Naturally More v. Nuts 'N More LLC
MEMORANDUM OPINION. Signed by Judge R David Proctor on 11/16/2016. (AVC)
2016 Nov-16 AM 09:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SNAC LITE, LLC, d/b/a
NUTS ‘N MORE, LLC,
Case No.: 2:14-cv-01695-RDP
This case is before the court on Defendant’s Motion for Summary Judgment (Doc. # 56),
Defendant’s Motion to Exclude Testimony of Robert Robicheaux, Ph.D. (Doc. # 57),
Defendant’s Motion to Exclude Testimony of Steve Lovoy, Jr. (Doc. # 58), Plaintiff’s Motion for
Summary Judgment (Doc. # 97), Plaintiff’s Motion to Strike Helen McDaniel as Expert Witness
(Doc. # 49), and Plaintiff’s Motion to Exclude Trial Testimony Michael R. Solomon, Ph.D.
(Doc. # 61). The Motions have been fully briefed, and the parties have responded and replied to
the Motions. (Docs. # 51, 76, 77, 78, 80, 81, 82, 83, 84).
In this Lanham Act suit, Plaintiff alleges that Defendant misrepresented the protein
content of its specialty nut butters, and seeks injunctive relief, an order requiring Defendant to
correct any erroneous impression Defendant’s alleged false advertisement created, an award of
its lost profits, disgorgement of Defendant’s profits, and recovery of its attorney fees. (Doc. #
36). See 15 U.S.C. § 1125. Defendant contends that Plaintiff’s claim must be dismissed for two
reasons: (1) Plaintiff and Defendant are not direct competitors; and (2) Plaintiff cannot meet its
burden of proving causation and proximate causation. The parties also dispute whether the
testimony of the expert witnesses is due to be stricken.
Relevant Undisputed Facts1
Both Plaintiff and Defendant are nut butter manufacturers. Plaintiff markets and sells
four types of peanut butters and almond butters: Naturally More Peanut Butter, Naturally More
Almond Butter, PowerPB, and Peanut Power Butter. (Doc. # 69-5 at 11:1-5, 13:22-17:15, 19:112). In contrast to traditional peanut butter spreads, Plaintiff’s products are enhanced with added
protein, flax seed, and other nutrients. (Doc. # 69-5 at 12:8-12). Based on these enhancements,
Plaintiff markets its products as more healthy alternatives to traditional, non-fortified nut butters.
(Doc. #69-5 at 54:18-23). Plaintiff’s products sell at retail prices higher than many mass market
peanut butters. Plaintiff’s Naturally More peanut butter sells for $3.29 to $4.99 per jar. (Doc. #
69-5 at 39:11-18). Plaintiff’s Naturally More almond butter sells for $8.99 to $12.99 per jar, and
Plaintiff’s Power Butter and Power PB sell for $9.99 to $12.99 per jar. (Doc. # 69-5 at 39:1118).
Defendant also markets and sells enhanced high protein peanut and almond butters. (Doc.
# 69-1 at 25:3-18). Defendant’s products contain a variety of enhancements, including added
protein, fiber, organic flax, and natural sweetener. (Doc. # 69-1 at 96:10-15, 126:25-127:2).
Defendant also promotes its products as enhanced alternatives to traditional nut butters, and its
nut butters sell for $10.99 to $15.99 per jar. (Doc. # 93-8 at ¶5).
The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
Although Plaintiff and Defendant both produce specialty nut butters, the parties’ products
have distinct nutritional profiles and marketing strategies. Plaintiff’s products are enhanced with
pea protein.2 (Doc. # 69-5, 30:14-31:19). By contrast, Defendant’s products are enhanced with
whey protein. (Doc. # 69-1, 96:10-15, 126:25-127:2). Further, Plaintiff’s nut butter products are
sweetened with added sugar, while Defendant’s products are sweetened with xylitol (a natural
sweetener derived from birch) rather than sugar. (Doc. # 69-5, 11:1-5, 13:22-17:15, 19:1-12;
Doc. # 69-1, 96:10-15; 126:25-127:2).
Defendant’s products come in a number of flavor
varieties3, while Plaintiff’s products are only available in “traditional” peanut butter and almond
butter flavors. (Doc. # 69-5, 11:1-5, 13:22-17:15, 19:1-12).
Defendant markets its products with a distinctive, fitness-oriented, brand personality.
(Doc. # 92-3 p. 8; Doc. # 69-1, 55:18-56:4; 64:1-12). Defendant sells its products at fitness and
supplement shows, GNC stores, Whole Foods stores, and through online retailers. (Doc. # 69-3,
8:10-19; Doc. # 92-3 p. 10). In branding its products, Defendant often uses social media
websites and touts its products by highlighting its “celebrity” customers. (Doc. # 69-1, 55:1858:24; Doc. # 93-8 at ¶4). By contrast, Plaintiff does not advertise in fitness magazines, attend
trade shows, or have a social media “presence”. (Doc. # 69-5, 42:5-43:4). Plaintiff sells its
products at grocery stores such as Walmart, Publix, Giant Eagle, Shop Rite, Kroger, and HEB.
(Doc. # 69-5, 20:21-22:8). Additionally, Plaintiff sells its products at GNC, Vitamin Shoppe,
and other “mom and pop health food stores.” (Doc. # 69-5, 21:11-14).
Plaintiff has enhanced its products with pea protein since 2014. (Doc. # 69-5, 30:19-31:19). Prior to
that, Plaintiff enhanced its products with soy protein. (Id.)
Defendant started out producing peanut butter, chocolate peanut butter, almond butter, and chocolate
almond butter. (Doc. # 69-1, 8:1-13). By 2014, Defendant also offered pumpkin spice, cookie butter, salted
caramel, sesame cranbutter, toffee crunch, white chocolate, and cinnamon raisin nut butters. (Doc. # 69-1, 133:1.514; 143:7).
In fall of 2012, Plaintiff recalled all of its products due to salmonella contamination at
one of its manufacturers’ facilities. (Doc. # 69-5, 47:5-49:8). Plaintiff did not resume selling its
products for several months after the recall while it looked for a new manufacturer for its
(Doc. # 69-5, 47:5-49:13).
In November 2012, Plaintiff began using a new
manufacturer; however, that manufacturer could not accommodate Plaintiff’s previous jar size
and Plaintiff thus could not fill orders immediately. (Doc # 69-5, 23:12-23).
