 30, 2019 (the “Agreement”). See Agreement attached hereto as Exhibit 1.
  2. The Agreement lists the parties to the Agreement as “Sentient Lasers, LLC” and “Albany Cosmetic and Laser Clinic.” See Id.
  3. There is no such entity formed by me known as Albany Cosmetic and Laser, Inc., which is the entity named in the arbitration proceeding that is the subject of this matter and which is also named as Respondent in this matter.
  4. The Agreement was not with Albany Cosmetic and Laser, as I have not formed any such named entity. If this entity exists, I am not familiar with the entity.
  5. After the purchase of the equipment, on behalf of my business, I contacted Sentient Lasers, LLC and lodged complaints about the condition of the equipment and requested repairs be made or refunds issued. I was told that the equipment was out of warranty, but that Sentient would look at the equipment if I paid them diagnostic fees. I believed this to be very unfair and contrary to Sentient Lasers’ obligation to sell me equipment in good working order.
  6. I understand now that Sentient Lasers, LLC initiated an arbitration, although as a lay person, I was not familiar with these legal processes.
  7. No mediation was held prior to the initiation of the arbitration as required by the Dispute Resolution provision in the Agreement.
  1. Well after the arbitration was commenced, it came to my attention that Michael Zimmerman had answered “Yes” to Question 15 of the Oath Form, and I raised that issue with the ICDR.
  2. My attorneys have also filed a motion with the ICDR to vacate the arbitration proceedings, and as of this date, no ruling has been issued. This motion is attached as Exhibit D to the present motion to vacate filed in this Court.
  3. I suffer from macular degeneration, which is a serious eye disease which may lead to blindness. I underwent several eye surgeries around the time of the arbitration proceedings, which prevented me from fully participating in the arbitration proceedings.
  4. For example, on May 5, 2021, I had surgery on my right eye and afterwards I was required to keep my head in a face down position for the following six See Letter from Messard Medical Clinic. A true and correct copy of the Letter from Messard Medical Clinic is attached hereto as Exhibit 2.
  5. Michael Zimmerman prepared a document named “final order” and dated December 16, 2021.
  6. Afterwards, I received communications from the ICDR indicating that a final award has not been issued in the arbitration and that one would be issued at the end of March 2022. See Letter from the ICDR. A true and correct copy of the Letter from the ICDR is attached hereto as Exhibit 3.

Case 2:21-cv-00767-HCN-CMR  Document 16-1  Filed 04/27/22  PageID.181  Page 5 of 20

  1. I have repeatedly asked for clarification from the ICDR as to whether the final order is in fact “final,” but it has not provided clarification to me. I understand that counsel for Sentient Lasers, LLC has also asked for the same clarification.
  2. As of now, the ICDR has also not ruled on the motion fil_edby my attorneys to vacate the “final order” issued by arbitrator Michael Zimmerman.

I declare under penalty of perjury that the foregoing is true and correct. DATED this 15th day of March, 2022.

Case 2:21-cv-00767-HCN-CMR  Document 16-1  Filed 04/27/22  PageID.182  Page 6 of 20

EXHIBIT 1

Quote: Kamal Alhallak @ Albany Cosmetic and Laser Clinic – Ulthera SL-SNB, Zeltiq Coolsculpt SL

-19256

#: 1510606019

Date: 04/26/19 Expiration Date:


EXHIBIT B

Case 2:21-cv-00767-HCN-CMR  Document 16-2  Filed 04/27/22  PageID.198  Page 2 of 2

NOTICE OF ARBITRATION

 Date:

November 19, 2020

To: Name (of the party on which the request is to be served):

Albany Cosmetic and Laser, Inc., Kamal Al-Hallak, Salem Tomi, Adel Abdulhafid,

Nationality: Canadian

Address: 6637 177 Ave,

City: Edmonton

State/Province: Alberta

Country: Canada

Postal Code: T5T4K3

Telephone: (780) 884-5073

Facsimile:

Email: kalhallak@albanylaser.ca, abdulhaf@ualberta.ca, westoliverclinic@gmail.com

Name of Representative: (if known)

Name of Firm: (if applicable)

Address:

City:

State/Province:

Country:

Postal Code:

Telephone:

Facsimile:

Email:

The named claimant, a party to an arbitration agreement contained in a written contract, dated 4/20/19                                                                                                                                                                        providing for arbitration under the

 International Dispute Resolution Procedures

Commercial Arbitration Rules and Mediation Procedures (AAA) Procedures for Cases under the UNCITRAL Arbitration Rules Other (please specify):

hereby demands arbitration.

Nature of the Dispute: (attach additional sheets, if necessary) Seeking Emergency Injunctive Relief, at this stage. Void Warranty, Defamation, Interference

The Claim or Relief Sought: (the amount, if any) Emergency Injunction

Type of Business: Claimant Laser Dealer

Respondent: Med Spa

Claimant’s Request Number of Arbitrators:

One

Place of Arbitration:

Park City, Utah

Language:

English

You are hereby notified that copies of our arbitration agreement and this Notice are being filed with the International Centre for Dispute Resolution, with a request that it commence administration of the arbitration. Under the rules, you may file a Statement of Defense within the time specified in the rules after notice from the administrator.

Name of Claimant: Sentient Lasers, LLC

Nationality: American

Address: (to be used in connection with this case) 1629 K St., NW, Suite 300

City: District of Columbia

State/Province: DC

Country: USA

Postal Code: 20006

Telephone: 888 519 2841

Facsimile: 619 489 6954

Email: m.sweig@sentientlasers.com

Name of Representative: (if known) Michael Sweig, JD, LLM

Name of Firm: (if applicable) same as above

Address: same

City: same

State/Province: same

Country: same

Postal Code: same

Telephone: same

Facsimile: same

Email: same

Notice: To begin proceedings, please file online at www.adr.org/fileonline. You will need to upload a copy of this Demand and the Arbitration Agreement, and pay the appropriate fee.

Signature: (may be signed by a representative)

/ Michael Sweig /

Title: Dir. Bus. & Gov’t Affairs

Date: Nov. 19, 2020

If you have any questions, please contact the International Centre for Dispute Resolution at 1.888.855.9575 or +1.212.484.4181 or visit our website at www.icdr.org.

 

EXHIBIT C

 American Arbitration Association

 Sentient Lasers, LLC Vs.

Albany Cosmetic and Laser, Inc.

Case# 01-20-0015-7701

Notice of Appointment for Hon. Michael Zimmerman Disclosure Obligations

It is most important that the parties have complete confidence in the arbitrator’s impartiality. Therefore, please

disclose any past or present relationship with the parties, their counsel, or potential witnesses, direct or indirect, whether financial, professional, social or of any other kind. This is a continuing obligation throughout your service on the case and should any additional direct or indirect contact arise during the course of the arbitration or if there is any change at any time in the biographical information that you have provided, it must also be disclosed. Any doubts should be resolved in favor of disclosure. If you are aware of direct or indirect contact with such individuals, please describe it below. Failure to make timely disclosures may forfeit your ability to collect compensation. All disclosures will be brought to the attention of the parties.

Instructions

You will not be able to serve until this duly executed Notice of Appointment has been completed and submitted. Please review the Disclosure Guidelines found by navigating to the My Tasks screen from the menu on the left, and after conducting a conflicts check, answer the following questions and complete the remainder of this Notice of Appointment.

Should the answer to any of the following questions be “Yes”, or if you are aware of any other information that may lead to a justifiable doubt as to your impartiality or independence or create an appearance of partiality, then describe the nature of the potential conflict(s) in the space provided.

  1. Do you or your law firm presently represent any person in a proceeding involving any party to the arbitration? Answer : NO
  1. Have you represented any person against any party to the arbitration? Answer : NO
  1. Have you had any professional or social relationship with counsel for any party in this proceeding or the firms for which they work?

Answer : NO

  1. Have you had any professional or social relationship with any parties or witnesses identified to date in this proceeding or the entities for which they work?

Answer : NO

  1. Have you had any professional or social relationship of which you are aware with any relative of any of the

parties to this proceeding, or any relative of counsel to this proceeding, or any of the witnesses identified to date in the proceeding?

Answer : NO

  1. Have you, any member of your family, or any close social or business associate ever served as a neutral in a proceeding in which any of the identified witnesses or named individual parties gave testimony?

Answer : NO

  1. Have you, any member of your family, or any close social or business associate been involved in the last five years in a dispute involving the subject matter contained in the case which you are assigned?

Answer : NO

  1. Have you ever served as an expert witness or consultant to any party, attorney, witness or other arbitrator identified in this case?

Answer : NO

  1. Have any of the party representatives, law firms or parties appeared before you in past arbitration cases? Answer : NO
  1. Are you a member of any organization that is not listed on your panel biography that may be relevant to this arbitration?

Answer : NO

  1. Have you ever sued or been sued by either party or its representative? Answer : NO
  1. Do you or your spouse own stock in any of the companies involved in this arbitration? Answer : NO
  1. If there is more than one arbitrator appointed to this case, have you had any professional or social relationships with any of the other arbitrators?

Answer : NO

  1. Are there any connections, direct or indirect, with any of the case participants that have not been covered by the above questions?

Answer : NO

  1. Are you aware of any other information that may lead to a justifiable doubt as to your impartiality or independence or create an appearance of partiality?

Answer : YES

Comments : In making these disclosures, it also should be noted that I was a member of the Utah Supreme Court for 16 years and members of the law firms on both sides of this matter may have

appeared before that court in litigation. I have no knowledge as to whether any of the party representatives or parties appeared before the Utah Supreme Court during the time I served there. I do not believe any of the foregoing would bias me in any way toward any party in this matter.

Arbitrator’s Oath

 I attest that I have reviewed my biographical information provided to the parties on this case and confirm it is current, accurate and complete.

I attest that I have diligently conducted a conflicts check, including a thorough review of the information provided to me about this case to date, and that I have performed my obligations and duties to disclose in accordance with the Rules of the American Arbitration Association, Code of Ethics for Arbitrators in Commercial Disputes, the parties’ agreement, and applicable law pertaining to arbitrator disclosures.

I further affirm that consistent with the applicable Rules of the American Arbitration Association, the Code of Ethics for Arbitrators in Commercial Disputes, the parties’ agreement, and applicable law:

  • That I am fit to serve on the above-referenced arbitration and able to fully execute my responsibilities during all phases of the case;
  • That I will keep confidential all matters relating to the above-referenced arbitration;
  • That I will maintain a professional demeanor and appearance of impartiality during all phases of this case;
  • That I will endeavor to effectively manage all phases of this case with a commitment to speed, economy and just resolution in a manner consistent with the parties’ expectations;
  • That I will bill parties responsibly and ethically and will review my bills for reasonableness relative to the nature and scope of the activity performed prior to submitting them to the AAA.

The arbitrator being duly sworn, hereby accepts this appointment.

Terms of Compensation

 

Before proceeding, please indicate that you have reviewed the Notice of Compensation Arrangements for this case.


Once completed, please indicate your acceptance of this appointment as arbitrator by entering your initials in the space provided.

(MDZ)

Hon. Michael Zimmerman 27-Jan-21

EXHIBIT D

Case 2:21-cv-00767-HCN-CMR  Document 16-4  Filed 04/27/22  PageID.204  Page 2 of 4

February 22, 2022

SENT VIA EMAIL

 

Yanett Quiroz ICDR Director

International Centre for Dispute Resolution American Arbitration Association

9 Greenway Plaza, Suite 1275

Houston, Texas 77046 yanettquiroz@adr.org

Re:    Motion to Vacate Arbitration Proceedings—Case No. 01-20-0015-7701

 Ms. Yanett Quiroz:

The law office of Bennett Tueller Johnson & Deere has been retained regarding the arbitration commenced by Sentient Lasers, LLC against Albany Cosmetic and Laser, Inc., Case No. 01-20-0015-7701. At the outset you should know that Sentient Lasers, LLC commenced this arbitration claim against the incorrect party. I inform you of this defect as it appears this arbitration is defective from start to finish.1

See Contract, Exhibit 1. This error is compounded by the fact there is no legal entity in Canada known as Albany Cosmetic and Laser, Inc.

