Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Tex.: Jury verdict in Lanham Act case over plastic resin product marketing stands, (Nov 1, 2013)

By Jody Coultas, J.D.

In a Lanham Act, false advertising case, a renewed motion for judgment as a matter of law and a motion for a new trial filed by defendant PlastiPure, Inc. was denied by the federal district court in Austin (Eastman Chemical Co. v. PlastiPure, Inc., October 31, 2013, Sparks, S.).

A jury found that PlastiPure, Inc violated the Lanham Act. The company was found to have made false and misleading statements about Eastman Chemical Company’s plastic resin product. The court upheld the verdict and issued a permanent injunction against PlastiPure. The court denied prevailing party Eastman Chemical’s request for attorney fees and costs. PlastiPure now moves for judgment as a matter of law and for a new trial.

The court denied PlastiPure’s motion for judgment as a matter of law as it had previously rejected all of PlastiPure’s grounds for relief. Also, the court rejected PlastiPure’s argument for a new trial based on the sufficiency of the evidence presented to the jury as it had previously.

PlastiPure was denied a new trial based on its argument that the court erred in admitting PlastiPure’s press releases into evidence, according to the court. Any error in admitting or excluding evidence is not grounds for a new trial. PlastiPure argued that the press releases did not amount to “commercial advertising or promotion” under the Lanham Act. However, PlastiPure previously raised this argument and it was rejected.

The court’s jury charge was not erroneous, according to the court. PlastiPure argued that the court erred by not submitting PlastiPure’s Lanham Act counterclaim to the jury; not including PlastiPure’s business disparagement counterclaim; not including PlastiPure’s affirmative defenses; characterizing PlastiPure’s statements as a group; including an instruction on “falsity by necessary implication”; instructing the jury on assuming materiality for literally false statements; and referencing PlastiPure’s website.

The court prepared a jury charge that did not include instructions or questions concerning the Lanham Act counterclaim or business disparagement counterclaim because there was insufficient evidence to support giving such instructions or questions to the jury. There was also insufficient evidence to submit any of PlastiPure’s affirmative defenses to the jury. The court’s instructions to the jury were also sufficient and supported by the evidence. PlastiPure was unable to provide any support for its argument that the jury charge was so erroneous as to support a new trial.

Even if the court were to consider the merits of PlastiPure’s argument that the court erred in not allowing an amendment of the counterclaims, the court would not order a new trial. PlastiPure filed their motion nearly ten months after the amended pleadings deadline chosen by the parties and nearly a full month after the dispositive motions deadline. Therefore, the court denied the motion as “inexcusably late” and too prejudicial to Eastman Chemical. Allowing PlastiPure to expand the scope of their counterclaims would have radically altered the nature of the evidence at trial, required the designation of new experts, and possibly necessitated new discovery on issues like deception, materiality, and injury. PlastiPure had plenty of time to plead its counterclaims, but failed to do so, in the court’s view.

The case is No. A-12-CA-057-SS.

Attorneys: Eleanor Ruffner (Fritz Byrne Head and Harrison, PLLC) for Eastman Chemical Co. Chris Reynolds (Reynolds Frizzell Black Doyle Allen & Oldham) and Robert G. Hargrove (Hays & Owens) for PlastiPure, Inc.

Companies: Eastman Chemical Co.; PlastiPure, Inc.

Cases: Advertising TexasNews