In March 2013, Defendant appeared on the network television show Shark Tank. (Doc. #
93-8 at ¶ 3). On the show, representatives of Defendant made a pitch to prospective investors
with the hope of obtaining investors. (Doc. # 93-8 at ¶ 3; Doc. # 36 at p. 11). As part of their
pitch, Defendant’s representatives touted its nut butters as containing 14 grams of protein per
serving. (Doc. #36 at p. 11). Defendant ultimately obtained capital from two of the investors on
the show, and Defendant has since appeared in two of the show’s follow-up episodes. 4 (Doc.
#36 at p.12).
Also in March 2013, Plaintiff became dubious of Defendant’s protein content claims.
(Doc. #36 at p.12). Doubting that Defendant’s products contained 14 grams of protein per
serving, Plaintiff sent a sample of Defendant’s peanut butter product to an independent lab to test
the product’s protein content. (Doc. # 94-1). Plaintiff provided evidence of seven lab test
reports of the protein content of twenty-one of Defendant’s products dated between April 5, 2013
and May 21, 2015. (Doc. # 69-11 at p. 67). All the tests conducted during the relevant time
period (i.e., the period during which Defendant marketed its products as containing 14 grams of
protein per serving) purport to indicate a protein content less than eighty percent of the amount
of protein actually claimed by Defendant’s labels and advertising. (Doc. # 69-11 at p. 67).
Defendant’s follow up appearances on episodes of the television show Shark Tank aired in 2014 and
2015. (Doc. 93-8 at ¶ 3)
In 2014, Plaintiff switched manufacturers again. (Doc. # 69-5, 124:9-125:3). As a result
of this switch, Plaintiff changed the protein source of its products from soy to pea protein. (Doc.
# 69-5, 30:19-31:19).
Notably, until 2014, Defendants marketed their products as containing 14 grams of
protein per serving. (Doc # 36 at ¶16 n. 2; Doc # 91-5 at 28:4-8). In fact, Defendant’s products
featured the claim “14 grams of protein” on their nutrition labels. (Doc. # 36 at ¶ 23). Further,
the principal display panels on Defendant’s products, which are packaged in individual jars,
stated in bold font that they contained “14 grams of protein” in addition to making other nutrient
content claims. (Doc. # 36 at ¶¶ 19, 21). Defendant’s marketing efforts repeated the claim that its
products contained 14 grams of protein per serving. (Id.)
In 2014, Defendant reformulated its products. (Doc. # 69-1, 98:10-15). Following this
reformulation, Defendant changed its labeling and advertising to reflect its products’ new protein
content (twelve grams of protein content instead of fourteen), as well as new carbohydrate and
fiber content. (Id.; Doc. # 91-5 at 28:4-8).
Plaintiff’s Amended Pleadings
Plaintiff filed this lawsuit on September 2, 2014.
(Doc. # 1).
Complaint contained a claim for False Advertising under the Lanham Act and a claim for relief
under Alabama Code § 8-19-2 (“Alabama Deceptive Trade Practices Act”). Upon mutual
agreement of the parties, the court dismissed with prejudice the Alabama Deceptive Trade
Practices Act claim, and allowed Plaintiff to replead its Lanham Act claim. (Doc. # 30).
Plaintiff then filed an amended complaint. (Doc. #31). The amended complaint was followed by
a second amended complaint (Doc. # 36), in which Plaintiff alleged that it lost business as a
result of Defendant’s alleged misrepresentations.
Defendant’s Motion to Exclude Testimony of Robert Robicheaux
Defendant has moved to exclude the testimony of Dr. Robert Robicheaux (Doc. # 57),
arguing that Dr. Robicheaux’s methodology is not reliable, his opinion that Defendant and
Plaintiff are direct competitors is not supported, his opinion that protein content is the
“determinant attribute” in buyers’ decision-making is unreliable, his opinion that Plaintiff’s sales
were adversely affected by Defendant’s protein content claim is unsupported, he is not qualified
to testify regarding his opinions about consumer behavior, and his testimony that Defendant’s
protein content claims were false is inadmissible and should be excluded. (Doc. # 57).
Dr. Robicheaux addressed three issues in his report and subsequent deposition: (1)
whether Defendant made false or misleading statements in commercial advertisement about its
products; (2) whether those statements deceived or had the capacity to deceive a substantial
segment of potential consumers; and (3) whether the deception caused by the statements was
material because it was likely to have influenced consumers to decide to purchase Defendant’s
products instead of Plaintiff’s products. (Doc. # 69-11 at p. 52).
In making his determinations, Dr. Robicheaux spoke to employees at two GNC stores in
Birmingham, Alabama and reviewed email messages sent to a representative of Defendant.
(Doc. # 69-11 at p. 55). Dr. Robicheaux further conducted internet research to determine the
benefits of a high protein diet, and to learn more about the target customers of Defendant’s
products. (Id.) It was from his interviews and data collection that Dr. Robicheaux reached his
conclusion regarding what the “market” is for Defendant’s products and its competitor’s
products. (Doc. # 69-11 at p. 55-56).
Dr. Robicheaux’s expert report addressed the market for high protein nut butters, and the
benefits buyers of such products seek. (Doc. # 69-11 at p. 55). His report detailed the market for
peanut butter in the United States, including the market shares of the four major sellers of mass
marketed peanut butter spreads.5 (Doc. # 69-11 at p. 60-61). His report further detailed the
factors that differentiate the high protein nut butter market from the “traditional” nut butter
market. (Doc. # 69-11 at p. 62). Dr. Robicheaux concluded that the determinant attribute for
potential buyers of high protein nut butters is protein content, and that Defendant’s alleged
misrepresentation of its products’ protein content was thus likely to materially deceive potential
customer. (Doc. # 69-11 at p. 63-64). Dr. Robicheaux concluded his report by stating that “[a]
significant share of Defendant’s sales are coming at the expense of high-protein content nut
butter sellers who have not claimed protein content beyond what is factual,” and “Plaintiff’s
sales have been adversely affected.” (Doc. # 69-11 at p. 71).
Standards of Review
Daubert and Rule 702
The admissibility of expert testimony is governed by Federal Rule of Evidence 702, and
Daubert and its progeny. Federal Rule of Evidence 702 provides for the admission of expert
testimony when “scientific, technical, or other specialized knowledge will assist the trier of fact.”
