FieldTurf USA Inc. et al v. TenCate Thiolon Middle East, LLC et al

Filing 395

ORDER granting 354 Motion for Partial Summary Judgment dismissing Counts 2-9 of defendants' Counterclaim; denying 358 Defendants' Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 5/10/2013. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION
FIELDTURF USA INC., et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 4:11-CV-50-TWT

TENCATE THIOLON MIDDLE
EAST, LLC formerly known as
Mattex Leisure Industries, et al.,
Defendants.

OPINION AND ORDER

This is a breach of contract action. It is before the Court on the Plaintiffs’
Motion for Partial Summary Judgment Dismissing Counts 2-9 of Defendants’
Counterclaim [Doc. 354] and the Defendants’ Motion for Summary Judgment [Doc.
358]. For the reasons set forth below, the Plaintiffs’ Motion for Partial Summary
Judgment [Doc. 354] is GRANTED and the Defendants’ Motion for Summary
Judgment [Doc. 358] is DENIED.
I. Background
This suit arises from three contracts to supply polyethylene fiber used to make
artificial grass turf for athletic fields. In 2003, FieldTurf USA Inc., FieldTurf Inc., and
FieldTurf Tarkett SAS (collectively, the “Plaintiffs” or “FieldTurf”) began
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negotiations to purchase monofilament fiber from Mattex Leisure Industries
(“Mattex”). In September 2005, the Plaintiffs entered into a supply agreement under
which Mattex would provide monofilament fiber called Evolution exclusively to the
Plaintiffs (the “2005 Agreement”). (See Defs.’ Mot. for Summ. J., Ex. I). FieldTurf
bought Evolution from Mattex for use in construction of artificial grass turf systems
around the globe. (Compl. ¶ 1). In February 2006, Mattex issued a warranty
guaranteeing Evolution’s performance for six to nine years. (See id., Ex. J). The
parties entered into another supply agreement in November 2006 (the “2006
Agreement”). (See Compl., Ex. C). The 2006 Agreement included the MLI Limited
Warranty Version 1-June 2006 (the “2006 Warranty”). (See id., Ex. M).
In February 2007, Royal TenCate N.V., a Dutch company, acquired certain
assets of Mattex pursuant to an asset purchase agreement (the “Asset Purchase
Agreement”). (See Defs.’ Mot. for Summ. J., Exs. N, O, & P). Royal TenCate then
nominated its rights and obligations under the Asset Purchase Agreement to TenCate
Thiolon Middle East, LLC (“TenCate ME”). In July 2008, TenCate ME, Polyloom
Corporation of America (“Polyloom”), TenCate Thiolon B.V. (“TenCate B.V.”), and
the Plaintiffs entered into a third supply agreement whereby TenCate provided
FieldTurf with Evolution yarn (the “2008 Agreement”). (See Defs.’ Mot. for Summ.

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J., Ex. T). TenCate terminated the 2008 Supply Agreement as of March 2, 2011.
(Compl. ¶ 76; Answer ¶ 76).
FieldTurf alleges that in 2009 and 2010 it began receiving complaints about the
durability of the artificial turf fields it had installed using TenCate’s Evolution fiber.
(Compl. ¶ 85). According to FieldTurf, its own subsequent testing demonstrated that
the Evolution yarn was degrading prematurely. (Compl. ¶¶ 96-124). In December
2010, FieldTurf announced the release of Revolution, a fiber product that would
compete with Evolution. (Counterclaim ¶ 38).
On March 1, 2011, the Plaintiffs sued TenCate ME, Polyloom, and TenCate
B.V. (collectively, the “Defendants” or “TenCate”) for breach of contract, breach of
warranty, and fraud. See [Doc. 1]. The Defendants answered and filed counterclaims
alleging commercial disparagement, intentional interference with business relations,
civil conspiracy, and unfair competition. See [Doc. 54]. The Court dismissed the
Plaintiffs’ claims for breaches of the 2005 and 2006 Agreements against Polyloom
and TenCate B.V. and dismissed the Defendants’ counterclaims for commercial
disparagement, civil conspiracy, as well as claims for unfair competition under various
state laws while allowing the unfair competition under Georgia law claim to remain.
See [Docs. 53 & 86]. The Plaintiffs now move for summary judgment on the
Defendants’ counterclaims for false advertising, trademark infringement, federal

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unfair competition, unfair competition under Georgia law, common law trademark
infringement, slander, libel, and tortious interference with business relations. The
Defendants move for summary judgment on the Plaintiffs’ claims for fraud, breach
of contract, breach of express warranty, breach of implied warranty, and on the
Plaintiffs’ requests for damages.
II. Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond
the pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

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III. Discussion
A.