To this issue, the subject sales agreement clearly indicates that Sentient Lasers, LLC contracted with “Albany Cosmetic and Laser Clinic” not with “Albany Cosmetic and Laser, Inc.,” which is the party identified in the Notice of Arbitration.

See Contract, Exhibit 1. This error is compounded by the fact there is no legal entity in Canada known as Albany Cosmetic and Laser, Inc.

I am also highly concerned that a sales agreement for a laser has resulted in the arbitration of defamation and intellectual property claims. These claims have nothing to do with the sales agreement between Sentient Lasers, LLC and Albany Cosmetic and Laser Clinic. Id. Sentient Lasers, LLC has abused the arbitration process by including claims that should not have been subject to arbitration.

1        I am also concerned that the arbitration fees paid by Sentient are insufficient and inconsistent with the ICDR fee schedule. Please provide proof that appropriate filing fees were paid by Sentient. If proper filing fees were not paid to initiate this arbitration, the award should be vacated for this reason as well.

The aforementioned defects are unfortunately not the most concerning issues with the present arbitration. A clear issue of arbitrator bias is now squarely before the ICDR tribunal. And this arbitrator bias was disclosed by the arbitrator, Mr. Zimmerman, but not acted upon by the ICDR. Instead, the ICDR allowed Mr. Zimmerman to serve as the arbitrator.

Specifically, at paragraph 15 of the General Arbitrator Oath Form (the “Oath”), Mr.

Zimmerman was required to make the following disclosure:

15. Are you aware of any other information that may lead to a justifiable doubt as to your impartiality or independence or create an appearance of partiality?

 Mr. Zimmerman’s response:

Answer : YES

 See Oath, Exhibit 2.

In the Oath, Mr. Zimmerman provided no explanation of the “information” that could lead to a “justifiable doubt as to [his] impartiality or independence.” Id. And there is no evidence the ICDR inquired about this disclosure, or was even aware of the disclosure until it was presented to the ICDR by Dr. Kamal Alhallak of the Albany Cosmetic and Laser Clinic. It is most concerning that the ICDR failed to properly screen Mr. Zimmerman from this appointment given the admitted bias in the Oath.

Mr. Zimmerman’s recent email to you does not resolve concerns about the disclosed bias. In his email of January 31, 2022, Mr. Zimmerman again failed to explain the paragraph 15 disclosure stating only that “I am enquiring of my assistant, Samantha Rammel, about the “yes” response to question 15 on the oath. I have no recollection of anything that would have led me to give her an instruction to write “yes” in that box.” See Email, Exhibit 3.

This response is concerning on multiple levels. First, it appears Mr. Zimmerman tasked a third party with preparing the Oath, and his comments suggest that he did not review the Oath when it was submitted to the ICDR. Id. This is unacceptable.

Second, and more importantly, Mr. Zimmerman in his email does not state that there was in fact no “justifiable doubt” about his “impartiality or independence,” but instead merely states he has “no recollection” as to why he answered affirmatively in response to paragraph 15. Id. This is a wholly insufficient explanation of arbitrator bias and cannot be accepted.

Given Mr. Zimmerman’s admission in the Oath of “justifiable doubt” as to his “impartiality or independence,” the ICDR should not have allowed Mr. Zimmerman to serve as the arbitrator in this dispute. Article 13 of the ICDR rules requires that “Arbitrators acting under these Rules shall be impartial and independent” (emphasis added) and that the “arbitrator shall disclose any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence.” Clearly, impartiality and independence are mandatory under the ICDR rules. Id. And without impartiality and independence, the ICDR is not a credible forum to resolve disputes.

Given Mr. Zimmerman’s disclosure, pursuant to Article 14 of the ICDR rules, his continued service is unacceptable and he must immediately be replaced as the arbitrator in this matter. Further, all arbitration proceedings involving Mr. Zimmerman must be vacated and repeated with a new arbitrator. This is expressly allowed by Article 15 of the ICDR rules, which states that “if a substitute arbitrator is appointed under this Article . . . the arbitral tribunal shall determine . . . whether all or part of the case shall be repeated.” Respondent hereby moves and demands that Mr. Zimmerman be removed as arbitrator, that all orders of Mr. Zimmerman be vacated, and that all proceedings since his appointment be repeated.2

The ICDR’s failure to replace Mr. Zimmerman as the arbitrator, vacate his rulings, and repeat the proceedings will certainly result in the vacatur of the award under the Federal Arbitration Act, 9 U.S.C. § 10. The Federal Arbitration Act provides grounds upon which an arbitration award must be vacated, including where there was “evident partiality” by an arbitrator. Id. Here, given Mr. Zimmerman’s admission of bias, federal law will certainly by applied to vacate the present award.

Similarly, the award is likewise subject to vacatur because Mr. Zimmerman “exceeded [his] powers” by giving an award against a party not subject to the sales agreement on claims not related to the sales agreement, defamation and intellectual property claims. Id.

 

In short, this arbitration is fatally flawed from start to finish. All aspects of this arbitration involving Mr. Zimmerman must be vacated and the proceedings repeated. This is ultimately in the best interests of all parties as it avoids certain litigation in United States federal court and Canadian courts over an invalid and unjust award. Please advise me of your intentions by no later than March 1, 2022.

Sincerely,

Benjamin D. Johnson, Esq.

2 This motion was not made earlier due to medical problems experienced by Kamal Alhallak, a director of the Albany Cosmetic and Laser Clinic. Dr. Alhallak, for extensive time periods in both 2020 and 2021, suffered from serious eye conditions that severely inhibited his ability to review filings in this matter. See Medical Letters, attached as Exhibit EXHIBIT E

 AMERICAN ARBITRATION ASSOCIATION INTERNATIONAL CENTER FOR DISPUTE RESOLUTION

 ORDER NO. 7 FINAL ORDER

No. 01-20-0015-7701

Hon. Michael D. Zimmerman

On November 8, 2021, at 10:00 a.m. MT, the tribunal held an evidentiary hearing on Claimant Sentient Lasers, LLC’s motion for entry of an award of damages against Respondent Albany Cosmetic and Laser, Inc. and an injunction. Notice of the hearing and all the written evidentiary material before the tribunal was served upon Respondent and its agents, Dr. Kamal Al-Hallak; Dr. Salem Tomi, M.D.; and Dr. Adel Abdulhafid, M.D. Claimant appeared through its counsel, Charles W. Wason. No one appeared for the Respondent. Following the hearing, the matter was taken under advisement. The arbitrator, Hon. Michael D. Zimmerman (Ret.) now renders this judgment.

To reprise this matter: It has proceeded in the absence of the Respondent, as did the two prior proceedings concerning the same subject matter, one before the WIPO and the other before an ICDR emergency arbitrator. In both prior proceedings, orders were entered against the Respondent’s infringing activities and yet the conduct complained of continued. In this proceeding, the arbitrator determined that by reason of the purchase agreement between the parties, this tribunal has jurisdiction over the dispute because it arises out of a purchase contract containing an arbitration clause. See Order No. 1, dated March 10, 2021, and Order No. 2, dated April 6, 2021. Following the latter order, a brief note was received by the ICDR, counsel for Claimant, and the arbitrator from Dr. Al­ Hallak indicating that Respondent would persist in its course of allegedly wrongful conduct against Claimant. Order No. 3, dated April 27, 2021, and attachment. A scheduling conference was held on July 13, 2021, at which Respondent did not appear. The arbitrator determined that Respondent was in default and that Claimant was entitled to seek a judgment on the merits, subject to proving up the elements of its claims. Order No. 5, dated July 13, 2021. Claimant filed a motion for Summary Disposition, setting forth the facts and law in support of its claims.

On September 17, 2021, Order No. 6 was entered. The arbitrator found facts and concluded that Claimant had proven its claims under the Lanham Act, including trademark infringement. Claimant also proved common law defamation and interference with existing or potential economic relations by improper means under Utah law, and Claimant showed that it was harmed. Specifically, Order No. 6 found that Respondent and its agents have acted with wrongful and malicious intent in publishing false and defamatory statements regarding Claimant and its business practices through use of internet sites the domain names of which have used Claimant’s trademarked name unlawfully with the specific purpose of diverting internet traffic to Respondent’s sites where they discouraged potential customers from purchasing from Claimant. Respondent has expressed an intention to persist in this conduct, which the tribunal finds has and will continue to cause Claimant harm. Claimant was invited to file a motion for a determination of the damages and any additional relief to which it is entitled. A damages brief, together with supporting declarations, was filed and a hearing held.

Based on the foregoing orders and findings, and as well the evidence and argument presented in the damages brief, the following award is entered:

  1. Award for Utah common law defamation and intentional interference with existing or potential economic relations by improper means.

The arbitrator finds, by clear and convincing evidence, that Respondent has intentionally and maliciously defamed Claimant, as found in Order No. 6, with a specific intention to interfere with its existing and potential economic relations by means of false statements published through web sites that used Claimant’s trademark to divert traffic to them.

With respect to damages from this conduct, Claimant has shown the loss of at least one sale as a result of the false and defamatory statements of Respondent, with a likely gross sale price of more than $115,000. In addition, another purchaser used its reticence grounded on information gathered from one of Respondent’s sites to persuade Claimant to grant a deeper discount on a product sold. Deel. E. Graham at 2. Other declarations from Claimant’s employees indicate that there is good reason to believe that other sales were lost by reason of third parties finding one of the several sites online using Claimant’s trademark. The nature of Respondent’s conduct makes it extremely unlikely that Claimant will be able to identify with specificity sales that it has lost as a consequence of this intentional defamatory conduct. The arbitrator finds by clear and convincing evidence that this is precisely what Respondent and its agents intended.

In its damages briefing, Claimant does not offer proof of monetary damages beyond the evidence of the one lost sale and the other situation where a deeper discount resulted from concerns generated by Respondent’s sites. There is no evidence, for

example, that the sales made during the period of Respondent’s wrongful conduct were less than had been made in a prior period, or that the trend line of growth was diminished. And there is no expert evidence regarding any diminution in value of Claimant’s brand as a result of Respondent’s activities. Absent such evidence, the arbitrator has no basis for fixing a dollar amount of damages caused by Respondent’s wrongful conduct.

There is also evidence before the tribunal of emotional distress caused to owners and employees of Claimant resulting from family members reading the defamatory information, and from acquaintances bringing the defamatory material to the attention of the company and its employees. But again, no basis has been offered for converting this evidence into a monetary award.

It is true that there is ample evidence of the malicious intention of Respondent and its agents and their intention to continue this course of conduct. They have proliferated the fact Respondent’s agents have continued to proliferate websites that carry names infringing Claimant’s trademarks designed to divert those inquiring about Sentient Lasers to Respondent’s defamatory materials. A number of these sites were mounted after the initial determination by the WIPO that the initial site was infringing. The arbitrator also finds that Dr. Al-Hallak has used the internet in a similar fashion to attack others who have given him some offense. This conduct suggests that damages to Claimant will continue to accrue and will continue to be virtually impossible to prove with any certainty. This evidence supports the call for injunctive elief, but not damages.

The only hard evidence of monetaiy damages offered by Claimant is its expenditure of $80,121.80 in costs and attorney fees spent in obtaining an order to shut down one infringing website and an emergency ICDR award, and to prosecute this arbitration. Based on this proof, the Claimant is entitled to an award of $80,121.80 plus any costs and fees awarded in this arbitration.

