Wing Enters., Inc. v. Tricam Indus., Inc.

511 F.Supp.3d 957

WING ENTERPRISES, INC., d/b/a Little Giant Ladder Systems, a Utah corporation, Plaintiff,

v.TRICAM INDUSTRIES, INC., a Minnesota corporation, Defendant.

Case No. 17-cv-1769 (ECT/ECW)

United States District Court, D. Minnesota.

Signed January 7, 2021

Mark A. Miller, Brett L. Foster, and Elliot J. Hales, Dorsey & Whitney LLP, Salt Lake City, UT, and Clint Conner and Caitlin L. D. Hull, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiff Wing Enterprises, Inc.

Eric H. Chadwick and Zachary P. Armstrong, DeWitt LLP, Minneapolis, MN, for Defendant Tricam Industries, Inc.

OPINION AND ORDER

Eric C. Tostrud, United States District Judge

The Parties in this case manufacture competing brands of articulated ladders, also known as multi-position (or "MPX") ladders. Plaintiff Wing Enterprises, Inc., sells multi-position ladders under the Little Giant brand through a number of channels. Defendant Tricam Industries, Inc., sells multi-position ladders under the Gorilla Ladders brand in stores and online through Home Depot. In this lawsuit, Wing claims that Tricam violated the Lanham Act, 15 U.S.C. § 1125(a), and the Minnesota Deceptive Trade Practices Act ("DTPA"), Minn. Stat. § 325D.44, by falsely representing that its ladders comply with ANSI ASC A14.2 ("ANSI A14.2"), a voluntary industry standard for portable metal ladders. See Compl. ¶¶ 29–48 [ECF No. 1]. Summary judgment was previously granted to Tricam on the ground that Wing had not shown that the alleged misrepresentations were material to consumers’ purchasing decisions. ECF Nos. 370, 371. The Federal Circuit reversed that judgment on appeal and remanded for a determination "whether summary judgment may be proper on other grounds." Wing Enters., Inc. v. Tricam Indus., Inc. , 829 F. App'x 508, 517 (Fed. Cir. 2020) ; see ECF Nos. 431, 432, 437. The Parties have submitted supplemental briefing on Tricam's motion for summary judgment. ECF Nos. 434, 436.

The motion will be denied. On this record, a reasonable jury could find that Tricam made literally false statements in commercial advertising. That finding, if a jury made it, would allow a presumption that Tricam's statements deceived consumers. And based on the nature of the relief it seeks, Wing has created a genuine dispute of material fact as to whether it suffered a commercial injury that was proximately caused by Tricam's statements.

I

Given the posture of this case and the nature of the issues involved, a summary of the general factual and procedural history is in order before addressing the Parties’ arguments. Facts that are relevant only to individual issues will be introduced later as appropriate.

Wing's claims all revolve around ANSI A14.2, a voluntary industry standard that "prescribes rules governing safe construction, design, testing, care and use of portable metal ladders of various types and styles." Stensland Decl., Ex. 34 at 10 [ECF No. 162-5]. Relevant here, Section 6.7.5 of that standard says that, when a ladder uses particular types of rungs, those rungs "shall have a step surface of not less than 1 inch, either flat or along a segment of 3 inches or greater radius." Id. at 18–19. The outer rungs on Tricam's multi-position ladders are greater than one inch deep in the middle, but they are crimped at each end, where the rung meets the rail, as pictured here:

Wing Mem. Opp'n Summ. J. at 2 [ECF No. 260]. The crimped portions of the rung are less than one inch deep. Miller Decl. ¶ 9, Ex. 8 at 8, 15–17 ("Bloswick Report") [ECF Nos. 262, 270]. Wing believes that the crimped portions are part of the "step surface" and therefore that Tricam's rungs do not fully comply with Section 6.7.5 of ANSI A14.2. See id. at 19.

Wing identifies three statements in which it claims Tricam falsely represented that its ladders comply with ANSI A14.2: (1) the label affixed to each ladder containing an oval icon that bears the text "MANUFACTURER CERTIFIES CONFORMANCE TO OSHA¹ ANSI A14.2 CODE FOR METAL LADDERS"; (2) the portion of each product's page at Home Depot's website that provides: "Certifications and Listings: ANSI Certified"; and (3) the portion of each product's page on Tricam's website that provides: "CERTIFICATIONS: ANSI A14.2 OSHA." Wing Mem. Opp'n Summ. J. at 4.