The Plaintiffs’ Motion for Partial Summary Judgment
1.

False Advertising

FieldTurf argues that the Defendants’ claim for false advertising must fail
because the Defendants have not shown that any FieldTurf advertisements were
literally false. To prevail on a false advertising claim under the Lanham Act, TenCate
“must establish that (1) the advertisements of the opposing party were false or
misleading; (2) the advertisements 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.” Hickson Corp.
v. Northern Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (quoting Johnson &
Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir.
2002)). “When determining whether an advertisement is literally false or misleading,
courts must analyze the message conveyed in full context, and must view the face of
the statement in its entirety.” Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1308
(11th Cir. 2010) (quoting 1-800 Contacts, 299 F.3d at 1248 (internal marks and
alterations omitted)). “The distinction between literally false and merely misleading
is often a ‘fine line.’” Id. (citing American Med. Corp. v. Axiom Wordwide, Inc., 522

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F.3d 1211, 1225 n.12 (11th Cir. 2008)). “The ambiguity of the statement at issue ...
is significant,” and “[s]tatements that have an unambiguous meaning, either facially
or considered in context, may be classified as literally false.” Id. at 1308-09 (citing
United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir. 1996)). “If the court
deems an advertisement to be literally false, then the movant is not required to present
evidence of consumer deception,” but if the court concludes the advertisement is “true
but misleading, then the movant is required to present evidence of deception.” Id. at
1319 (quoting 1-800 Contacts, 299 F.3d at 1247). TenCate argues that FieldTurf’s
advertisements about Revolution were literally false when they claimed that
Revolution was the “industry’s strongest fiber,” that Revolution had “the strongest
ultraviolet inhibitor in the industry,” that Revolution was “the most natural looking”
fiber, and that Revolution “has the strongest tuft bind.” (See Defs.’ Resp. in Opp’n
to Pls.’ Mot. for Partial Summ. J., Ex. 3).
a.

Industry’s Strongest Fiber

TenCate argues that FieldTurf’s use of the phrase “industry’s strongest fiber”
with respect to Revolution is false advertising. TenCate argues the advertisement
must refer to tensile strength and provides evidence that Revolution does not contain
the strongest tensile strength in the industry. (Willard Dep. at 356-57). However, the
global group director of TenCate grass admitted in his deposition that fiber “strength

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can be measured in many ways” and that the assertion that the fiber is the strongest
in the industry could be understood in several ways. (See Pls.’ Mot. for Partial Summ
J., Ex. 2, Vliegen Dep. at 34, 167-68). The Court concludes, based on the competing
evidence, that the phrase “industry’s strongest fiber” is not susceptible to only one
interpretation. Because the statement is ambiguous and could cover several different
meanings of “strength” aside from “tensile strength,” TenCate has not shown that the
statement was literally false. See Osmose, 612 F.3d at 1309 (“As the meaning of the
statement becomes less clear, however, and it becomes susceptible to multiple
meanings, the statement is more likely to be merely misleading.”). Because TenCate
has not offered any evidence of consumer deception, FieldTurf’s motion for partial
summary judgment with respect to the false advertising claim stemming from
FieldTurf’s “industry’s strongest fiber” promotion should be granted. See id. at 1319
(requiring evidence of consumer deception when the advertisement at issue is only
misleading).
b.

Strongest Ultraviolet Inhibitor

TenCate argues that FieldTurf’s claim that Revolution contains the “strongest
ultraviolet inhibitor technology in the industry” is false. TenCate has shown that the
UV stabilizer in Revolution was “better or equal to what others were using” in the
industry. (See Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial Summ. J., Ex. 1, Gill. Dep.