It is appropriate to note that under Utah law, a party found to have committed an intentional tort is exposed to punitive damages only upon a finding by clear and convincing evidence that the conduct was “willful and malicious or intentionally fraudulent, or manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.” Utah Code Ann.§ 78B-8-201. See, e.g., Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988); Biesele v. Mattena, 2019 UT 30,137, 449 P.3d 1. The conduct here is found to meet that standard and punitive damages would be appropriate. However, no award of punitive damages will be entered because of Article 31.5 of the ICDR Procedures, which govern this proceeding under the terms of Claimant’s sales contract with Respondent. Article 31.5 provides as follows:

Unless the parties agree otherwise, the parties expressly waive and forego any right to punitive, exemplary, or similar damages unless any applicable

law(s) requires that compensatory damages be increased in a specified manner. This provision shall not apply to an award of arbitration costs to a party to compensate for misconduct in the arbitration.

Reviewing the sales agreement, the arbitrator finds nothing in it which would satisfy the requirement of 31.5 that both parties expressly agree to the entry of punitive damages.

Therefore, no such award will be made.

The total damages awarded under this claim is $80,121.80 in compensatory damages.

  1. Award for Lanham Act violations and trademark

Claimant has a valid trademark in “Sentient Lasers”, which Respondent has infringed repeatedly by using that mark or a confusingly similar counterfeit mark in commerce without Claimant’s permission and willfully in a manner designed and intended to create confusion. The effort has been successful and has captured the attention of actual and potential customers of Claimant, causing harm to Claimant. Respondent has acted willfully and intentionally and with the malicious purpose of diverting customers from Claimant’s site for the purpose of defaming Claimant to actual and potential customers and has been successful in discouraging potential customers from purchasing from Claimant and in harming Claimant’s reputation. This conduct violates two related provisions of the Lanham Act.

  • Lanham Act 43(a)

First, Respondent has violated section 43(a) of the Lanham Act, 15 U.S.C.

  • l 125(a), and an award for that violation may include both damages and the costs of the action. 15 U.S.C. § 11 l 7(a). Here, as under Utah law, the arbitrator fixes the compensatory damages proven by Claimant to be $80,121.80. The arbitrator also awards Claimant a “reasonable attomey fee” as the prevailing party under section 11 l 7(a) because the arbitrator finds this an “exceptional case” based on the flagrant and persistent unlawful conduct of Respondent and its agents.

Under section l 1 l 7(a), which provides that “the comi may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount,” the arbitrator would be inclined to award an additional amount because the conduct of Respondent is designed to, and has, made proof of lost sales impossible. However, as noted, Article 31.5 of the IDCR Procedures bars such an award absent an express agreement between the parties. No such agreement was made here.

  • Lanham Act 43(d)

Second, and in the alternative, the arbitrator enters a statutory award under section 43(d) of the Lanham Act, 15 U.S.C. § ll 17(d), against Respondent for infringing conduct that is a willful violation of the statute. Under section 43(d), a claimant may elect to recover, in lieu of its actual damages or defendant’s profits, a statutory amount fixed by the tribunal of not more than $100,000 per domain name used in the willful unlawful conduct. Here, the Respondent has established seven domain names that wrongfully and intentionally use the trademarked name “sentient” or “sentient” and “laser” in them, which were intended to and did divert traffic to Respondent’s sites where Claimant

was intentionally and maliciously defamed to its harm. Based on section 43(d), the arbitrator awards Claimant $100,000.00 per domain name, a total of $700,000, in addition to “reasonable attorney fees,” as an elective alternative to the actual damages award under paragraph 2.1.

  1. Award of costs of

In addition to the foregoing, the Claimant is awarded all costs of this arbitration permitted by Article 34 of the ICDR Procedures. This is detennined to be reasonable given the nature of the case and the conduct of Respondent.

Counsel for Claimant is directed to submit to the tribunal within 5 business days an itemization of all such costs and reasonable supporting materials. The arbitrator will promptly enter a specific amount as an award.

  1. Injunctive

The Lanham Act entitles Claimant to injunctive relief for Respondent’s violation of section 43(a) and (d). See 15 U.S.C. 1116. The arbitrator finds that Respondent is currently maintaining-and is likely to continue to maintain-websites that are violative of Claimant’s trademark rights and are designed to divert traffic to Respondent’s defamatory sites. Respondent’s actions have caused, and will likely continue to result in, irreparable harm to Claimant which cannot be accurately determined because of the nature of Respondent’s activities.

Therefore, the arbitrator enters as part of this award an order directing Respondent and its agents, including its directors, officers, and employees to cause all content found by this ruling to be defamatory or otherwise violative of Utah common law or Federal law on the internet websites registered under the following domain

names-Lasersentient.com, sentientusedlaser.com, Sentient-laser.com, Sentient- lasers.com, Sentientlasers.net, Albanylaserts.ca/sentient-laser/, and www.sentientlasert.org-to be removed and sequestered in a manner that it cannot be viewed by any third-party or the general public on the aforementioned sites. They are also

directed not to post to other websites containing the matter found to be violative of Utah common law and the Lanham Act in this proceeding.

The Respondent and its agents, including its directors, officers, and employees, are permanently enjoined from directly or indirectly registering, owning, and/or operating any other domain names incorporating the name “Sentient Lasers” or any colorable imitations thereof or any name using components of the name “Sentient Lasers” in a manner that make the resulting name an apparent referent to “Sentient Lasers.”

This injunction may be enforced by proceedings to punish for contempt or otherwise.

The breach by Respondent of any of its obligations under this Final Order would give rise to irreparable harm for which monetary damages would not be an adequate remedy and in the event of such breach, Claimant, in addition to any and all other rights and remedies that may be available, shall be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction. In addition, the relevant registrars of the domain names listed above are ordered and directed to transfer each domain name registration to the owner of the infringed mark, Sentient Lasers, LLC.

Google and other search engines are ordered and directed to “deindex” the aforementioned sites so as to prevent them from appearing in any search.

So Ordered:

Dated: December 16, 2021

 Ben Johnson

 

 From: Michael D. Zimmerman <mzimmerman@zjbappeals.com> Date: Mon, Jan 31, 2022 at 9:48 PM

Subject: Re: Objection

To: Dr. Alhallak <alhallak@ualberta.ca>, Charlie Wason <c.wason@sentientlasers.com>, ICDR Yanett Quiroz

<YanettQuiroz@adr.org>, Samantha RammeII <srammell@zbappeals.com>, UTDecf Clerk

<utdecf  clerk@utd.uscourts.gov>, awahlquist@kmclaw.com <awahlguist@kmclaw.com>, jgreen@kmclaw.com

<jgreen@kmclaw.com>

Ms. Quiroz,

As to the contributions cited by Dr. Alhallak, I am instructing Julia Sati, the administrator of Two Arrows Zen, to review his documents and assure me that all contributions made in the early hours of January 26, 2022 were returned. We did return two, for a total of $100, early in the day on January 26.

I am enquiring of my assistant, Samantha Rammel, about the “yes” response to question 15 on the oath. I have no recollection of anything that would have led me to give her an instruction to write “yes” in that box.

Regards,

Michael Zimmerman Arbitrator

d delete this e-mail without reading, printing, copying or forwarding it to anyone. Thank you for your kind collaboration.


 

Charles Wason, JD Sentient Lasers, LLC 4838 Forestdale Drive

Suite 202

Park City, UT Utah

Billal A. Saleem Forum Law LLP 11835 – 149 Street NW

Edmonton, AB, T5L 2J1 Canada

Kamal Al-Hallak, MD

Albany Cosmetic and Laser, Inc. 6637 177 Avenue

Edmonton AL T5T 4K3 Canada

Benjamin Johnson, Esq.

Bennett Tueller Johnson & Deere 3165 East Millrock Drive

Suite 500

Salt Lake City, UT 84121

Case Number: 01-20-0015-7701 Sentient Lasers, LLC

-vs-

Albany Cosmetic and Laser, Inc.

Dear Parties,

After careful review of the comments submitted by the parties, and pursuant to our authority under the applicable Rules, the ICDR Administrative Review Council has determined that the challenge is hereby denied and Arbitrator Zimmerman is therefore re-affirmed.

Sincerely,

/s/

Rafael Carlos del Rosal Carmona, LL.M. Director

Direct Dial: (212)484-4180 Email: RafaelCarmona@adr.org Fax: (212)246-7274

On behalf of

 

Yanett Quiroz Director

Direct Dial: (832)308-5626 Email: YanettQuiroz@adr.org Fax: (tem)pad-min

EXHIBIT H

 

INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION

International Arbitral Tribunal

 
  

Sentient Lasers, LLC

 
  

Claimant,

v.

ICDR Case No. 01-20-0015-7701

Albany Cosmetic and Laser, Inc. Respondent.


FINAL AWARD

 I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreement entered into between the above-named parties and dated April 30, 2019, and having been duly sworn, and having duly heard the proofs and allegations of the parties, do hereby, AWARD, as follows:

The Order No. 7, Final Order, dated December 16, 2021, attached hereto, is incorporated in this Award in all its terms as part of the Final Award in this case.

Since the Final Order was prepared by the undersigned and circulated by the ICDR to the parties for comment, the Respondent, who declined to participate in the arbitration process, has sent several communications to the ICDR, the Claimant, and the undersigned complaining that the arbitration process was biased and unfair and that the Respondent intends to resist the award. In addition, in the early hours of Wednesday, January 26, 2022, Dr. Alhallak, the apparent principal of the Respondent and one of the persons who has been served with all papers as this matter has proceeded in arbitration, made two $50 donations over the internet to a 50 l(c)(3) religious not for profit corporation of which the undersigned is president. They were discovered some five hours later, and the undersigned immediately directed that staff refund the contributions. Dr. Alhallak was informed by the undersigned that it was inappropriate for contributions to be made to an entity associated with the arbitrator and that any further contributions would be immediately returned.

These attempted donations were promptly disclosed to all parties by the ICDR and their comments on whether they affected the arbitrator’s suitability to serve were sought.

Award

The undersigned has made no alterations in the Final Award since these attempted contributions were made. The foregoing statement is made in the interest of complete disclosure.

For the reasons stated in the Final Award dated December 16, 2021, I award as follows:

1.

Within thirty (30) days from the date of transmittal of this Final Award to the parties, Albany Cosmetic and Laser, Inc. hereinafter referred to as Albany, shall pay to Sentient Lasers, LLC., hereinafter referred to as Sentient, the sum of US$ 780,121.80

2.

The administrative fees and expenses of the International Centre for Dispute Resolution (ICDR) totaling US$19,350.00 shall be borne by Albany, and the entire compensation and expenses of the arbitrator totaling US$27,792.00 shall be borne by Albany. Therefore, Albany shall reimburse Sentient the sum of US$47,142.00, representing that portion of said fees and expenses in excess of ·. the apportioned costs previously incurred by Sentient.

3.

This award is in full settlement of all claims submitted to this Arbitration.

  


I hereby certify that, for the purposes of Article I of the New York Convention of 1958, on the Recognition and Enforcement of Foreign Arbitral Awards, this Final Award was made in Salt Lake City, Utah, United States of America.

No. 01-20-0015-7701

Hon. Michael D. Zimmerman

On November 8, 2021, at 10:00 a.m. MT, the tribunal held an evidentiary hearing on Claimant Sentient Lasers, LLC’s motion for entry of an award of damages against Respondent Albany Cosmetic and Laser, Inc. and an injunction. Notice of the hearing and all the written evidentiary material before the tribunal was served upon Respondent and its agents, Dr. Kamal Al-Hallak; Dr. Salem Tomi, M.D.; and Dr. AdelAbdulhafid, M.D. Claimant appeared through its counsel, Charles W. Wason. No one appeared for the Respondent. Following the hearing, the matter was taken under advisement. The arbitrator, Hon. Michael D. Zimmerman (Ret.) now renders this judgment.

