Antitrust Law Daily Wrap Up, ADVERTISING—D. Mass.: Disputes over false advertising for vacuum cleaners continue in Boston and Chicago courts, (Feb 20, 2015)

By Dan Selcke, J.D.

A false advertising claim filed in Illinois by one vacuum manufacturer against another was not so similar to a false advertising claim filed in Massachusetts by the second vacuum manufacturer against the first as to justify enjoining the first vacuum manufacturer from proceeding with the Illinois action, the federal district court in Boston, Massachusetts held (Euro-Pro Operating LLC v. Dyson Inc., February 19, 2015, Talwani, I).

Shark vs. Animal. Both Euro-Pro Operating LLC and Dyson Inc. manufactured and sold vacuum cleaners. Euro-Pro filed this action in Massachusetts federal court against Dyson, alleging that Dyson falsely advertised that its DC65 “Animal” vacuum had twice the suction power of Euro-Pro’s “Shark Navigator Lift-Away” vacuum. Shortly afterward, Dyson filed suit against Euro-Pro in Illinois federal court, alleging that Euro-Pro falsely advertised that its vacuum cleaner “deep cleans carpets better than Dyson’s best vacuum.”

Euro-Pro presented a motion to the court in Chicago, Illinois asking it to dismiss, transfer, or stay the Illinois action under the first-filed rule. The Illinois court refused, reasoning that the two cases were not duplicative and could move forward separately. Euro-Pro also filed a motion with the Massachusetts court asking it to enjoin Dyson from proceeding with the Illinois action for the same reason.

First-filed rule is inapplicable. “Where identical actions are proceeding concurringly in two federal courts, entailing duplicative litigation and a waste of judicial resources, the first filed action is generally preferred in a choice-of-venue decision.” The court looked to the decision in Cianbro Corp. v. Curan-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir. 1987). Euro-Pro argued that, under the first-filed rule, the court must enjoin Dyson from proceeding with its Illinois case, since Euro-Pro filed its substantially similar action in Massachusetts first. For essentially the same reasons as the Illinois court gave, the Massachusetts court rejected Euro-Pro’s argument.

Specifically, court held that Euro-Pro failed to demonstrate sufficient similarly between the Massachusetts and Illinois actions to warrant an injunction. The actions challenged different advertising campaigns: Dyson’s “twice the suction” campaign versus Euro-Pro’s “deep cleans carpets better” campaign. Moreover, those campaigns focused on different features of the parties’ vacuum cleaners: suction versus deep cleaning. Those features were in turn covered by different professional standards: ASTM F558 for measuring suction versus ASTM F608-13 for evaluating the removal of embedded dirt from carpets. Finally, the criteria and testing needed to meet those two standards was different.

Therefore, the court held that there was little overlap between the two actions and a low likelihood of conflict between it and the Illinois court. Also, Euro-Pro had not shown that Massachusetts was a more convenient forum for resolving Dyson’s claims in the first place. Accordingly, it denied Euro-Pro’s motion.

The case number is: 14-cv-13720

Attorneys: Randall K. Miller (Venable LLP) for Euro-Pro Operating LLC. Gregg F. Locascio (Kirkland & Ellis LLP) and Richard M. Zielinski (Goulston & Storrs) for Dyson Inc.

Companies: Euro-Pro Operating LLC; Dyson Inc.

Cases: Advertising MassachusettsNews