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at 162-63). This evidence, however, does not establish that FieldTurf’s advertisement
was literally false, only that the advertisement was phrased in a manner which may
have misled consumers about the strength of Revolution’s ultraviolet inhibitor
technology. However, TenCate has not come forward with evidence of consumer
deception to support a claim that the advertisement was unlawfully misleading. See
Osmose, 612 F.3d at 1319 (requiring evidence of consumer deception when the
advertisement at issue is only misleading); Hickson, 357 F.3d at 1260 (stating that the
burden is on the party bringing the claim to show the advertisement is false).
Accordingly, FieldTurf’s motion for partial summary judgment should be granted
with respect to its use of the phrase “strongest ultraviolet inhibitor.”
c.

Most Natural Looking Fiber1

TenCate argues that FieldTurf’s advertisement that Revolution is the “most
natural looking fiber” in the industry is literally false. FieldTurf contends the phrase
is merely subjective “puffing.” “‘Puffing’ is exaggerated advertising, blustering, and
boasting upon which no reasonable buyer would rely and is not actionable under [the
Lanham Act].” Atlanta Allergy & Asthma Clinic, P.A. v. Allergy & Asthma of

1

TenCate did not assert the false advertising claim with respect to the “natural
looking” advertisement in its counterclaim, but did assert it in its response to
FieldTurf’s motion. (See Counterclaim ¶¶ 1-131). Although the claim may not be
properly brought, the Court nonetheless concludes that the advertisement including
the phrase “natural looking” were non-actionable puffing.
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Atlanta, LLC, 685 F. Supp. 2d 1360, 1380 (N.D. Ga. 2010) (quoting Southland Sod
Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997)). The Court finds that
the “most natural looking” advertisement was merely puffing. Although a TenCate
expert testified that turf fiber becomes more natural looking by minimizing gloss and
scattering light reflection, the same expert admitted in his deposition that one cannot
prove whether any one fiber type is more natural looking than another fiber type. (See
Defs.’ Resp. in Opp’n to Pls.’ Mot. for Partial Summ. J., Ex. 31, at 9-11; Pls.’ Reply
in Support of Mot. for Partial Summ. J., Ex. 8, Auguste Dep. at 554-55); Procter &
Gamble Co. v. Kimberly-Clark Corp., 569 F. Supp. 2d 796, 801 (E.D. Wis. 2008)
(noting that “it is impossible to demonstrate conclusively (for Lanham Act purposes)
whether one brand of diapers ‘fits more naturally’”). Accordingly, because TenCate
has not shown that FieldTurf’s advertisement was false or that it was even misleading,
and because the Court concludes the statement was puffery, FieldTurf’s motion for
partial summary judgment should be granted in this respect.
d.

Strongest Tuft Bind

FieldTurf seeks summary judgment on TenCate’s claim that advertisements
stating that Revolution had the “strongest tuft bind” were false because TenCate does
not have standing to challenge the advertisements. FieldTurf argues that “tuft bind”
relates to “how hard it is to pull a tuft of fiber out of its backing” and has nothing to

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do with the fiber itself. (See Pls.’ Br. in Supp. of Pls.’ Mot. for Partial Summ. J., at
25). “To demonstrate Article III standing, a plaintiff must allege that (1) he has
suffered an actual or threatened injury, (2) the injury is fairly traceable to the
challenged conduct of the defendant, and (3) the injury is likely to be redressed by a
favorable ruling.” Phoenix of Broward, Inc. v. McDonald’s Corp., 489 F.3d 1156,
1161 (11th Cir. 2007) (citing Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.
Broward County, 450 F.3d 1295, 1304 (11th Cir. 2006)). Additionally, the Eleventh
Circuit also applies prudential standing limitations to false advertising claims under
the Lanham Act. See Phoenix of Broward, 489 F.3d at 1163. In assessing prudential
standing, the Court must consider:
(1) The nature of the plaintiff’s alleged injury: Is the injury of a type that
Congress sought to redress in providing a private remedy for violations
of the Lanham Act? (2) The directness or indirectness of the asserted
injury; (3) The proximity or remoteness of the party to the alleged
injurious conduct; (4) The speculativeness of the damages claim; [and]
(5) The risk of duplicative damages or complexity in apportioning
damages.
Id. at 1163-64 (quoting Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc.,
165 F.3d 221, 233 (3d Cir. 1998)). The focus of the Lanham Act is to protect
“commercial interests that have been harmed by a competitor’s false advertising.” Id.
at 1168 (quoting Conte Bros., 165 F.3d at 234). The Court concludes that the