In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court held
that scientific expert testimony is admissible only if the proffered testimony is both relevant and
reliable. “[A] district court judge is to act as a ‘gatekeeper’ for expert testimony, only admitting
Dr. Robicheaux notes that the peanut butter industry is very concentrated, with 83% of all peanut butter
sales going to Smucker’s Jif, Hormel’s Skippy, ConAgra’s Peter Pan and Great Value, and Hershey’s Reece’s.
(Doc. # 69-11 at p. 61). He further observed that Defendant is not in competition with these “giant consumer
packaged goods companies”, but instead competes in the limited high protein nut butter market. (Doc. # 69-11 at p.
62). Notably, Dr. Robicheaux did not conduct a similar analysis of the high protein nut butter industry. He did not
calculate Plaintiff’s market share nor research any of the other competitors in the high protein nut butter industry.
(Doc. # 69-11, 77:12-16; 123:9-13; 15:10-14; 45:18-46:3).
such testimony after receiving satisfactory evidence of its reliability.”
Dhillon v. Crown
Controls Corporation, 269 F.3d 865, 869 (7th Cir. 2001); see also U.S. v. Majors, 196 F.3d
1206, 1215 (11th Cir. 1999). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
Accordingly, under Rule 702, “this [c]ourt has an obligation to screen expert testimony to ensure
it stems from a reliable methodology, sufficient factual basis, and reliable application of the
methodology to the facts.” Whatley v. Merit Distribution Services, 166 F.Supp.2d 1350, 1353
(S.D. Ala. 2001) (citations omitted).
While the inquiry is “a flexible one,” the focus “must be solely on principles and
methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 594–95; see
McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (recognizing a trial judge “should
meticulously focus on the expert's principles and methodology, and not on the conclusions that
they generate”). “But conclusions and methodology are not entirely distinct from one another”;
neither Daubert nor Federal Rule of Evidence 702 requires a trial judge “to admit opinion
Rule 702 was amended in 2011. According to the advisory committee notes (2011 Amendments) to Rule
702, “[t]he language of Rule 702 has been amended as part of the restyling of the Evidence Rules to make them
more easily understood and to make style and terminology consistent throughout the rules. These changes are
intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.”
evidence that is connected to existing data only by the ipse dixit7 of the expert.” Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997).
To aid in determining reliability under Rule 702, courts look to the non-exclusive factors
set forth in Daubert:
(1) whether the expert's methodology has been tested or is capable of being tested;
(2) whether the theory or technique used by the expert has been subjected to peer
review and publication; (3) whether there is a known or potential error rate of the
methodology; and (4) whether the technique has been generally accepted in the
relevant scientific community.
United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013) (citing
Daubert, 509 U.S. at 592-95); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151
(1999) (“[Daubert’s] list of factors was meant to be helpful, not definitive.”). Under Daubert,
“no single factor is necessarily dispositive of the reliability of a particular expert’s testimony.”
Fed. R. Evid. 702 advisory committee’s notes (2000 Amendments) (citations omitted). The
notes to Rule 702 make clear that “[n]othing in [Rule 702] is intended to suggest that experience
alone – or experience in conjunction with other knowledge, skill, training or education – may not
provide a sufficient foundation for expert testimony.” Id. The Rule “expressly contemplates that
an expert may be qualified on the basis of experience. In certain fields, experience is the
predominant, if not sole, basis for a great deal of reliable expert testimony.” Id. But, “[a]s
gatekeeper for the expert evidence presented to the jury, the judge ‘must do a preliminary
assessment of whether the reasoning or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology properly can be applied to the facts in
issue.’” Chapman v. Procter & Gamble Distributing, LLC, 766 F.3d 1296, 1306 (11th Cir. 2014)
(quoting Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010)).
From the Latin, this phrase is translated “he himself said it.” An ipse dixit statement is one which is
unsupported and rests solely on the authority of the individual who makes it. See http://thelawdictionary.org.
“[T]he proponent of the testimony does not have the burden of proving that it is
scientifically correct,” but must establish “by a preponderance of the evidence, it is reliable.”
Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)). An expert’s failure to satisfy any of the four
reliability factors recognized in Daubert is sufficient to preclude the testimony of an expert from
testifying at trial. Daubert, 509 U.S. at 593–94.
B. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and – by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file – designate specific facts showing that there is a genuine issue for trial.
See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations
made in the complaint; instead, as the party bearing the burden of proof at trial, she must come
forward with at least some evidence to support each element essential to her case at trial. See
Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
After careful review, the court concludes that (1) Dr. Robicheaux’s proffered opinion is
due to be excluded because it is unreliable and not supported by a reliable methodology, (2) Mr.
Lovoy’s proffered opinion suffers from the same fatal flaws, and (3) Defendant’s Motion for
Summary Judgment is due to be granted. The court addresses each of these issues in turn.
Dr. Robicheaux’s Opinion that Defendant’s Alleged False Advertisement
Caused Plaintiff’s Injuries is Unreliable and is Not Supported by a Reliable
Defendant argues that Dr. Robicheaux’s opinion that Plaintiff’s sales were adversely
affected by Defendant’s alleged misrepresentation is not supported by facts or reliable
methodology. (Doc. # 89 at p. 5). Defendant further argues that Dr. Robicheaux’s testimony
regarding the cause of plaintiff’s injuries should be excluded because, in defining the “market”
for Defendant’s products, he did not speak to any customers, conduct customer surveys, conduct
focus groups, or interview any authorized representative of Defendant’s distributors or retailers.
(Doc. # 89 at p. 6). Additionally, Defendant contends that Dr. Robicheaux failed to account for
additional variables (besides Defendant’s protein claims) that may have affected the parties’
sales positions. (Doc. # 89 at p. 15). The court agrees.
In IQ Products Co. v. Pennzoil Products Co., 305 F.3d 368 (5th Cir. 2002), both of the
parties manufactured competing tire inflation products, and the plaintiff alleged that the
defendant failed to label its “Fix-A-Flat” product as “flammable.” Id. at 370. After receiving a
magistrate judge’s recommendation, the district judge excluded the plaintiff’s two witnesses who
would have testified as to the effect of the defendants’ allegedly false statements because the
experts’ opinions were based on “insufficient data” and “unreliable methodology”. Id. at 376.
