Antitrust Law Daily Wrap Up, ADVERTISING—D. Mass.: No reconsideration of motion to compel in vacuum cleaner false advertising dispute, (Feb 16, 2016)

By Linda O’Brien, J.D., LL.M.

In a Lanham Act false advertising case filed by vacuum manufacturer Euro-Pro against competitor Dyson, the federal district court in Boston has declined to reconsider its order denying Euro-Pro’s motion to compel production of certain testing documents (Euro-Pro Operating LLC v. Dyson Inc., February 12, 2016, Burroughs, A.).

Euro-Pro Operating LLC and Dyson Inc. manufacture and sell vacuum cleaners. In 2013, Dyson launched an advertising campaign promoting its “Dyson Animal” line of vacuum cleaners, claiming that they had “twice the suction” of other vacuum cleaners. In July 2014, Euro-Pro launched a vacuum product called the “Shark Powered Lift-Away.” In September 2014, Euro-Pro filed suit against Dyson, alleging that Dyson falsely advertised in that its DC65 “Animal” vacuum had twice the suction power of Euro-Pro’s “Shark Navigator Lift-Away” vacuum in violation of the Lanham Act. In November 2014, Dyson filed suit against Euro-Pro in the federal district court in Chicago, alleging that Euro-Pro falsely advertised that its vacuum cleaner “deep cleans carpets better than Dyson’s best vacuum.”

In November 2015, Euro-Pro moved to compel the production of documents relating to the testing performed on Dyson vacuums since 2012. Dyson objected on the grounds the request was not likely to lead to the discovery of admissible evidence. Dyson argued that the complaint did not allege that Dyson’s “twice the suction” claims were literally false from inception; rather, the complaint merely alleged that those claims became false and misleading when the Shark Navigator was launched into the marketplace in 2014. Therefore, documents relating to the initial testing of the Dyson Animal in 2012 were not relevant to the literal falsity claims. The court denied the motion, noting that the complaint did not allege that the defendants’ advertising claims were false at inception. After the close of discovery, Euro-Pro moved for reconsideration or, in the alternative, for leave to amend the complaint.

The court reaffirmed its holding that the plaintiff’s complaint was limited to allegations that Dyson’s “twice the suction” claims became literally false only after the introduction of the Shark Navigator and did not allege that the claim was false from its inception. There were no facts in the complaint to support an allegation of literal falsity from inception, and the complaint could not be plausibly read to introduce new facts or theories. Since the motion to compel was aimed at determining whether Dyson’s claims were literally false at inception, such documents were not reasonably likely to lead to the discovery of admissible evidence relevant to the plaintiff’s claims for relief, in the court’s view.

Additionally, the plaintiff failed to demonstrate good cause for waiting to move to amend until after discovery was closed. According to the court, the plaintiff was in agreement with or was on notice of Dyson’s position on the literal falsity claim prior to the close of discovery and offered no valid explanation for why it failed to raise a critical issue earlier in the proceedings. Finally, allowing an amendment would be unduly prejudicial, since it would require the reopening of discovery in support of a legal theory that the plaintiff did not attempt to advance until late in the proceeding.

The case is No. 1:14-cv-13720-ADBB.

Attorneys: Michael Charnoff (Perry Charnoff PLLC), Nicholas M. Depalma (Venable LLP), and Robert D. Carroll (Goodwin Procter LLP) for Euro-Pro Operating LLC. Gregg F. Locascio (Kirkland & Ellis LLP) and Richard M. Zielinski (Goulston & Storrs) for Dyson Inc. Megan M. New (Kirkland & Ellis LLP) for Dyson Ltd.

Companies: Euro-Pro Operating LLC: Dyson Inc.; Dyson Ltd.

Cases: Advertising MassachusettsNews