To reprise this matter: It has proceeded in the absence of_the Respondent, as did the two prior proceedings concerning the same subject matter, one before the WIPO and the other before an ICDR emergency arbitrator. In both prior proceedings, orders were entered against the Respondent’s infringing activities and yet the conduct complained of continued. In this proceeding, the arbitrator determined that by reason of the purchase agreement between the parties, this tribunal has jl!-risdiction over the dispute because it arises out of a purchase contract containing an arbhration clause. See Order No. 1, dated

March 10, 2021, and Order No. 2, dated April 6, 2021. Following the latter order, a brief

note was received by the ICDR, counsel for Claimant, and the arbitrator from Dr. Al­ Hallak indicating that Respondent would persist in its course of allegedly wrongful conduct against Claimant. Order No. 3, dated April 27, 2021, and attachment. A scheduling conference was held on July 13, 2021, at which Respondent did not appear. The arbitrator determined that Respondent was in default and that Claimant was entitled to seek a judgment on the merits, subject to proving up the elements of its claims. Order No. 5, dated July 13, 2021. Claimant filed a motion for Summary Disposition, setting forth the facts and law in support of its claims.

On September 17, 2021, Order No. 6 was entered. The arbitrator found facts and concluded that’Claimant had proven its claims under the Lanham Act, including trademark infringement. Claimant also proved common law defamation and interference with existing or potential economic relations by improper means under Utah law, and Claimant showed that it was harmed. Specifically, Order No. 6 found that Respondent and its agents have acted with wrongful and malicious intent in publishing false and defamatory statements regarding Claimant and its business practices through use of internet sites the domain names of which have used Claimant’s trademarked name unlawfully with the specific -purpose of diverting internet traffic to Respondent’s sites where they discouraged potential customers from purchasing from Claimant. Respondent has expressed an intention to persist in this conduct, which the tribunal finds has and will continue to cause Claimant harm. Claimant was invited to file a motion for a determination of the damages and any additional relief to which it is entitled. A damages brief, together with supporting declarations, was filed and a hearing held.

Based on the foregoing orders and findings, and as well the evidence and argument presented in the damages brief, the following award is entered:

  1. Award for Utah common law defamation and intentional interference with existing or potential economic relations by improper

The arbitrator finds, by clear and convincing evidence, that Respondent has intentionally and maliciously defamed Claimant, as found in Order No. 6, with a specific intention to interfere with its existing and potential economic relations by means of false statements published through web sites that used Claimant’s trademark to divert traffic to them.

With respect to damages from this conduct, Claimant has shown the loss of at least one sale as a result of the false and defamatory statements of Respondent, with a likely gross sale price of more than $115,000. In addition, another purchaser used its reticence grounded on information gathered from one of Respondent’s sites to persuade Claimant to grant a deeper discount on a product sold. Deel. E. Graham at 2. Other declarations from Claimant’s employees indicate that there is good reason to believe that other sales were lost by reason of third parties finding one of the several sites online using Claimant’s trademark. The nature of Respondent’s conduct makes it extremely unlikely that Claimant will be able to identify with specificity sales that it has lost as a consequence of this intentional defamatory conduct. The arbitrator finds by clear and convincing evidence that this is precisely what Respondent and its agents intended.

In its damages briefing, Claimant does not offer proof of monetary damages beyond the evidence of the one lost sale and the other situation where a deeper discount resulted from concerns generated by Respondent’s sites. There is no evidence, for

example, that the sales made during the period of Respondent’s wrongful conduct were less than had been made in a prior period, or that the trend line of growth was diminished. And there is no expert evidence regarding any diminution in value of Claimant’s brand as a result of Respondent’s activities. Absent such evidence, the arbitrator has no basis for fixing a dollar amount of damages caused by Respondent’s wrongful conduct.

There is also evidence before the tribunal of emotional distress caused to owners and employees of Claimant resulting from family members reading the defamatory information, and from acquaintances bringing the defamatory material to the attention of the company and its employees. But again, no basis has been offered for converting this evidence into a monetary award.

It is true that there is ample evidence of the malicious intention of Respondent and its agents and their intention to continue this course of conduct. They have proliferated the fact Respondent’s agents have continued to proliferate websites that carry names infringing Claimant’s trademarks designed to divert those inquiring about Sentient Lasers to Respondent’s defamatory materials. A number of these sites were mounted after the initial determination by the WIPO that the initial site was infringing. The arbitrator als finds that Dr. Al-Hallak has used the internet in a similar fashion to attack others who have given him some offense. This conduct suggests that damages to Claimant will continue to accrue and will continue to be virtually impossible to prove with any certainty. This evidence supports the call for injunctive relief, but not damages.

The only hard evidence of monetary damages offered by Claimant is its expenditure of $80,121.80 in costs and attorney fees spent in obtaining an order to shut down one infringing website and an emergency ICDR award, and to prosecute this arbitration. Based on this proof, the Claimant is entitled to an award of $80,121.80 plus any costs and fees awarded in this arbitration.

It is appropriate to note that under Utah law, a party found to have committed an intentional tort is exposed to punitive damages only upon a finding by clear and convincing evidence that the conduct was “willful and malicious or intentionally fraudulent, or manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.” Utah Code Ann.§ 78B-8-201. See, e.g., Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988); Biesele v. Mattena, 2019 UT 30, ,J 37,449 P.3d 1. The conduct here is found to meet that standard and punitive damages would be appropriate. However, no award of punitive damages will be entered because of Article 31.5 of the ICDR Procedures, which govern this proceeding under the terms of Claimant’s sales contract with Respondent. Article 31.5 provides as follows:

Unless the parties agree otherwise, the parties expressly waive and forego any right to punitive, exemplary, or similar damages unless any applicable

law(s) requires that compensatory damages be increased in a specified manner. This provision shall not apply to an award of arbitration costs to a party to compensate for misconduct in the arbitration.

Reviewing the sales agreement, the arbitrator finds nothing in it which would satisfy the requirement of 31.5 that both parties expressly agree to the entry of punitive damages.

Therefore, no such award will be made.

The total damages awarded under this claim is $80,121.80 in compensatory damages.

  1. Award for Lanham Act violations and trademark

Claimant has a valid trademark in “Sentient Lasers”, which Respondent has infringed repeatedly by using that mark or a confusingly similar counterfeit mark in commerce without Claimant’s permission and willfully in a manner designed and intended to create confusion. The effort has been successful and has captured the attention of actual and potential customers of Claimant, causing harm to Claimant.  Respondent has acted willfully and intentionally’ and with the malicious purpose of diverting customers from Claimant’s site for th purpose of defaming Claimant to actual and potential customers and has been successful in discouraging potential customers froin. purchasing from Claimant and in harming Claimant’s reputation. This conduct violates’ two related provisions of the Lanham Act.

  • Lanham Act 43(a)

First, Respondent has violated section 43(a) fthe Lanham Act, 15 U.S.C.

  • 1125(a), and an award for that violation may include both damages and·the costs of the action. 15 U.S.C. § 111?(a). Here, as under Utah law, the arbitrator fixes the compensatory damages proven by Claimant to be $80,121.80. The arbitrator also awards Claimant a “reasonable attorney fee” as the prevailing party under section 1117(a) because the arbitrator finds this an “exceptional case” based on the flagrant and persistent unlawful conduct of Respondent and its agents.

Under section 1117(a), which provides that “the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount,” the arbitrator would be inclined to award an additional amount because the conduct of Respondent is designed to, and has, made proof of lost sales impossible. However, as noted, Article 31.5 of the IDCR Procedures bars such an award absent an express agreement between the parties. No such agreement was made here.

  • Lanham Act 43(d)

Second, and in the alternative, the arbitrator enters a statutory award under section 43(d) of the Lanham Act, 15 U.S.C. § 1117(d), against Respondent for infringing conduct that is a willful violation of the statute. Under section 43(d), a claimant may elect to recover, in lieu of its actual damages or defendant’s profits, a statutory amount fixed by the tribunal of not more than $100,000 per domain name used in the willful unlawful conduct. Here, the Respondent has established seven domain names that wrongfully and intentionally use the trademarked name “sentient” or “sentient” and “laser” in them, which were intended to and did divert traffic to Respondent’s sites where Claimant

was intentionally and maliciously defamed to its harm. Based on section 43(d), the arbitrator awards Claimant $100,000.00 per domain name, a total of $700,000, in addition to “reasonable attorney fees,” as an elective alternative to the actual damages award under paragraph 2.1.

  1. Award of costs of

In addition to the foregoing, the Claimant is awarded all costs of this arbitration permitted by Article 34 of the ICDR Procedures. This is determined to be reasonable given the nature of the case and the conduct of Respondent.

Counsel for Claimant is directed to submit to the tribunal within 5 business days an itemization of all such costs and reasonable supporting materials. The arbitrator will promptly enter a specific amount as an award.

  1. Injunctive

The Lanham Act entitles Claimant to injunctive relief for Respondent’s violation of section 43(a) and (d). See 15 U.S.C. 1116. The arbitrator finds that Respondent is currently maintaining-and is likely to continue to maintain-websites that are violative of Claimant’s trademark rights and are designed to divert traffic to Respondent’s defamatory sites. Respondent’s actions have caused, and will likely continue to result in, irreparable harm to Claimant which cannot be accurately determined because of the nature of Respondent’s activities.

Therefore, the arbitrator enters as part of this award an order directing Respondent and its agents, including its directors, officers, and employees to cause all content found by this ruling to be defamatory or otherwise violative of Utah common law or Federal law on the internet websites registered under the following domain names­ Lasersentient.com, sentientusedlaser.com, Sentient-laser.com, Sentient-lasers.com, Sentientlasers.net, Albanylasers.ca/sentient-laser/, and www.sentientlasers.org-to be removed and sequestered in a manner that it cannot be viewed by any third-party or the general public on the aforementioned sites. They are also directed not to post to other

websites containing the matter found to be violative of Utah common law and the Lanham Act in this proceeding.

The Respondent and its agents, including its directors, officers, and employees, are permanently enjoined from directly or indirectly registering, owning, and/or operating any other domain names incorporating the name “Sentient Lasers” or any colorable imitations thereof or any name using components of the name “Sentient Lasers” in a manner that make the resulting name an apparent referent to “Sentient Lasers.”

This injunction may be enforced by proceedings to punish for contempt or otherwise.

The breach by Respondent of any of its obligations under this Final Order would give rise to irreparable harm for which monetary damages would not be an adequate remedy and in the event of such breach, Claimant, in addition to any and all other rights and remedies that may be available, shall be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction. In addition, the relevant registrars of the domain names listed above are ordered and directed to transfer each domain name registration to the owner of the infringed mark, Sentient Lasers, LLC.

Google and other search engines are ordered and directed to “deindex” the aforementioned sites so as to prevent them from appearing in any search.

So Ordered:

Dated: December 16, 2021

Arbitrator Signature:                           .           

Hon. Michael D. Zimmerman

EXHIBIT I

 

 Steven Andersen Vice President

9 Greenway Plaza, Suite 1275

Houston, TX 77046

Telephone: (832)941-5534

March 30, 2022

Via Email and Federal Express (to follow)

 

Charles Wason, JD Sentient Lasers, LLC 4838 Forestdale Drive

Suite 202

Park City, UT Utah

Via Email to: c.wason@sentientlasers.com

Benjamin Johnson, Esq.