The court found that the experts “did not conduct any market or survey research or [provide] any
data that could be subject to testing and verification.” Id. The court excluded testimony that
customers would have purchased plaintiff’s products instead of defendant’s products, because
that opinion was supported only by “common sense”, and not market research or other tests. Id.
The Fifth Circuit upheld both the exclusion of the experts on this basis as well as the grant of
summary judgment. Id. at 377, 378.
Similarly, in 3M Innovative Properties Co. v. Dupont Dow Elastomers LLC, 361 F. Supp.
2d 958 (D. Minn. 2005), the court noted that the plaintiff’s expert calculated “damages after
assuming that the false advertising caused [the plaintiff’s] lost profits,” and that that alone did
not provide any insight into, much less evidence of, causation. Id. at 973. The court granted
summary judgment in part because the plaintiff’s expert failed to “link” the change in the parties’
sales positions to the defendant’s advertising claims. Id. In particular, the court found that
“assumption or belief that lost sales can be attributed to [Defendant]’s advertising generally…. is
an insufficient evidentiary basis on which to avoid summary judgment.” Id.
Here, in his expert report and deposition, Dr. Robicheaux predominately focused on the
nut butter market and the defining attributes of specialty nut butters.
He has opined that
consumers chose Defendant’s products over Plaintiff’s products because of Defendant’s alleged
false advertising. (Doc. #69-11 at p. 71).
A review of the record evidence, however,
demonstrates that Dr. Robicheaux’s opinion testimony is wholly conclusory, and lacks the
methodology and support necessary to be helpful to a jury.
Dr. Robicheaux has not performed any significant analysis “linking” Defendant’s alleged
misrepresentations to Plaintiff’s lost profits, and as such his methodology fails to produce
sufficient reliable information regarding causation. While he studied the market for Defendant’s
products, he has made no attempt to analyze Plaintiff’s marketing strategy or its target
Dr. Robicheaux’s opinion that Defendant’s alleged false advertising caused
Plaintiff’s injury is based on comparison of the parties and the likelihood of injury, but his expert
report and deposition testimony fail to analyze the market for Plaintiff’s products.
The court in IQ Products Co. excluded similar testimony of an expert who opined that
consumers would have purchased plaintiff’s product instead of defendant’s product because the
expert failed to conduct reliable survey or market research. 305 F.3d at 376. While this is not the
only type of evidence that would support a finding of causation, it is notable that Dr. Robicheaux
did not perform any kind of consumer study to determine the impact, if any, Defendant’s alleged
false advertising had on Plaintiff’s sales. In a setting like this, in order to testify regarding
causation, an expert must present some evidence that Defendant’s alleged misrepresentations
caused Plaintiff to lose sales. See, e.g. Trilink Saw Chain, LLC v. Blount, Inc., 583 F.Supp.2d
1293 (N.D. Ga. 2008). Such testimony requires the expert to demonstrate both that consumers
chose Defendant’s products over Plaintiff’s products, and that consumers’ choices were
connected to Defendant’s false advertising.
Such a conclusion requires more than an
examination of the market for Defendant’s products and an explanation of the purportedly false
Dr. Robicheaux’s conclusion that Defendant’s alleged false advertisement caused
Plaintiff’s loss in sales is further problematic because it fails to take into account other relevant
factors related to the parties’ sales positions. In a Lanham Act false advertising case, a causation
expert need not exclude every possible alternative cause of a plaintiff’s injury; however, in order
to provide reliable testimony an expert must take into account most relevant factors as to
causation. Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384, 442 (D.N.J.
2009) (finding an expert’s testimony regarding causation unreliable where the expert did not
undertake a systematic analysis to determine the specific effect of any piece of advertising, and
failed to analyze most relevant factors as to causation.).
Notably, Defendant appeared on the NBC show Shark Tank and multiple follow up
television shows. Dr. Robicheaux did not take this important factor into account when analyzing
why consumers may have chosen Defendant’s products. Further, even if the court assumes that
consumers purchased Defendant’s products due to the alleged false advertising, 8 Dr. Robicheaux
nonetheless failed to account for Plaintiff’s independent financial troubles when assuming
Defendant’s alleged false advertisement caused Plaintiff’s loss of sales. In 2012, Plaintiff’s
products were recalled due to salmonella contamination in a manufacturer’s plant, and Plaintiff
later switched manufacturers and protein content additive several times. These changes caused
Plaintiff financial hardship, and Dr. Robicheaux’s assumption that all of Plaintiff’s sales losses
since 2012 are attributable to Defendant’s alleged false advertising is thus unlikely.
Dr. Robicheaux’s proposed testimony appears to ably address three of the four elements
necessary to establish a false advertising claim under the Lanham Act.9 However, his proposed
If the factfinder determines that Defendant’s advertisement was literally false (as opposed to being true
but misleading), it may assume that consumers were deceived, and a plaintiff-competitor need not present evidence
of consumer deception. See Johnson & Johnson Vision Care, Inc. v. 1–800 Contacts, Inc., 299 F.3d 1242, 1247
(11th Cir. 2002).
As mentioned above, Dr. Robicheaux’s report addressed (1) whether defendant made false or misleading
statements in commercial advertisement about its products, (2) whether those statements deceived or had the
capacity to deceive a substantial segment of potential consumers, and (3) whether the deception caused by the
statements was material because it was likely to have influenced consumers to decide to purchase Defendant’s
products instead of Plaintiff’s products.
testimony that Defendant’s alleged misrepresentations caused Plaintiff’s damages is due to be
stricken, as it is unsupported by sufficient data or reliable methodology.
Defendant’s Motion to Exclude Testimony of Steve P. Lovoy, Jr.
Defendant has also moved to exclude Steve P. Lovoy, Jr.’s testimony (Doc. # 57),
arguing that Mr. Lovoy, a Certified Public Accountant with professional experience performing
audit and consulting services, is not qualified to testify regarding causation and that his opinion
that Defendant’s alleged false advertising caused Plaintiff to lose market share is excludable. The
court agrees and concludes that Defendant’s Motion is due to be granted in part.
Mr. Lovoy’s expert report (1) compares the Parties’ sales revenues and (2) contends that
Defendant’s alleged false advertising caused Plaintiff to lose market share. (Doc. # 69-10 at p.
91-95). While it is unclear from Mr. Lovoy’s expert report and deposition whether he intended
to testify as to the cause of Plaintiff’s alleged damages,10 the evidence submitted by the parties
establishes that Mr. Lovoy is not qualified to testify regarding the cause of Plaintiff’s injury.