When Tricam originally moved for summary judgment, it also moved to exclude the testimony of two of Wing's expert witnesses. ECF Nos. 220, 224; see Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The first witness, Donald S. Bloswick, opined that Tricam's ladders do not actually conform to ANSI A14.2, and Wing planned to use this testimony to show that Tricam's ANSI-certification statements were false. See Wing Mem. Opp'n Summ. J. at 25–26; see generally Bloswick Report. The second witness, Hal Poret, used the results of two consumer surveys to conclude that Tricam's statements were likely to influence customers’ purchasing decisions. The first survey purported to test the impact of Tricam's label (the "Labeling Survey") and the second tested the impact of safety standards in general on consumers’ thinking (the "Importance Survey"). See Stensland Decl., Ex. 22 at 4 ("Poret Report") [ECF No. 113-16]. Wing planned to use Poret's testimony to show that Tricam's statements were material. In the prior order that ultimately granted summary judgment, Bloswick's testimony was admitted, but Poret's testimony was excluded. ECF No. 370 at 6–27. Based largely on the exclusion of Poret's testimony, summary judgment was granted to Tricam on the ground that Wing had not created a sufficient factual dispute on the materiality of Tricam's statements. Id. at 29–31.

The Federal Circuit reversed the grant of summary judgment. It affirmed the decision to exclude Poret's testimony about the Labeling Survey but reversed the decision to exclude his testimony about the Importance Survey. See Wing Enters. , 829 F. App'x at 512–16. The court then concluded that Poret's admissible testimony, combined with other evidence in the record, was enough for "a reasonable jury [to] find in favor of Wing as to the materiality element." Id. at 517. Summary judgment on that basis was therefore improper, and the court remanded the case for a determination "whether summary judgment may be proper on other grounds." Id. On remand, the Parties submitted supplemental briefing addressing these "other grounds"—that is, the other arguments that Tricam advanced in support of its summary-judgment motion. ECF Nos. 434, 436. Because neither Party introduced new legal arguments or significant new authorities, an additional hearing on Tricam's motion was unnecessary. ECF No. 439.

II

Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute over a fact is "material" only if its resolution "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over a fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255, 106 S.Ct. 2505 (citation omitted).

III

Under the Lanham Act:

Any person who, ... in connection with any goods, ... uses in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, [or] qualities ... of his or her ... goods, ... shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1)(B). The Act's purpose is "to protect persons engaged in commerce against false advertising and unfair competition." Am. Italian Pasta Co. v. New World Pasta Co. , 371 F.3d 387, 390 (8th Cir. 2004) (quoting United Indus. Corp. v. Clorox Co. , 140 F.3d 1175, 1179 (8th Cir. 1998) ).

The Eighth Circuit has distilled this statutory text into five elements that a plaintiff must prove to establish a false-advertising claim:

(1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a loss of goodwill associated with its products."

United Indus. Corp. , 140 F.3d at 1180. The Minnesota Deceptive Trade Practices Act "mirrors" the Lanham Act, and courts therefore "use the same analysis to evaluate false advertising claims that are made simultaneously under the federal and state statutes." Med. Graphics Corp. v. SensorMedics Corp. , 872 F. Supp. 643, 649 (D. Minn. 1994) ; accord Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc. , 829 F. Supp. 2d 802, 809 n.7 (D. Minn. 2011). A plaintiff's failure to demonstrate any one of the five elements is fatal to its claim. Allsup, Inc. v. Advantage 2000 Consultants Inc. , 428 F.3d 1135, 1138 (8th Cir. 2005). Tricam does not dispute the fourth element—that it caused its allegedly false statements to enter interstate commerce—and the Federal Circuit has already held that a triable issue of fact exists on the materiality element. Tricam's remaining arguments concern the first, second, and fifth elements, and they will now be addressed in turn.

A

Tricam raises two different arguments on the first element. First, it says that it was not responsible for any statements on Home Depot's website. Second, it says that no reasonable jury...