Bennett Tueller Johnson & Deere 3165 East Millrock Drive

Suite 500

Salt Lake City, UT 84121

Via Email to: ben.johnson@btjd.com

Kamal Al-Hallak, MD

Albany Cosmetic and Laser, Inc. 6637 177 Avenue

Edmonton AL T5T 4K3 Canada

Via Email to: alhallak@ualberta.ca

Billal A. Saleem Forum Law LLP 11835 – 149 Street NW

Edmonton, AB, T5L 2J1 Canada

Via Email to: saleem@forumlaw.ca

Case Number: 01-20-0015-7701

Sentient Lasers, LLC

-vs-

Albany Cosmetic and Laser, Inc.

Dear Party Representatives,

By direction of the Arbitrator we herewith transmit to you the duly executed Final Award in the above matter. Please do not submit any further communication directly to the Arbitrator. All communication shall be directed to the ICDR only copying the other parties.

At this time, we have verified with the Arbitrator that it has submitted all requests for compensation and expenses in this matter. Accordingly, we have conducted a final reconciliation of the finances and will provide each party with a Final Statement under separate cover shortly. If a party has any unused compensation deposits, we will issue a refund check. If a party has an outstanding balance, that party will continue to receive cyclical invoices until the balance is paid. Any outstanding balances are due immediately.

Note that the financial reconciliation reflects costs as they were incurred during the course of the proceeding. Any apportionment of these costs by the Arbitrator, per Article 34 of the International Arbitration Rules, are addressed in the Final Award and will be stated as one party’s obligation to reimburse the other party for costs incurred. Any outstanding balances the parties may have with the ICDR for the costs incurred during the arbitration proceedings remain due and payable to the ICDR even after the Final Award is issued, and regardless of the Tribunal’s apportionment of these costs between the parties in the Final Award.

Pursuant to the AAA/ICDR’s current policy, the ICDR’s electronic case file will be destroyed 18 months after the date of this letter, with the exception of certain types of documents the ICDR will maintain indefinitely.

Thank you for having used the services of the ICDR, a worldwide leader in dispute resolution.

Sincerely,

/s/

Yanett Quiroz, LL. M.

Director

Direct Dial: (832)308-5626 Email: YanettQuiroz@adr.org

Encl.:

Final Award

Cc:

Hon. Michael Zimmerman (via email)

EXHIBIT J

 From: Dr. Alhallak <alhallak@ualberta.ca>

Sent: Wednesday, April 20, 2022 10:27 PM

To: Michael D. Zimmerman <mzimmerman@zjbappeals.com>; YanettQuiroz@adr.org

Cc: arbitrations@zbappeals.com; Ben Johnson <Ben.Johnson@btjd.com>; c.wason@sentientlasers.com; mzimmerman@zbappeals.com

Subject: Re: Sentient Lasers, LLC v. Albany Cosmetic and Laser, Inc. – Case 01-20-0015-7701

Dear Ms. Quiroz, I wish to start a motion for modification and vacating the award due to evident mathematical calculation as stated in Utah Uniform Arbitration Act below

78B-11-121 Change of award by arbitrator.

  • On motion to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award:
    • on any grounds stated in Subsection 78B-11-125(1)(a) or (c

78B-11-125 Modification or correction of award.

  • Upon motion made within 90 days after the movant receives notice of the award pursuant

to Section 78B-11-120 or within 90 days after the movant receives notice of a modified or corrected award pursuant to Section 78B-11-121, the court shall modify or correct the award if:

  • there was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award

Sincerely Dr. Alhallak

On Wed, Mar 30, 2022 at 12:12 PM <YanettQuiroz@adr.org> wrote: Hello,

Please review the attached correspondence regarding the above-referenced case.

Feel free to contact me with any questions, comments or concerns you have related to this matter.

Thank you.

ICDR Yanett Quiroz Director

American Arbitration Association

T: 832 308 5626 E: YanettQuiroz@adr.org<mailto:YanettQuiroz@adr.org>

9 Greenway Plaza, Suite 1275, Houston, TX 77046

The information in this transmittal (including attachments, if any) is privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. If you have received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you.

EXHIBIT K

 From: Charlie Wason <c.wason@sentientlasers.com>

Sent: Thursday, April 21, 2022 9:05 AM

To: Dr. Alhallak <alhallak@ualberta.ca>; YanettQuiroz@adr.org

Cc: Ben Johnson <Ben.Johnson@btjd.com>

Subject: RE: Sentient Lasers, LLC v. Albany Cosmetic and Laser, Inc. – Case 01-20-0015-7701 Dear Ms. Quiroz –

I have removed the Arbitrator from this communication.

Sentient consents to an Amendment of the Final Award dated March 28, 2002 (attached) to eliminated the $47,142 ($19,350 ICDR Fees & $27,792 expenses of the Arbitrator), added to the Original Award.

Dr. Al-Hallak is correct, the ICDR Fees and the Expenses of the Arbitrator were included in the Original Award as part of the $80, 121.80 of compensatory damages awarded for the Utah common law claims.

Respectfully,

Charles W. Wason, JD

Vice President – Legal and Administration

P (855) 819-3781 Ext. 3202

E c.wason@sentientlasers.com

W http://www.sentientlasers.com/

 
  

 Big sale:Visit our online store

Confidentiality & E-SIG policy Click

From: Dr. Alhallak <alhallak@ualberta.ca>

Sent: Wednesday, April 20, 2022 10:27 PM

To: Michael D. Zimmerman <mzimmerman@zjbappeals.com>; YanettQuiroz@adr.org

Cc: arbitrations@zbappeals.com; ben.johnson@btjd.com; Charlie Wason <c.wason@sentientlasers.com>; mzimmerman@zbappeals.com

Subject: Re: Sentient Lasers, LLC v. Albany Cosmetic and Laser, Inc. – Case 01-20-0015-7701

Dear Ms. Quiroz, I wish to start a motion for modification and vacating the award due to evident mathematical calculation as stated in Utah Uniform Arbitration Act below

78B-11-121 Change of award by arbitrator.

  • On motion to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award:
    • on any grounds stated in Subsection 78B-11-125(1)(a) or (c

78B-11-125 Modification or correction of award.

  • Upon motion made within 90 days after the movant receives notice of the award pursuant

to Section 78B-11-120 or within 90 days after the movant receives notice of a modified or corrected award pursuant to Section 78B-11-121, the court shall modify or correct the award if:

  • there was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award

Sincerely Dr. Alhallak

On Wed, Mar 30, 2022 at 12:12 PM <YanettQuiroz@adr.org> wrote: Hello,

Please review the attached correspondence regarding the above-referenced case.

Feel free to contact me with any questions, comments or concerns you have related to this matter.

Thank you.

ICDR Yanett Quiroz Director

American Arbitration Association

The information in this transmittal (including attachments, if any) is privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. If you have received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you.

EXHIBIT L

 From: ICDR Yanett Quiroz <YanettQuiroz@adr.org>

Sent: Thursday, April 21, 2022 6:08 PM

To: Charlie Wason <c.wason@sentientlasers.com>; Dr. Alhallak <alhallak@ualberta.ca>

Cc: Ben Johnson <Ben.Johnson@btjd.com>

Subject: RE: Sentient Lasers, LLC v. Albany Cosmetic and Laser, Inc. – Case 01-20-0015-7701 Dear Parties,

I confirm receipt of your communications of today’s date.

Respondent is advised to submit its request as provided in Article 33 of the International Arbitration Rules, and we will proceed accordingly.

If the parties consider that today’s communications shall be submitted for that purposes, please confirm. Best regards,

Yanett.

ICDR Yanett Quiroz Director

 

American Arbitration Association

T: 832 308 5626 E: YanettQuiroz@adr.org

9 Greenway Plaza, Suite 1275, Houston, TX 77046 adr.org | icdr.org | aaamediation.org

The information in this transmittal (including attachments, if any) is privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. If you have received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you.

From: Charlie Wason <c.wason@sentientlasers.com>

Sent: Thursday, April 21, 2022 10:05 AM

To: Dr. Alhallak <alhallak@ualberta.ca>; ICDR Yanett Quiroz <YanettQuiroz@adr.org>

Cc: ben.johnson@btjd.com

Subject: RE: Sentient Lasers, LLC v. Albany Cosmetic and Laser, Inc. – Case 01-20-0015-7701

*** External E-Mail – Use Caution ***

 Dear Ms. Quiroz –

I have removed the Arbitrator from this communication.

Sentient consents to an Amendment of the Final Award dated March 28, 2002 (attached) to eliminated the $47,142 ($19,350 ICDR Fees & $27,792 expenses of the Arbitrator), added to the Original Award.

Dr. Al-Hallak is correct, the ICDR Fees and the Expenses of the Arbitrator were included in the Original Award as part of the $80, 121.80 of compensatory damages awarded for the Utah common law claims.

Respectfully,

Charles W. Wason, JD

Vice President – Legal and Administration

P (855) 819-3781 Ext. 3202

E c.wason@sentientlasers.com

W http://www.sentientlasers.com/

Big sale:Visit our online store

Confidentiality & E-SIG policy Click

From: Dr. Alhallak <alhallak@ualberta.ca>

Sent: Wednesday, April 20, 2022 10:27 PM

To: Michael D. Zimmerman <mzimmerman@zjbappeals.com>; YanettQuiroz@adr.org

Cc: arbitrations@zbappeals.com; ben.johnson@btjd.com; Charlie Wason <c.wason@sentientlasers.com>; mzimmerman@zbappeals.com

Subject: Re: Sentient Lasers, LLC v. Albany Cosmetic and Laser, Inc. – Case 01-20-0015-7701

Dear Ms. Quiroz, I wish to start a motion for modification and vacating the award due to evident mathematical calculation as stated in Utah Uniform Arbitration Act below

78B-11-121 Change of award by arbitrator.

  • On motion to an arbitrator by a party to an arbitration proceeding, the arbitrator may modify or correct an award:
    • on any grounds stated in Subsection 78B-11-125(1)(a) or (c

78B-11-125 Modification or correction of award.

  • Upon motion made within 90 days after the movant receives notice of the award pursuant

to Section 78B-11-120 or within 90 days after the movant receives notice of a modified or corrected award pursuant to Section 78B-11-121, the court shall modify or correct the award if:

  • there was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award

Sincerely Dr. Alhallak

On Wed, Mar 30, 2022 at 12:12 PM <YanettQuiroz@adr.org> wrote: Hello,

Please review the attached correspondence regarding the above-referenced case.

Feel free to contact me with any questions, comments or concerns you have related to this matter.

The information in this transmittal (including attachments, if any) is privileged and/or confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this transmittal is prohibited except by or on behalf of the intended recipient. If you have received this transmittal in error, please notify me immediately by reply email and destroy all copies of the transmittal. Thank you.

NOTICE: This e-mail contains information that may be confidential. If you are not the intended recipient, any disclosure or other use of this e-mail or the information contained herein or attached hereto may be unlawful and is strictly prohibited. If you have received this e-mail in error, please notify the sender immediately and delete this e-mail without reading, printing, copying or forwarding it to anyone. Thank you for your kind collaboration.

EXHIBIT M

 Motion under Article 33

 When a contract is finalized, both parties agree upon certain terms and conditions that they must abide by. One of these terms may be the naming of a respondent in the arbitration agreement. The contact is between Sentient Lasers LLC and Albany Cosmetic and Laser Clinic at 6637 177th Edmonton AB T5T4K3. To this issue, the subject sales agreement clearly indicates that Sentient Lasers, LLC contracted with “Albany Cosmetic and Laser Clinic” not with “Albany Cosmetic and Laser, Inc.,” which is the party named in the Notice of Arbitration.

See Contract, Exhibit 1. This error is compounded by the fact there is no legal entity in Canada known as Albany Cosmetic and Laser, Inc.