Mr. Lovoy’s expert report provides a summary of both parties’ sales revenues from 2012
to June 2015. (Doc. # 69-10 at p. 93). Mr. Lovoy created this summary from information
contained in the Parties’ accounting records, as well as the deposition testimony of each party’s
representatives and financial statements provided by both of the Parties. (Doc. # 69-10 at p. 100).
Mr. Lovoy further provided a calculation of damages in his report. (Doc. # 69-10 at p. 9495). Mr. Lovoy determined that Plaintiff lost $2.6 million in sales as a result of Defendant’s
false advertising. (Doc. # 69-10, 17:4-8). Mr. Lovoy described his methodology as follows:
Mr. Lovoy stated in his report that that he was retained “to evaluate and render opinions regarding
[Plaintiff’s] economic damages assuming a finding of liability against [Defendant] in this matter.” (Doc. # 69-10 at
91). When asked in his deposition if he was “rendering a causation opinion” in this case, Mr. Lovoy answered, “No,
I don’t think that’s what I am doing.” (Doc. # 69-10, 40:1-4). However, Mr. Lovoy later testified in his deposition
that Plaintiff suffered financial harm as a result of Defendant’s alleged false advertising. (Doc. # 69-10, 160:8-15).
After the review that I described of [Plaintiff’s] records and review of the testimony and
all of the other documents that I’ve looked at, any decline that I could associate with
another intervening cause I have accounted for. And I’m left with the 2.6 million that we
are talking about now for which… I am unable to identify another cause other than the
allegations and… the loss of market share in Dr. Robicheaux’s report that is taken from
[Plaintiff] by [Defendant].
(Doc. # 69-10, 24:14-25:6).
Mr. Lovoy further believes that Defendant’s alleged false advertising resulted in a $6.7
million in profits for Defendant. (Doc. # 69-10 at p. 94). He has further opined which of
Defendant’s sales were related to the alleged false advertising in a similar fashion. In describing
his methodology, “I looked at… when the [14 grams of protein] claims were made and then
accounted for the sales during that time – during the time period which those claims were in the
market”. (Doc. # 69-10, 138:21-139:7).
1. Mr. Lovoy’s Opinion that Defendant’s Alleged False Advertising Caused
Plaintiff’s Injuries is Unreliable and is Not Supported by a Reliable
The court concludes that Mr. Lovoy’s testimony regarding the cause of Plaintiff’s
financial injury is not based on sufficient facts or data and is not a product of reliable principles
and methods. Mr. Lovoy’s methodology simply involved calculating all of Plaintiff’s sales
declines following 2012, and then reducing that amount by sales of any product Plaintiff’s
representative admitted in his deposition were not directly affected by Defendant’s presence in
the nut butter market. (Doc. # 69-10, 101:1-5).
In assessing possible causes of Plaintiff’s financial harm, Mr. Lovoy’s methodology
analyzed only the parties’ financial records, and did not consider any of a number of potential
outside sources that may have affected Plaintiff’s sales. (Doc. # 69-10, 137:7-10). Mr. Lovoy
did not analyze the total nut butter market size or Plaintiff’s share of that market. (Doc. # 69-10,
30:7-32:2). He did not analyze the effect Plaintiff’s salmonella recall had on its sales11 or any
consumer sales trends prior to 2012. (Doc. # 69-10, 129:8-21; 131:2-8; 97:23-98:5). In making
his determination, Mr. Lovoy did not interview any of Plaintiff’s customers (Doc. # 69-10,
61:17-19), and admitted that he cannot otherwise determine why a particular customer would
choose to buy less from Plaintiff. (Doc. # 69-10, 91:1-7).
Notably, in a Lanham Act false advertising case, there is a heightened risk associated
with causation testimony that ignores the competitive market as a whole. 3M Innovative Props,
Co., 361 F. Supp. 2d at 972. (“In a suit for money damages where a defendant misrepresented its
own product but did not specifically target a competing product, plaintiff may only be one of
many competitors, and without proof of causation and specific injury each competitor might
receive a windfall unrelated to its damage.”). Further, as mentioned above, an expert’s testimony
regarding causation is not reliable when the expert fails to take into account numerous other
factors relevant to the cause of Plaintiff’s alleged injury. Bracco Diagnostics, Inc., 627 F. Supp.
Mr. Lovoy’s proposed testimony that Defendant’s advertising caused Plaintiff’s injuries
relies merely on assumptions. As such, Mr. Lovoy’s methodology for establishing causation is
unreliable. While Mr. Lovoy assumed that a causal connection existed between Defendant’s
alleged false statements and Plaintiff’s damages, he provided no data to support such a
conclusion, and failed to account for other relevant factors affecting Plaintiff’s sales.
Mr. Lovoy mentioned the recall in his expert report, and stated that because the recall caused a temporary
loss in sales volume, Defendant’s profits, not Plaintiff’s lost sales, should be used as a benchmark for calculating
damages. (Doc. # 69-10, p. 94). While this may be the case, Mr. Lovoy made no attempt to determine or calculate
which of Plaintiff’s lost sales were attributable to the recall and which lost sales were attributable to Defendant’s
alleged false advertising.
Defendant’s Motion for Summary Judgment is Due to be Granted
Defendant has also moved for summary judgment in this case (Doc. # 56), arguing that
Plaintiff cannot put forth sufficient evidence on the key issue of causation.12 Defendant further
argues that Plaintiff and Defendant are not direct competitors, and that Plaintiff’s lack of
evidence establishing causation deprives Plaintiff of standing.
Under the Lanham Act, a plaintiff can recover (1) defendant’s profits, (2) any damages
sustained by the plaintiff, and (3) the costs of the action. 15 U.S.C. §1117(a). The elements of a
false advertising claim under the Lanham Act are:
(1) the ads of the opposing party were false or misleading, (2) the ads deceived, or had
the capacity to deceive, consumers, (3) the deception had a material effect on purchasing
decisions, (4) the misrepresented product or service affects interstate commerce, and (5)
the movant has been—or is likely to be—injured as a result of the false advertising.
Johnson & Johnson Vision Care, Inc. v. 1–800 Contacts, Inc., 299 F.3d 1242, 1247 (11th
Notably, “[t]he final element of a Lanham Act false advertising claim is that the false
advertising caused injury to plaintiff.” Air Turbine Tech., Inc. v. Atlas Copco AB, 295 F. Supp.
