Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: SharkNinja's efforts to expand Dyson discovery lacked bite, (Apr 8, 2016)

By Edward L. Puzzo, J.D.

In a comparative advertising dispute, vacuum cleaner manufacturer SharkNinja was not entitled to discovery to ascertain competitor Dyson's "best" vacuum model, because the disputed advertising claims pertained to a specific Dyson model only, the federal district court in Chicago has ruled (Dyson, Inc. v. SharkNinja Operating LLC, April 7, 2016, Gottschall, J.).

SharkNinja Operating, formerly known as Euro-Pro Operating, ran a series of infomercials, television spots and other advertisements stating that its Shark Rotator Powered Lift-Away vacuum "deep cleaned carpets better than Dyson's best vacuum" under American Society of Testing and Materials (ASTM) F608 independent testing standards. Based on this claim, Dyson brought a false advertising action against SharkNinja, under the Lanham Act and the Illinois Uniform Deceptive Trade Practices Act.

Dyson alleged that as of June 2015, its best vacuum was its "Ball Multi Floor" model vacuum cleaners. A previous iteration of this model was known as the "DC65" model. Dyson alleged that after June 2015, SharkNinja continued to identify the older "DC65" model as Dyson's best vacuum.

Test results sought. SharkNinja alleged that, after the onset of this lawsuit, Dyson had claimed in correspondence and its website that its "Cinetic Big Ball" model was its best vacuum. SharkNinja moved to compel Dyson to produce test results for the "Cinetic Big Ball" model. The magistrate judge denied the motion, holding that Dyson's performance claims for the "Cinetic Big Ball" model were related to cleaning performance over multiple floor types, not its best vacuum for purposes of deep cleaning carpets under ASTM F608 which was "the only relevant metric in this case." SharkNinja then filed objections to the magistrate's order.

SharkNinja argued that the issue of which Dyson vacuum was their "best vacuum" was significant, because Dyson was seeking damages for a period of time when it offered all three models: the "DC65" model, the "Ball Multi Floor" model, and the "Cinetic Big Ball" model. The court, however, noted that in its December 2015 order, it had held that the case was only concerned with the accuracy of claims about comparative carpet cleaning ability, under ASTM F608 technical standards, between SharkNinja's "Shark Rotator Powered Lift-Away NV650/NV750" vacuum cleaners and Dyson's "DC65/Ball Multi Floor" vacuum cleaners.

Parameters of inquiry. The court, citing its March 2015 ruling, stated that SharkNinja's continuing efforts to expand the inquiry to other models of Dyson vacuum cleaners, and for test results beyond carpet cleaning, "waste the court's time and are extremely annoying." Nevertheless, the court continued, it would address SharkNinja's efforts to cast the "Cinetic Big Ball" model as Dyson's best vacuum.

SharkNinja claimed that a jury, not the court, must decide the disputed issue of fact as to whether the "DC65/Ball Multi Floor" model or the "Cinetic Big Ball" model is Dyson's best vacuum. Even if Dyson itself claimed at various times that both models were the best at cleaning carpets, the court continued, the issue was comparative statements made in SharkNinja's advertising with regard to "DC65/Ball Multi Floor" model only. The identity of Dyson's "best" vacuum was not a fact question that merited discovery, the court stated. The court therefore overruled SharkNinja’s objections to the magistrate judge’s order denying its motion to compel Dyson to produce "Cinetic Big Ball" model test results.

The case is Civil Action No. 1:14-cv-09442.

Attorneys: Robin Ann McCue (Kirkland & Ellis LLP) for Dyson, Inc. Caroline Petro Gately (Venable LLP) for SharkNinja Operating LLC and SharkNinja Sales Co.

Companies: Dyson, Inc.; SharkNinja Operating LLC; SharkNinja Sales Co.

Cases: Advertising StateUnfairTradePractices IllinoisNews