See Contract, Exhibit 1. This error is compounded by the fact there is no legal entity in Canada known as Albany Cosmetic and Laser, Inc.

In his final award, the arbitrator calculated damages to be 700,000 based on 15 U.S. Code § 1125, a maximum of 100,000 per disputed domain name. However, some have argued that section 1125(d)(1) of this title is only applicable if there is bad faith intent to profit from the trademark in question.

43(d) of the Lanham Act, 15 U.S.C. 1117(d), is inapplicable to the infringing conduct at issue in this case. The statute prohibits the registration of a mark that is “deceptively misdescriptive” of the goods or services for which it is used. In order to prevail on a claim under this section, a plaintiff must show that (1) the mark is actually deceptive; (2) the deception is material, in that it is likely to affect consumer purchasing decisions; and (3) the deceived consumers are reasonably assumed to be unaware of the deception. In this case, the infringing conduct did not meet any of these three requirements. Accordingly, 43(d) is inapplicable and Respondent cannot be held liable under that section.

As stated by 15 U.S. Code § 1117, in assessing damages for infringement, the court may award any amount above actual damages, up to a maximum of three times the actual damages. However, in the case of sentient lasers, the company was unable to prove that they had suffered any actual damage as a result of infringing activities conducted by their competitor as stated by the arbitrator in Order NO.7 page 2 (Exhibit 2). Given this lack of evidence, the plaintiffs did not qualify for considerable compensation.

AlbanyLaser.ca/sentient-laser is a URL and not a domain. As anyone who has ever set up a website knows, a domain is essential for getting your site online. A domain is simply a web address that tells visitors where to find your site. Without a domain, your site would be inaccessible to anyone outside of your immediate network. AlbanyLaser.ca/sentient-laser is not a domain, but rather a URL. A URL is a specific page within a website, and it cannot be used as a standalone web address. In order to visit the AlbanyLaser.ca/sentient-laser page, visitors must first navigate to the AlbanyLaser.ca domain and then type in the /sentient-laser URL.

Based on the traffic analysis data, it is clear that sentientlasers.com has seen a significant growth in visitor numbers over 2020-2021 and reach over 10K visit a month (Exhibit 3). Moreover, the disputed domain has only 3 unique visitors to this website between 2020 and 2021, with less than 25 visits in total, which represent 0.03% of the total visitor (Exhibit 4).

The low level of engagement with disputed domains , should be considered as evidence of the non-profit nature of the domains. Moreover, Order No. 6 was challenged by the respondent and reverted. The disputed domain ownership was returned to the respondent.

The arbitrator made a mistake in his award by including $47,142.00 as a separate expense. This amount was already included in the final award of $80,121.80. The arbitrator should have noted this when he made his award. This was confirmed by the plaintiff by email on April 21 (Exhibit 5)

Most of these errors could be attributed to the fact that honorable Zimmerman is using his iPhone to review the case, make calculation and corresponds with us (Exhibit 6).

Sincerely

Dr. Alhallak, Ph.D.


Benjamin D. Johnson (10275)                                       

Bennett Tueller Johnson & Deere            

3165 East Millrock Drive, Suite 500

Salt Lake City, Utah 84121

Telephone: (801) 438-2000

Email: ben.johnson@btjd.com

 

Attorney for Respondent

________________________________________________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

SENTIENT LASERS, LLC,

          Petitioner,

vs.

ALBANY COSMETIC AND LASER, INC.,

Respondent.

MEMORANDUM IN OPPOSITION TO SENTIENT LASER’S MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION TO CONFIRM ARBITRAL AWARD

Case No. 2:21-CV-00767

Judge Howard C. Nielson, Jr.

 

          Respondent, by its counsel, and pursuant to Rule 7 of the Federal Rules of Civil Procedure and DUCivR 7-1, hereby submits the following Memorandum in Opposition to Petitioner Sentient Lasers, LLC’s (“Petitioner”) Motion for Leave to File Second Amended Petition to Confirm Arbitral Award (Petitioner’s motion shall hereinafter be referred to as the “Motion”). The Motion should be denied because it is unjustified and prejudicial.

PREFERRED DISPOSITION AND GROUNDS

          This case is a comedy of errors. From the issuance of the notice of arbitration to the entering of the final arbitral award, Petitioner has never managed to name the correct party in any of the relevant proceedings. Petitioner’s failures are exemplified by its current attempt to name multiple separate entities with similar names as parties to this case, hoping that one of them is the “right” one. Petitioner’s imprecision has resulted in confusion, wasted resources, and an unenforceable arbitral award.

          As a result of Petitioner’s errors, the Court should deny the Motion as unjustified or prejudicial. The Motion is not justified because were the Court to grant it, an award could be issued against a party not listed in any agreement, arbitration notice, or final arbitral award. Additionally, the Motion will unduly prejudice Respondent because, as stated, the identified Respondents are not parties to any agreement, arbitration notice, or arbitral award.

RELEVANT FACTS

  1. Petitioner sold “Albany Cosmetic and Laser Clinic” medical spa machines and related equipment pursuant to an agreement signed on April 30, 2019 (the “Agreement”). A true and correct copy of the Agreement is attached hereto as Exhibit A.
  2. The Agreement clearly lists the parties to the Agreement as “Sentient Lasers, LLC” and “Albany Cosmetic and Laser Clinic.” See id.
  3. After a dispute arose, Petitioner—through the International Centre for Dispute Resolution (the “ICDR”)—sent a notice of arbitration to “Albany Cosmetic and Laser, Inc.” See Notice of Arbitration. A true and correct copy of the Notice of Arbitration is attached hereto as Exhibit B.
  4. On December 16, 2020, the ICDR issued an Interim Award of Emergency Relief. See Interim Award of Emergency Relief (the “Interim Award”). A true and correct copy of the Interim Award is attached hereto as Exhibit C.
  5. The Interim Award listed “Albany Cosmetic & Laser Inc.” as a party to the Interim Award. See id.
  6. On February 2, 2021, the ICDR issued its Disposition of Application or Interpretation or Correction of Interim Award (the “Correction of Interim Award”). See Correction of Interim Award. A true and correct copy of the Correction of Interim Award is attached hereto as Exhibit D.
  7. However, the Correction of Interim Award was expressly limited to the interim proceedings: “The name of the Respondent shall be corrected on the caption of the Interim Award and deemed the same throughout the Interim Award to read and refer to: Albany Cosmetic and Laser Center, Inc.” See id. (emphasis added).
  8. On December 30, 2021—before a final arbitral award had even been entered—Petitioner filed its Petition to Confirm Arbitral Award and Enter Judgment in Conformance with Award (the “Petition to Confirm”). See Petition to Confirm, Docket No. 2 (on file with Court).
  9. In its Petition to Confirm, Petitioner listed “Albany Cosmetic and Laser, Inc.” as Respondent. See id.
  10. On March 28, 2022, the ICDR purported to issue its final arbitral award (the “Final Award”), in which it again listed “Albany Cosmetic and Laser, Inc.” as Respondent. See Final Award. A true and correct copy of the Final Award is attached hereto as Exhibit E.
  11. On April 14, 2022, Petitioner filed its Amended Petition to Confirm Arbitral Award and Enter Judgment in Conformance with Award (the “First Amended Petition”). See Amended Petition to Confirm Arbitral Award and Enter Judgment in Conformance with Award, Docket No. 13 (on file with Court).
  12. In its First Amended Petition, Petitioner listed “Albany Cosmetic and Laser, Inc. a/k/a/ Albany Cosmetic and Laser Clinic” as Respondent. See id.
  13. On April 27, 2022, Respondent filed its Answer to the Amended Petition to Confirm Arbitral Award and Enter Judgment in Conformance with Award (the “Answer”). See Response to Motion to Amend, Docket No. 15 (on file with Court).
  14. On April 27, 2022, Respondent filed its Motion to Vacate Arbitration Award. See Motion to Vacate Arbitration Award, Docket No. 16 (on file with Court).
  15. On May 10, 2022, the ICDR issued a corrected final award (the “Corrected Final Award”), in which it corrected the amount of the arbitration judgment and purported to add “Albany Cosmetic and Laser Center, Inc.” as a party. See Exhibit C of Motion for Leave to File Second Amended Petition to Confirm Arbitral Award, Docket No. 18 (on file with Court).
  16. On May 18, 2022, Petitioner filed its Motion for Leave to File Second Amended Petition to Confirm Arbitral Award. See Motion for Leave to File Second Amended Petition to Confirm Arbitral Award, Docket No. 18 (one file with Court).

ARGUMENT

  1. The Motion Should Be Denied Because the Requested Amendment is Unjustified and Prejudicial.

 Trial courts exercise broad discretion in deciding motions to amend under rule 15. See Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009). Nevertheless, where a motion to amend is unjustified or prejudicial, a trial court may deny that motion. See, e.g., Fletcher v. United States, 801 F. App’x 640, 644 (10th Cir. 2020); Chief v. W. Valley City, No. 2:11-CV-643 TS, 2013 WL 5308109, at *2 (D. Utah Sept. 20, 2013). Because the Motion is unjustified and prejudicial, it should be denied.

  1. Petitioner’s Motion to Amend is Unjustified

Petitioner’s Motion is unjustified in that it attempts to incorporate parties into the case who were not named in the Agreement, the Notice of Arbitration, and/or the Corrected Final Award. For example, the Agreement lists only “Albany Cosmetic and Laser Clinic,” yet no notice of arbitration was served on Albany Cosmetic and Laser Clinic. In the Notice of Arbitration, the ICDR identifies only “Albany Cosmetic and Laser, Inc.,” yet Albany Cosmetic and Laser, Inc. is not referenced in the Agreement. And now, Petitioner seeks to confirm the arbitral award against “Albany Cosmetic and Laser Center” and “Albany Cosmetic and Laser Center, Inc.,” but these parties were not listed in the Agreement., and no notice of arbitration was served on any party with those names.   

Petitioner contends that “the misnaming of Respondent is harmless” because the Respondent’s correct name has “been used in other documents.” See Motion for Leave to File Second Amended Petition to Confirm Arbitral Award (the “Second Amended Petition”) at 3, Docket No. 18 (on file with Court). The “other documents” that Petitioner refers to is the Correction of the Interim Award. However, the Correction of the Interim Award that names “Albany Cosmetic and Laser Center, Inc.” as Respondent is expressly applicable only “throughout the Interim Award.” See Correction of the Interim Award, Ex. D. It does not resolve misnaming issues through the remainder of the arbitration proceedings.

Further, the ICDR’s rules and procedures clearly state: “The party initiating arbitration (“Claimant”) shall, in compliance with Article 10, give written Notice of Arbitration to the Administrator and at the same time to the party against whom a claim is being made (“Respondent”).” See International Dispute Resolutions Procedures at 9. A true copy of the International Dispute Resolutions Procedures is attached hereto as Exhibit F. The only respondent that Petitioner named in its Notice of Arbitration is “Albany Cosmetic and Laser, Inc.,” which admittedly is an entity that does not exist. Regardless, Petitioner should not now be able to confirm an award against “Albany Cosmetic and Laser Center” or “Albany Cosmetic and Laser Center, Inc.,” which are not identified in the Agreement or served with a notice of arbitration.

Petitioner seeks to remedy this mistake by amending its petition to add “Albany Cosmetic and Laser Center, and Albany Cosmetic and Laser Center, Inc.” However, the ICDR rules and procedures also state that “A party wishing to join an additional party to the arbitration shall submit to the Administrator a Notice of Arbitration against the additional party. No additional party may be joined after the appointment of any arbitrator, unless all parties, including the additional party, otherwise agree.” See International Dispute Resolutions Procedures at 17, Ex. F. Petitioner never sent any additional notices of arbitration to the parties it now seeks to add to this case. Additionally, none of these parties ever agreed to be added to the case, and neither are they identified in the subject Agreement. Therefore, the Motion should be denied.  