2d 1334, 1344 (S.D. Fla. 2003); see also Trilink Saw Chain, LLC v. Blount, Inc., 583 F.Supp.2d
1293, 1320 (N.D. Ga. 2008) (“[T]he plaintiff must demonstrate that the false advertisement
actually deceived or misled consumers, which in turn caused injury to the plaintiff.”). This
“causation” element can be established when the movant provides evidence linking the false
advertisement to consumers’ decisions not to purchase the movant’s product.13 See Ameritox,
In its Motion for Summary Judgment, Defendant does not contest that Plaintiff provided sufficient Rule
56 evidence for the other elements that Plaintiff is required to establish to make out a Lanham Act claim.
The court notes that courts may also presume causation where a defendant engages in deceptive
comparative advertising (i.e., advertising that occurs when a competitor directly compares its products with a
plaintiff’s products). Trilink Saw Chain, LLC v. Blount, Inc., 583 F.Supp.2d 1293, 1321 (N.D. Ga. 2008). In this
case, there is no allegation that Defendant compared its products to Plaintiff’s products. Instead, Plaintiff contends
that Defendant misrepresented the protein content of its own products.
Ltd. v. Millennium Labs., Inc., 2014 WL 1456347, at *8 (M.D. Fla. Apr. 14, 2014) (finding that
causation of actual damages cannot be shown simply by evidence that one party began missing
financial projections while the alleged offending party began exceeding sales projections).
When a false advertisement is literally false, rather than being literally true but
misleading, the court may presume that consumer deception occurred, and a plaintiff need not
present evidence of consumer deception. Johnson & Johnson Vision Care, Inc. v. 1-800
Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir. 2002). However, even where a defendant’s
statements are literally false and the court presumes consumer deception, a plaintiff must still
prove that the alleged false advertising caused the asserted damages (here, that consumers chose
Defendant’s products rather than those of Plaintiff). See PBM Prod., LLC v. Mead Johnson &
Co., 639 F.3d 111, 122 (4th Cir. 2011).
As discussed below, Plaintiff has not provided sufficient Rule 56 evidence establishing
that Defendant’s actions caused its injuries. Therefore, this opinion addresses causation (rather
than standing) and the proximate cause inquiry.14
The court does note that in addition to actual damages and disgorgement of Defendant’s profits, Plaintiff
seeks injunctive relief. More specifically, Plaintiff’s Second Amended Complaint seeks injunctive relief prohibiting
Defendant from engaging in ongoing false advertising, requiring Defendant to remove all false advertising, and
requiring corrective advertising to remedy the effects of Defendant’s advertising. (Doc. #36 at p. 19).
“[T]o have standing to obtain forward-looking relief, a plaintiff must show a sufficient likelihood that [it]
will be affected by the allegedly unlawful conduct in the future.” Wooden v. Bd. Of Regents of Univ. Sys. Of Ga.,
247 F.3d 1262, 1283 (11th Cir. 2001); see also City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75
L.Ed.2d 675 (1983) (“Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief… if unaccompanied by any continuing, present adverse effects.”).
Plaintiff’s Second Amended Complaint contends that Defendant falsely advertised its products by claiming
they contained 14 grams of protein per serving. (Doc. #36 at ¶¶ 20-23). The uncontradicted Rule 56 evidence
establishes that Defendant reformulated its products in 2014, and changed its labeling to reflect a protein content of
12 grams of protein per serving. (Doc. # 69-5, 47:3-20). No evidence has been presented that Defendant has
advertised its products as containing 14 grams of protein since the 2014 labeling change. As such, the court finds
that a grant of injunctive relief would be improper in this case.
1. Plaintiff Has Provided Sufficient Rule 56 Evidence Creating a Genuine Issue of
Material Fact as to Whether Plaintiff and Defendant are Direct Competitors
Defendant argues that Plaintiff cannot establish causation in part because Defendant and
Plaintiff are not direct competitors. (Doc. # 88 at p. 13). Defendant asserts that it is undisputed
on this record that the parties’ products have different nutritional profiles and are sold in
different flavors and argues that Defendants’ nut butters are not capable substitutes for
Plaintiff’s, and vice versa. (Doc. # 88 at p. 17). Defendant further argues that the Rule 56
evidence shows that the parties’ have different marketing efforts and strategies, and this indicates
that they are not direct competitors. (Doc. # 88 at p.16). The court disagrees.
First, there is no requirement that a plaintiff prove that it is a direct competitor with a
defendant in order to succeed on a Lanham Act false advertising case. See, Lexmark Int'l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1391 (2014) (rejecting a test that would
provide standing under the Lanham Act only to direct competitors of the defendant).
Nonetheless, Defendant argues that the differences between Plaintiff and Defendant are so vast
that they are vying for different consumers and markets, and therefore no action of Defendant
could have harmed Plaintiff.
The Rule 56 evidence establishes that Plaintiff and Defendant both sell premium nut
butter products which are distinguishable from “traditional” nut butters based on their purported
health benefits and increased protein content. Further, while the parties market their products
differently, those products are all available at stores that sell products intended to promote
healthy living. Of course, this is not to say that certain specific consumers may not compare and
qualitatively (or quantitatively) consider these respective products as distinct while they are
making particularized purchasing decisions. But, on the whole, the record indicates that there is
a question of disputed fact as to whether the parties are direct competitors, and a grant of
summary judgment based solely on the differences between the parties would be improper.
2. Plaintiff Has Not Provided Rule 56 Evidence Establishing Causation as an
Element of a Lanham Act Claim.
Although there is sufficient evidence that Plaintiff and Defendant compete (as Plaintiff
alleges), the same cannot be said with respect to the key element of causation in this case.
a. Lost Profits
As mentioned above, Plaintiff seeks relief in the form of recovery of its lost profits. (Doc.
#36). When a plaintiff claims damages in lost profits, it must establish that it actually lost sales
as a result of the false advertisement. See William H. Morris Co. v. Group W, Inc., 66 F.3d 255
(9th Cir. 1995); Labware, Inc. v. Thermo Labsystems, Inc., 2005 WL 1541028, at *12 (E.D. Pa.
June 29, 2005) (granting summary judgment and finding that “[a]ctual damages cannot exist
without a nexus between a false advertisement and an adverse purchasing decision.”).