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prudential standing limitations counsel against TenCate’s standing for this claim, and
therefore does not address the Article III standing requirements.
Here, TenCate has shown that its commercial interests may have been harmed
because FieldTurf’s advertisements about “tuft bind” may have led end-users to
purchase turf through FieldTurf rather than through a TenCate-supplied turf producer,
and this evidence counsels toward prudential standing. (See Defs.’ Br. in Opp’n to
Pls.’ Mot. for Partial Summ. J., Ex. 3, part 8, at ALMA00001039, Ex. 18). However,
the first factor does not counsel heavily toward granting prudential standing because
the advertisements at issue promotes Revolution in a variety of ways and there is no
indication that the brief mention of an “industry leading 9lbs. of tuft bind” persuaded
a purchaser more than any other promotion of Revolution.

(See id. at

ALMA00001036-40). The second factor, concerning the directness of the injury,
counsels slightly against prudential standing because FieldTurf and TenCate are not
generally competing to sell the same products to the same end-users, and “the second
factor weighs in favor of standing in cases where ‘one competitor directly injures
another by making false statements about its own goods and thus influences customers
to buy its product instead of the competitor’s product.” Phoenix of Broward, 489 F.3d
at 1169 (quoting Logan v. Burgers Ozark Country Cured Hams Inc., 263 F.3d. 447,

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460 (5th Cir. 2001)).2 The third factor counsels toward prudential standing because
TenCate is a commercial entity competing in the general market for artificial turf and
is therefore connected to the effects of the false advertising, although FieldTurf sells
complete artificial turf fields to end-users and TenCate does not. See id. at 1169-70
(noting that consumers and others with attenuated connections to the market do not
satisfy the third factor). The fourth factor, however, counsels against prudential
standing because determining the profits that FieldTurf secured and the revenues that
TenCate lost due to the “tuft bind” claims involves too much speculation. FieldTurf’s
products include far more than just “tuft bind,” and “it requires too much speculation
to conclude that an ascertainable percentage of both the increase in [FieldTurf’s] sales

2

TenCate argues that FieldTurf’s advertisements constituted deceptive,
comparative advertising and that “a presumption of causation and harm should apply
to claims for actual damages when a defendant disseminates willfully deceptive,
comparative advertising.” Trilink Saw Chain, LLC v. Blount, Inc., 583 F. Supp. 2d
1293, 1321 (N.D. Ga. 2008). However, the advertisements relating to “tuft bind” that
TenCate points to does not engage in deceptive, comparative advertising. The fourpage pamphlet only says that third-party fiber manufacturer’s “quality began to
suffer” and repeats Revolution’s motto: “This is no evolution. This is revolution.”
(See Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial Summ. J., Ex. 3, part 8, at
ALMA00001036-40). With respect to tuft bind, the advertisements only state that
Revolution includes the “strongest tuft bind in the industry” but does not compare the
tuft bind with the tuft bind of any competitors, including TenCate. (See id.) Because
the “tuft bind” advertisements do not directly compare Revolution with any TenCate
product, they are not “willfully deceptive, comparative advertising” that earns a
presumption of causation and harm. See Trilink Saw Chain, LLC, 583 F. Supp. 2d at
1321.
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and the concomitant decrease in [TenCate’s] sales [during the advertising period] is
directly attributable to [FieldTurf’s] misrepresentations” about tuft bind when many
factors can influence an end-user’s decision to purchase an artificial turf field. See id.
at 1171. The fifth factor also weighs against prudential standing because, should the
Court grant standing to TenCate, “every competitor in the market [for artificial turf
and its components] could sue,” thus creating the risk of duplicative damages. Id. at
1172-73 (quoting Procter & Gamble v. Amway Corp., 242 F.3d 539, 564 (5th Cir.
2001)); Logan, 263 F.3d at 461 (concluding the fifth factor supports prudential
standing when the plaintiff was the only plaintiff who could bring a claim for false
advertising against the defendant). Accordingly, because the weight of the prudential
standing factors, including the speculativeness of any damages claim, counsels against
allowing TenCate to assert its claim for false advertising with respect to “tuft binds,”
the Court concludes TenCate does not have standing and FieldTurf’s motion should
be granted in this respect. Therefore, the Court will grant summary judgment to
FieldTurf on all of TenCate’s claims relating to false advertising.
2.