  1. Petitioner’s Motion to Amend is Unduly Prejudicial

As explained above, Albany Cosmetic and Laser Center and Albany Cosmetic and Laser Center, Inc. are not parties under the Agreement or the Notice of Arbitration. Permitting Petitioner to add these parties to this case would be unduly prejudicial because Petitioner never supplied them with proper notice of the arbitration proceedings. To enforce an award against an entity that was neither identified in the Agreement nor noticed would be extremely prejudicial to that party. Therefore, the Motion should be denied.

CONCLUSION

          For the foregoing reasons, the Amendment that Petitioner now seeks is unjustified and prejudicial. The Court should deny Petitioner’s attempt to enforce an arbitral award against an entity that never received proper notice and was never correctly named. The Court should, therefore, should deny the Motion.

          DATED this 31st day of May 2022

Bennett Tueller Johnson & Deere

/s/ Benjamin D. Johnson

Benjamin D. Johnson

Attorney for Respondent

 CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of May 2022, I caused a true and correct copy

of the foregoing OPPOSITION TO SENTIENT LASER’S MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION TO CONFIRM ARBITRAL AWARD to be served by Notice of Electronic Filing upon the following:

Adam D. Wahlquist (12269)

Jacob A. Green (15146)

Kirton McConkie

Thanksgiving Park Four

2600 W. Executive Pkwy, #400

Lehi, UT 84043

(801) 426-2100

awahlguist@kmclaw.com; jgreen@kmclaw.com

Attorneys for Petitioner Sentient Lasers, LLC

/s/ Benjamin D. Johnson

 

Adam D. Wahlquist (12269) Jacob A. Green (15146) KIRTON | MCCONKIE

Thanksgiving Park Four

2600 W. Executive Pkwy, #400

Lehi, UT 84043

(801) 426-2100

awahlquist@kmclaw.com jgreen@kmclaw.com

Attorney for Petitioner Sentient Lasers, LLC

 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

 

SENTIENT LASERS, LLC,

 

Petitioner,

 

vs.

 

ALBANY COSMETIC AND LASER, INC.

a/k/a Albany Cosmetic and Laser Clinic,

 

Respondent.

 

REPLY MEMORANDUM SUPPORTING MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION TO CONFIRM ARBITRAL AWARD

 

Case No. 2:21-cv-00767 Judge Howard C. Nielson, Jr.

 

Petitioner Sentient Lasers, LLC (“Sentient”), by and through counsel, and pursuant to Rule 15 of the Federal Rules of Civil Procedure and DUCivR 7-1(a) and 15-1, hereby submits this Reply Memorandum Supporting Motion for Leave to File Second Amended Petition to Confirm Arbitral Award.

INTRODUCTION

 Leave to amend is to be “freely” granted. Here, Sentient is merely seeking to amend its Petition to bring subsequent corrections to the Final Award before the Court. The bases Albany sets forth in its opposition do not relate to this very narrow issue. Sentient is entitled to seek confirmation of an arbitral award—an award which is given “maximum” deference in Utah courts. The present motion merely seeks to ensure that Final Award, as corrected after the Amended

 

Petition was filed, is before the Court. After the updated petition is on file, Albany will then be entitled to pursue its arguments regarding whether to vacate the arbitration award.

Regardless, the singular issue raised by Albany—if it is even relevant at this juncture—is resolved by the misnomer rule. Albany has always had notice of the dispute and the arbitration. Albany has also been actively involved, through counsel, in these attempts to procure a correct award. For Albany to now suggest that the process was somehow tainted rings hollow and does not provide the Court a basis to deny Sentient the ability to file a corrected petition.

Accordingly, the Court should freely grant Sentient’s Motion and allow it to proceed with filing its Second Amended Petition to Confirm Arbitral Award.

RESPONSE TO “RELEVANT FACTS”

 [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: The contact for Albany per this “Exhibit A” was Kamal Alhallak, email kalhallak@albanylaser.ca. Mr. Alhallak, the “Director” of Albany, has always been the point of

contact for Albany and has always been contacted through his email address. In any event, this is irrelevant to the Motion which merely seeks to file an updated petition to confirm an arbitration award.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: See response to Paragraph 1, above.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

RESPONSE: The referenced “Notice of Arbitration” clearly lists Mr. Alhallak as a person to be notified for Albany. His email is listed as: kalhallak@albanylaser.ca, which is the very same

 

email listed in “Exhibit A” to the opposition. In any event, this is irrelevant to the Motion which merely seeks to file an updated petition to confirm an arbitration award.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: The Interim Award attached as “Exhibit C” to the Opposition (with no title page), states in relevant part:

  1. Email notice of the filing of the Application, and the date time and means of the Preliminary Hearing was served on Albany using the following email address for Dr. Kamal Alhallak, Kalhallak@albanylaser.ca, which was provided for within the Sales Contract. In addition, notice was also served on the following individuals associated with Albany:

Dr. Tomi M.D.: westoliverclinic@gmail.com Dr. Abdulhafid M.D.: abdulhaf@ualberta.ca

 

  1. Out of an abundance of caution, and in the interests of ensuring Albany was provided the opportunity to participate in these emergency proceedings, notice of the briefing schedule, the Application and the Sentient on the following mailing address for Albany, provided in the Sales Contract:

Albany Cosmetics and Laser Clinic 6637 177st

Edmonton, Alberta T5T4K3

 

  1. Proofs of service were submitted by
  1. The Emergency Arbitrator is satisfied that the Parties had ample notice and opportunity to participate in these In addition to the proofs of service provided to the Arbitrator, the e-mail communication from, Dr. Kamal Alhallak, who’s email signature describes his role as “Director of Albany Cosmetic and Laser Centre”, confirms that he was receiving emails regarding this matter and was aware of this proceeding. The email further confirms that Albany, via its Director, had effectively chosen not to participate.

Memo. Opp., Exh. C., at Pg. 7. Sentient also sent a demand letter, together with the Notice of Arbitration,            to  Albany  at     the     following     email   addresses:        info@albanylaser.ca;

abdulhaf@ualberta.ca; kalhallak@albanylaser.ca; and westoliverclinic@gmail.com. See Demand

 

Letter to Albany, attached hereto as “Exhibit 3.” In any event, this is irrelevant to the Motion which merely seeks to file an updated petition to confirm an arbitration award.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: The Interim Award is moot. Sentient is seeking to confirm the Corrected Final Award. Accordingly, this fact is irrelevant.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: See response to paragraph 6, above.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None. In any event, this is irrelevant where a Corrected Final Award has been issued.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: The Final Award is moot. Sentient is seeking to confirm the Corrected Final Award which the Parties jointly requested. Accordingly, this fact is irrelevant.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None. Furthermore, and pursuant to the misnomer rule discussed below, Sentient has not “add[ed]” any parties as Defendants. Albany has always been on notice of the arbitration proceedings, and these proceedings, through its “Director,” Mr. Alhallak and through counsel.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None.

 

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: The referenced “Corrected Final Award” was requested by Sentient and

 

Albany (which Albany now opposes). Indeed, The Honorable Michael D. Zimmerman stated in the Corrected Final Award: “Claimant Sentient has agreed in correspondence with Respondent Albany and separately in its response to the Application for Interpretation or Correction to this adjustment of the amount of the award.” Exh C. to Motion. The Corrected Final Award also stated: “Any single document’s misnaming of the Respondent is harmless as the ICDR and all parties and

the arbitrators involved in this matter have used the correct name of Respondent in other

 

documents.” Id. Additionally, Albany has always been on notice of the arbitration proceedings, and these proceedings, through its “Director,” Mr. Alhallak.

  1. [This enumerated paragraph is incorporated by reference for the sake of

See FED. R. CIV. P. 10(c).]

 

RESPONSE: None.

 

ARGUMENT

 LEAVE TO AMEND SHOULD BE “FREELY” GRANTED TO ENABLE SENTIENT TO CONFIRM THE LATEST OPERATIVE ARBITRATION AWARD

 “The court should freely give leave [to amend] when justice so requires.” FED. R. CIV. P.

 

  1. “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to pursue that relief.” Brigham Young Univ. v. Pfizer, Inc., No. 2:06-CV-890 TS BCW, 2010 WL 2382593, at *1 (D. Utah June 14, 2010). Here, Sentient seeks leave to amend a petition to confirm an updated arbitration award. “The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘Convention’) … [allows] parties [to] seek recognition and enforcement of foreign arbitral awards in the United States.” Asphalt Trader Ltd. v. Taryn Cap. Energy, L.L.C., No. 1:16-CV-00054-JNP, 2016 WL 5400389, at *2 (D. Utah Sept. 27, 2016). Thus, Sentient’s requested relief is a “proper subject of relief” and it ought to be afforded the opportunity to pursue that relief.
  2. The award at issue in the most recent petition is no longer operative. See Amended Petition to Confirm Arbitral Award (CM/ECF No. 13, filed April 14, 2022). Sentient is unable to seek confirmation of an award that is no longer operative. Albany has not disputed that the Corrected Final Award is the operative award, nor that Albany and Sentient jointly requested this Corrected Final Award to address a miscalculation in costs (in fact, reducing the costs) owed by Albany.
  3. Therefore, Sentient is required—and should be “freely” given leave—to update its petition to reflect and confirm this newly obtained and operative Corrected Final Award.

II.                ALBANY’S SINGULAR ARGUMENT AGAINST AMENDMENT IS RESOVLED BY THE MISNOMER RULE

 

Albany’s only argument in support of its position that the amendment is “unjustified” and “prejudicial” relates to its name. Specifically, Albany argues the Motion should be denied because it “attempts to incorporate parties into the case who were not named in the Agreement, the Notice of Arbitration, and/or the Corrected Final Award.” Memo. Opp., at 5. The arbitrator stated that this is a non-issue: “Any single document’s misnaming of the Respondent is harmless as the ICDR and all parties and the arbitrators involved in this matter have used the correct name of Respondent in other documents.” See Response to Statement of Relevant Fact (“SOF”) No. 15. This is not Sentient’s “content[ion]”, it is the arbitrator’s finding. This alone is determinative.

But if it is not, this issue is resolved by the misnomer rule. Albany’s argument, taken literally, is that it should be entitled to escape its obligations under the Corrected Final Award because it listed a phony entity in the underlying Agreement, attached as “Exhibit A” to Albany’s opposition.1 This is not persuasive nor determinative of the Motion before the Court. “Corrections of misnomers are permitted under Rule 15(c). … [W]here the new and old parties have such an identity of interest [] it can be assumed that [amendment] will not prejudice the new defendant. … This exception has been widely accepted by the courts.” Graves v. Gen. Ins. Corp., 412 F.2d 583, 584–85 (10th Cir. 1969). “[T]his court is committed to the general proposition that it will not allow1 

The Agreement lists “Albany Cosmetic and Laser Clinic” which Albany signed through its Director, Mr. Alhallak. Yet Mr. Alhallak prepared a declaration, conceding the misnomer: “I run a medical spa clinic known as Albany Cosmetic and Laser Center which Petitioner refers to as Albany Cosmetic and Laser Clinic.” See Declaration of Mohammed Kamal Alhallak, attached to Motion to Vacate Arbitration Award as Exhibit A (CM/ECF No. 16-1, filed April 27, 2022).

 

technicalities to defeat the proper administration of justice … and will allow misnomers to be amended.” Archuleta v. Duffy’s Inc., 471 F.2d 33, 35 (10th Cir. 1973).