The evidence that Plaintiff and its experts have presented is simply not sufficient for a
trier of fact to find causation (i.e., that Defendant’s alleged false advertisement caused Plaintiff
to lose sales) under the Lanham Act.
As addressed above, Dr. Robicheaux and Mr. Lovoy
The court finds it significant that, in its Response in Opposition to Defendant’s Motion for Summary
Judgment, Plaintiff said of its failure to address the issue of causation independently: “Plaintiff has never addressed
the issue of proximate cause independently, as it was the Plaintiff’s opinion Proximate Cause was so intuitive and
asserted through other issues.” (Doc. #76 at p. 25-26). Plaintiff argues that evidence supports a finding that
Defendant’s protein content claims were literally false, and as such injury in fact and causation may be assumed.
(Doc. #76 at p.14).
As mentioned above, once a court deems an advertisement to be literally false (as opposed to being literally
true, but misleading), the court may presume that consumer deception occurred, and the movant need not present
actual evidence of consumer deception. Johnson & Johnson Vision Care, Inc., 299 F.3d at 1247. This presumption
applies to consumer deception claims (i.e., the assertion that consumers were deceived by Defendant’s protein
content claims); however, it does not allow a claimant to wholly ignore causation.
Causation may only be presumed in limited instances. Courts presume causation and financial harm when
a defendant uses comparative advertising, and directly compares its product to the plaintiff’s product. See, N. Am.
Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1227 (11th Cir. 2008). Similarly, courts may presume that a
defendant’s actions caused a plaintiff’s injuries in “two-player market” cases as well as cases involving trademark
infringement. See, Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 259-60 (2d Cir. 2014); Tally-Ho, Inc. v. Coast
Cmty. Coll. Dist., 889 F.2d 1018 (11th Cir. 1989).
have not provided reliable testimony regarding causation, and their testimony on the issue is due
to be stricken. But, even if this were not the case, and the court were to consider their testimony
(and, to be sure, the court has found their testimony is inadmissible) there would still be no
genuine issue of material fact regarding causation in this case.
The evidence Plaintiff has presented details the purported false advertising, as well as the
characteristics of the parties’ and the products they sell. Regarding the element of causation,
Plaintiff largely relies on circumstantial evidence and the assumption, based on the similarities of
the parties’ products and the claims Defendant made in its advertising, that consumers chose
Defendant’s products over Plaintff’s products based on Defendant’s advertising. Plaintiff has
presented Rule 56 evidence suggesting that both Defendant and Plaintiff sell high protein nut
butters, which are further fortified to appeal to health-conscious consumers. (Doc. # 69-1, 25:318, 96:10-15; Doc. # 69-5, 29:11-30:21). Plaintiff has further presented record evidence
suggesting that Defendant advertised its products as containing 14 grams of protein per serving,
when in fact they did not. (Doc. # 65-1, 60:5-15). Plaintiff also presented Rule 56 evidence that
over the time period in question, Plaintiff suffered a decrease in sales figures while Defendant’s
sales increased. (Doc. # 69-10, Appendices 1-3).
However, this alone is not sufficient to support a finding that Defendant’s alleged false
advertising was the cause of Plaintiff’s injury here. This is because what is missing is any
evidence connecting a misrepresentation by Defendant to the drop in Plaintiff’s sales. In order to
survive summary judgment, a plaintiff must provide substantial evidence not just that Plaintiff
suffered damages, but that those damages were caused by Defendant’s alleged false
The present case does not fit into one of the above categories, and Plaintiff has presented no evidence
suggesting that the court should presume that Defendant’s alleged false statements caused Plaintiff’s injury.
advertisement. See Air Turbine Tech., Inc. F. Supp. 2d at 1344; Synygy v. Scott-Levin, 51 F.
Supp. 2d 570, 577 (E.D. Pa. 1999).
In this case, Defendant has presented evidence that Plaintiff’s injuries were not caused by
Defendant’s alleged false advertisements, and instead any lost profits Plaintiff suffered were
caused by other factors. (Doc. # 69-5, 23:12-23, 47:5-49:8, 122:20-124:8; Doc. # 69-10). As
such, Rule 56(c) requires Plaintiff to go beyond the pleadings and designate specific facts
showing that there is such a nexus and therefore a genuine issue for a jury on the issue of
causation. See Celotex, 477 U.S. at 324. But, here, Plaintiff has put forth no summary judgment
evidence indicating there is a nexus between the alleged false advertising and Plaintiff’s loss of
sales. Indeed, Plaintiff presented no Rule 56 evidence that a single consumer chose to buy
Defendant’s products instead of Plaintiff’s products because of Defendant’s alleged false
advertisement. See Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir.
1958) (noting that while the plaintiff need not prove every single buyer who was diverted to the
false advertising competitor, plaintiff must make an evidentiary showing of some diverted sales).
And, of equal importance, Plaintiff’s evidence fails to account for other relevant factors that may
have influenced Plaintiff’s sales besides the alleged false advertisement. Both Plaintiff’s
representative and Dr. Robicheaux admit that there are a number of product attributes, not just a
product’s purported protein content, that influence buyers’ decisions. (Doc. # 69-5, 96:23-97:5;
Doc. # 69-11, 97:19-21).
Thus, a simple comparison of the Parties’ respective sales positions alone does not
establish that Defendant’s alleged false advertising caused Plaintiff’s injury. But that is all
Plaintiff has done here. In contending that its lost sales are attributable to Defendant’s alleged
false advertisement, Plaintiff has not accounted for alternative reasons for Defendant’s growth or
alternative justifications for Plaintiff’s losses.
Both Plaintiff’s owner and Dr. Robicheaux
conceded that Defendant’s appearance on the television show Shark Tank would have a positive
impact on Defendant’s marketing. (Doc. # 69-5, 98:6-9; Doc. # 69-11, 123:15-21).
Similarly, Plaintiff’s assumption of causation fails to account for other factors besides
Defendant’s alleged false advertising that may have impacted Plaintiff’s sales. The Rule 56
evidence indicates that during the relevant time period, Plaintiff experienced a decline in sales
with respect to certain customers who never stocked Defendant’s products. (Doc. # 69-5, 124:9124:17). Further, Plaintiff recalled its products in 2012 due to a salmonella contamination at one
of its manufacturers’ plants. (Doc. # 69-5, 47:5-49:13). This recall required Plaintiff to stopping
selling its products for several months, which resulted in further lost sales for Plaintiff. (Doc. #
69-5, 47:5-49:13). Of course, Plaintiff need not exclude every possible reason it lost sales in
order to establish causation. However, Plaintiff’s failure to provide evidence excluding other
reasons for its lost sales is problematic, particularly given the limited evidence it provides to
For the foregoing reasons, the court finds that Defendant’s Motion for Summary
Judgment is due to be granted as to Plaintiff’s request for actual damages.
b. Disgorgement of Defendant’s Profits
Plaintiff further seeks disgorgement of Defendant’s profits. (Doc. # 36). In its Motion for
Summary Judgment, Plaintiff contends that in order to obtain a disgorgement of Defendant’s
profits, Plaintiff need only prove Defendant’s gross sales, after which the burden shifts to
Defendant to prove which of its sales were not due to the alleged false advertisements.
In a Lanham Act case, an award of a defendant’s profits is “appropriate where: (1) the
defendant’s conduct was willful and deliberate; (2) the defendant was unjustly enriched; or (3) it
is necessary to deter future conduct.” Optimum Technologies, Inc. v. Home Depot, U.S.A.,
Inc., 217 Fed.Appx. 899, 902 (11th Cir. 2007). Further, “in assessing profits[,] the plaintiff shall
be required to prove defendant’s sales only; defendant must prove all elements of cost or
deduction claimed.” Burger King Corp. v. Mason, 855 F.2d 779, 781 (11th Cir. 1988).
While this is the case, a plaintiff is not entitled to disgorgement until the plaintiff has
proved causation. Ameritox, Ltd. v. Millennium Labs., Inc., 2014 WL 1456347, at *9 (M.D. Fla.
Apr. 14, 2014). As such, a plaintiff is only entitled to apportionment of a defendant’s profits
after providing evidence to establish that the alleged false advertising caused some injury to the
plaintiff. Id., citing Rexall Sundown, Inc. v. Perrigo Co., 707 F. Supp. 2d 357, 362 (E.D.N.Y.
2010) (Reasoning that a plaintiff cannot obtain an accounting of profits when the plaintiff cannot
demonstrate an injury caused by defendant’s actions).16
There is a Substantial Question as to Whether Plaintiff Lacks Standing to
Assert its Lanham Act Claim.
Finally, in addition to proving the above-listed elements, a plaintiff must demonstrate, as
an initial matter, that it has standing to assert a false advertising claim under the Lanham Act.
The Supreme Court has adopted a two part test for determining “statutory” standing in Lanham
Act cases. Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388-89
(2014). First, a plaintiff must demonstrate that his interests “fall within the zone of interests
protected by the law invoked.” Id. at 1388. (internal citation omitted). Under the Lanham Act,
this means that a plaintiff “must allege an injury to a commercial interest in reputation or sales”
in order to fall within the statutory zone of interests. Id. at 1389. Second, in order to have
standing, a plaintiff must demonstrate that its injuries were proximately caused by violations of
See Burndy Corp. v. Teledyne Indus., Inc., 748 F.2d 767, 772 (2d Cir. 1984) (finding that an order for
accounting is typically “limited to situations in which the defendant’s profits represent unjust enrichment derived
from diversion of business that clearly would otherwise have gone to the plaintiff.”).
the Lanham Act. Id. at 1390. This second showing requires a demonstration that the harm
alleged has a sufficiently close connection to the conduct the statute prohibits. Id. To establish
proximate cause, “a plaintiff suing under § 1125(a) ordinarily must show economic or
reputational injury flowing directly from the deception wrought by the defendant’s advertising;
and that that occurs when deception of consumers causes them to withhold trade from the
plaintiff.” Id. at 1391.
Notably, when standing is raised at the summary judgment stage (rather than on a motion
to dismiss), a plaintiff cannot rest on “mere allegations,” but instead must set forth specific Rule
56 evidence establishing standing. Bischoff v. Osceola Cty., Fla., 222 F.3d 874, 878 (11th Cir.
2000). Even in a standing analysis, disputed facts must be construed in the light most favorable
to the plaintiff. Id.
As mentioned above, Plaintiff has not provided evidence that Defendant’s alleged false
advertising caused injury to Plaintiff. The court notes that (1) “a direct application of the zoneof-interests test and the proximate-cause requirement supplies the relevant limits on who may
sue” in a Lanham Act case and (2) a plaintiff must “ordinarily show economic or reputational
injury flowing directly from the deception wrought by the defendant’s advertising” in order to
have standing. Lexmark Int'l, Inc., 134 S. Ct. at 1391. The parties have not provided, and the
court has not located, any Eleventh Circuit case discussing whether the factual showing required
to support proximate causation at summary judgment is the same or similar to the factual
showing required to support causation. Without intending to conflate the two, the court notes
that at a minimum Lexmark International, Inc. requires that, at the summary judgment stage, a
plaintiff must provide some evidence from which a reasonable juror could conclude that its
injuries were proximately caused by the defendant. See Paleteria La Michoacana, Inc. v.
Productos Lacteos Tocumbo S.A. De C.V., 69 F. Supp. 3d 175, 216 (D.D.C. 2014),
reconsideration denied, 79 F. Supp. 3d 60 (D.D.C. 2015). Plaintiff has provided no such
evidence and is not entitled to relief under the Lanham Act.17
For all these reasons, Defendant’s Motion for Summary Judgment (Doc. # 56) is due to
be granted. The court finds that no genuine issues of material fact remain for trial as to
Plaintiff’s claims and the relief that Plaintiff seeks, and that Defendant is entitled to judgment as
a matter of law. Accordingly, Plaintiff’s Motion to Strike Helen McDaniel as Expert Witness
(Doc. # 49), Motion to Exclude Trial Testimony of Michael R. Solomon, Ph.D. as Expert
Witness (Doc. # 61), and Motion for Summary Judgment (Doc. # 97) are moot. The court will
enter an order contemporaneously herewith granting Defendant’s Motion for summary judgment.
DONE and ORDERED this November 16, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
This is especially the case with regard to Plaintiff’s request for disgorgement of Defendant’s profits.
While Plaintiff cites pre-Lexmark caselaw for the proposition that it need not establish causation in order to receive
an award of Defendant’s profits, Lexmark International, Inc. requires that Plaintiff provide sufficient Rule 56
evidence of proximate cause at the summary judgment stage, which Plaintiff has failed to do. See 134 S.Ct. at 139394.
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