One Utah case dealt with a similar situation, where one party—much like Albany—argued that the “case must be dismissed as a matter of law because Hornady has sued a non-existent company.” Hornady Mfg. Co. v. Doubletap Ammunition, Inc., No. 2:11-CV-18 TS, 2013 WL 1620023, at *3 (D. Utah Apr. 15, 2013). The Court disagreed and held as follows:

Whether asserted against Double Tap Ammunition, Inc., or Doubletap, Inc., this suit involves the same occurrence—the alleged infringement of Hornady’s TAP mark. Doubletap has been on notice of the claims against it since the inception of the case and, indeed, has appeared and defended in this matter as if properly sued. Thus, Doubletap knew, or should have known, that but for a mistake in identity the action would have been brought against it. For the same reasons, the Court finds that Doubletap will not suffer any prejudice by being properly named in this suit.

 

Based on the foregoing, the Court finds that Hornady’s failure to name the proper party in its Complaint resulted from a misnomer and Hornady meets all the elements necessary for amendment and relation back under rule 15(c). It follows that justice requires that Hornady be granted leave to amend.

 

Id.

 Similar to Hornady, Albany has been notified of every stage of this arbitration and confirmation process. Indeed, the arbitrator stated: “The Emergency Arbitrator is satisfied that the Parties had ample notice and opportunity to participate in these proceedings. In addition to the proofs of service provided to the Arbitrator, the e-mail communication from, Dr. Kamal Alhallak, who’s email signature describes his role as ‘Director of Albany Cosmetic and Laser Centre’, confirms that he was receiving emails regarding this matter and was aware of this proceeding. The email further confirms that Albany, via its Director, had effectively chosen not to participate.” See Response to SOF No. 5.

This is often determinative of misnomer issues. “[W]hen plaintiff merely misdescribes defendant and serves the party really intended to be named in the complaint, that party certainly

 

has knowledge of the misnomer and the … rule has been satisfied. Similarly, when plaintiff names an incorrect party but serves the person attempted to be sued, the latter is considered to have notice of plaintiff’s mistake and the amendment will qualify under Rule 15(c).” Archuleta v. Duffy’s Inc., 471 F.2d 33, 35 (10th Cir. 1973) (citation omitted). For Albany to decry “unfairness” and “prejudice” at this juncture—after it has had every opportunity to defend itself and after it has been notified of these proceedings—is not persuasive. The arbitrator detailed all efforts it made to notify Albany, including emailing multiple individuals at Albany such as the Director of Albany, Mr. Alhallak, and even mailing under different names. See Response to SOF No. 5.

Contrary to Albany’s position, Sentient is not seeking to “join” or “add” any additional parties. See, e.g., Wilcox v. Geneva Rock Corp., 911 P.2d 367, 370 (Utah 1996) (noting misnomer cases do not result in “a substitution or addition of new parties”); see also Penrose v. Ross, 2003 UT App 157, ¶ 12, 71 P.3d 631, 635 (“[I]n misnomer cases, the correction of a party name is a formal change, rather than a substantial change; thus, amending the complaint does not affect the rights of the added party, and fairly relates back to the original filing.”). Sentient merely seeks to file a petition to confirm the correct (and operative) arbitration award issued against Albany. Doing so will not prejudice Albany and is certainly not unfair.

CONCLUSION

 

For each of the foregoing reasons, Sentient requests the Court GRANT its Motion and allow it to file the Second Amended Petition to Confirm Arbitral Award.

DATED this 15th day of June, 2022.

 

KIRTON MCCONKIE

 By: /s/ Adam D. Wahlquist                                  

Adam D. Wahlquist Jacob A. Green

Attorneys for Petitioner

 

 

CERTIFICATE OF SERVICE

 

I hereby certify that on this 15th day of June 2022, I caused a true and correct copy of the foregoing REPLY MEMORANDUM SUPPORTING MOTION FOR LEAVE TO FILE SECOND AMENDED PETITION TO CONFIRM ARBITRAL AWARD to be served by

Notice of Electronic Filing upon the following:

 

Benjamin D. Johnson (10275)

BENNETT TUELLER JOHNSON & DEERE

3165 E. Millrock Drive, Ste. 500 Salt Lake City, UT8412 Ben.johnson@btjd.com

 

/s/ Meggan Day                      

Disclaimer: This is a personal opinion on the business transaction between Sentient Lasers and Albany Cosmetic and Laser clinic. I want to share my customer experience to communicate my frustration and dissatisfaction. I have no intention of defaming Sentient Laser and strongly suggest you contact Mr. Charlie Wason <c.wason@sentientlasers.com> from Sentient lasers for their feedback and to get their side of the story. 

The post is a description of the legal battle between Utah’s Sentient Lasers LLC and Edmonton’s Albany Cosmetic and Laser Centre. The partnership began in 2019 when Albany Cosmetic and Laser Clinic in Edmonton and Sentient Lasers in Utah signed a contract to purchase a refurbished Ulthera and CoolSculpting machine. Buying refurbished machines from sentient lasers in Utah is a decision that I regret and I wish to spare anyone else the same agony.

 

 April 26, 2019I signed a contract to buy buy a refurbished CoolSculpting and Ulthera from Sentient Lasers in Utah. It is clear to on the contract that the downpayment is fully refundable and the price include one-year warranty. Please check the full contract here
 May 1st, 2019Albany Paid 5000 as a down payment to  The invoice is attached here. It shows clearly that we had one-year warranty on both machines
 June 24, 2019 

Medi-One refused to fund the transction as per Marie Mckend email:  Good Morning, Please note that Dr. Alhallak’s lease approval is being cancelled due to the inability to finalize the lease. We have to remove the file from our queue as it will not fund. Sorry we were unable to finalize this and meet everyone’s requirements.

Regards,
Medi-One Financial

 June 24, 2019 

Chris Cella Refused to cancel the transaction or refund the deposit as per his email:

Marie: That simply makes no sense. I’ve been in contact with Meridian One Capital. I spoke with Desiree on Thursday the 13th. Per my conversation with him he was supposed to send me an email with what he can issue as a guarantee to pay, additionally requests for me to respond back with information on our company. Apparently, the bank was having a hard time finding information about Sentient Lasers which has to be a mistake. 

  June 25, 2019 

Mr. Cella refused my request to cancel the transaction as per Chris Cella email: You are overreacting. Please call me. It’s Wednesday the 25th. Lasers cannot deliver in 3 days. I can get you a tracking
number and the estimated delivery date. I just telling you the truth about when the lasers can deliver. I just letting know
the truth. Please call me back.

 

 Nov 11, 2019

I discovered that every Coolsculping handpiece was broken and glued. I sent an email to Eric Graham in Sentient Lasers. I recieved the following email from Joseph Walston:

Dr. Alhallak, Per the terms of your agreement, you have 48 hours to inspect the machine for shipping damage at the time of arrival and an additional 30-day warranty on anything that was shipped to show you we stand behind our work. The machine was delivered on 7/8/19 and reaching out in November is far outside the 30 day warranty period. We would be happy to evaluate the handpiece if you want to work with Eric to get it shipped back in, but unfortunately, your warranty period is expired and this will have to come in as an evaluation. Thank you,

 

  
  
  
  
  

Sentient Laser Contract

Sentient lasers’ contract reflects bad faith and the level of future customer service you will receive. Here are some key points that you need to pay attention to
1- Sentient laser contract mentions clearly that they have limited liability and they are selling the machines AS IS.
This means that you do not have the right to dispute the condition of the machine once you recieve it.
2- Arbitration is mantodary with sentient lasers, so you do not have the right to take them to court or even to post a bad review about them. Moreover hey are the only party that have the right to choose the aribtrator and they are in control of the whole procedure with the ICDR
3- Sentient Lasers are not a licensed reseller for Tradename. Therefore, your business will have no right to advertise or even offer the service under the same name. For example, if you pay an Ulthera, or Coolsculpting machine, you would not have the right to advertise on Facebook or Instagram. The rightful owener for the Tradename will shut you down. 
4- You cannot get original consumable from sentient lasers, and you will need to pay more to buy it of the market.

Disclaimer: This is a personal opinion on the business transaction between Sentient Lasers and Albany Cosmetic and Laser clinic. I want to share my customer experience to communicate my frustration and dissatisfaction. I have no intention of defaming Sentient Laser and strongly suggest you contact Mr. Charlie Wason <c.wason@sentientlasers.com> from Sentient lasers for their feedback and to get their side of the story. 

The post is a description of the legal battle between Utah’s Sentient Lasers LLC and Edmonton’s Albany Cosmetic and Laser Centre. The partnership began in 2019 when Albany Cosmetic and Laser Clinic in Edmonton and Sentient Lasers in Utah signed a contract to purchase a refurbished Ulthera and CoolSculpting machine. Buying refurbished machines from sentient lasers in Utah is a decision that I regret and I wish to spare anyone else the same agony.

 

 April 26, 2019I signed a contract to buy buy a refurbished CoolSculpting and Ulthera from Sentient Lasers in Utah. It is clear to on the contract that the downpayment is fully refundable and the price include one-year warranty. Please check the full contract here
 May 1st, 2019Albany Paid 5000 as a down payment to  The invoice is attached here. It shows clearly that we had one-year warranty on both machines
 June 24, 2019 

Medi-One refused to fund the transction as per Marie Mckend email:  Good Morning, Please note that Dr. Alhallak’s lease approval is being cancelled due to the inability to finalize the lease. We have to remove the file from our queue as it will not fund. Sorry we were unable to finalize this and meet everyone’s requirements.

Regards,
Medi-One Financial

 June 24, 2019 

Chris Cella Refused to cancel the transaction or refund the deposit as per his email:

Marie: That simply makes no sense. I’ve been in contact with Meridian One Capital. I spoke with Desiree on Thursday the 13th. Per my conversation with him he was supposed to send me an email with what he can issue as a guarantee to pay, additionally requests for me to respond back with information on our company. Apparently, the bank was having a hard time finding information about Sentient Lasers which has to be a mistake. 

  June 25, 2019 

Mr. Cella refused my request to cancel the transaction as per Chris Cella email: You are overreacting. Please call me. It’s Wednesday the 25th. Lasers cannot deliver in 3 days. I can get you a tracking
number and the estimated delivery date. I just telling you the truth about when the lasers can deliver. I just letting know
the truth. Please call me back.

 

 Nov 11, 2019

I discovered that every Coolsculping handpiece was broken and glued. I sent an email to Eric Graham in Sentient Lasers. I recieved the following email from Joseph Walston:

Dr. Alhallak, Per the terms of your agreement, you have 48 hours to inspect the machine for shipping damage at the time of arrival and an additional 30-day warranty on anything that was shipped to show you we stand behind our work. The machine was delivered on 7/8/19 and reaching out in November is far outside the 30 day warranty period. We would be happy to evaluate the handpiece if you want to work with Eric to get it shipped back in, but unfortunately, your warranty period is expired and this will have to come in as an evaluation. Thank you,

 

  
  
  
  
  

Sentient Laser Contract

Sentient lasers’ contract reflects bad faith and the level of future customer service you will receive. Here are some key points that you need to pay attention to
1- Sentient laser contract mentions clearly that they have limited liability and they are selling the machines AS IS.
This means that you do not have the right to dispute the condition of the machine once you recieve it.
2- Arbitration is mantodary with sentient lasers, so you do not have the right to take them to court or even to post a bad review about them. Moreover hey are the only party that have the right to choose the aribtrator and they are in control of the whole procedure with the ICDR
3- Sentient Lasers are not a licensed reseller for Tradename. Therefore, your business will have no right to advertise or even offer the service under the same name. For example, if you pay an Ulthera, or Coolsculpting machine, you would not have the right to advertise on Facebook or Instagram. The rightful owener for the Tradename will shut you down. 
4- You cannot get original consumable from sentient lasers, and you will need to pay more to buy it of the market.