Trademark Infringement and Unfair Competition

The Plaintiffs seek summary judgment on the Defendants’ counterclaims for
Trademark Infringement under the Lanham Act, 15 U.S.C. § 1114, unfair competition
under the Lanham Act, unfair competition under the Georgia Unfair and Deceptive

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Trade Practices Act, O.C.G.A. § 10-1-370, and common law infringement. The
Plaintiffs argue that the Defendants are unable to show that the Plaintiffs’ usage of
their “Revolution” trademark has caused any confusion in relation to the Defendants’
“Evolution” trademark, and the lack of consumer confusion defeats all of the
Defendants’ claims for infringement and unfair competition. See Tana v. Dantanna’s,
611 F.3d 767, 782-83 (11th Cir. 2010) (noting that the elements to establish a claim
under Georgia’s UDTPA and federal infringement claims were the same); Kason
Indus. v. Component Hardware Group, 120 F.3d 1199, 1203 (11th Cir. 1997) (noting
that federal unfair competition under the Lanham Act and under Georgia’s UDTPA
are “governed by the same standard”); SCQuARE Int’l, Ltd. v. BBDO Atlanta, Inc.,
455 F. Supp. 2d 1347, 1365 (N.D. Ga. 2006) (applying “likelihood of confusion”
standard to Georgia common law infringement claim).
To determine whether there is a likelihood of confusion, the Eleventh Circuit
applies a seven factor test: “(1) strength of the mark alleged to have been infringed;
(2) similarity of the infringed and infringing marks; (3) similarity between the goods
and services offered under the two marks; (4) similarity of the actual sales methods
used by the holders of the marks, such as their sales outlets and customer base; (5)
similarity of advertising methods; (6) intent of the alleged infringer to misappropriate
the proprietor’s good will; and (7) the existence and extent of actual confusion in the

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consuming public.” Tana, 611 F.3d at 774-75 (quoting Welding Servs., Inc. v.
Forman, 509 F.3d 1351, 1360 (11th Cir. 2007)). The Court concludes that only one
of these factors weighs in favor of a likelihood of confusion and the others weigh
heavily against it. TenCate has established it has rights to the Evolution trademark
and its “Evolution 3GS” mark became incontestable in 2011, indicating the mark is
presumptively strong. (See Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial Summ. J.,
Exs. 47-50); Dieter v. B&H Indus., 880 F.2d 322, 329 (11th Cir. 1989). In this case,
however, the Plaintiffs have overcome that presumption. At the time that the
Plaintiffs introduced the Revolution product, the Evolution fiber had been sold
exclusively to FieldTurf in the United States. With trivial exceptions, the Evolution
product had not been advertised or promoted. Therefore, the mark should be
considered as a weak mark. The difference between “Evolution” and “Revolution”
is only a single letter, and the words are pronounced similarly. But the purchasers of
both products are sophisticated purchasers of technical products who are not likely to
be deceived by the similar sound of two very different words. Soon after the parties
ended their agreements, FieldTurf rolled out its Revolution product with the motto:
“It’s not evolution, it’s Revolution.” (See Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial
Summ. J., Ex. 3, at BCS00001090). But it makes no sense to think that the Plaintiffs
were trying to get its customers to think that they were getting the Evolution product

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that FieldTurf was saying was defective. FieldTurf and TenCate deal with consumers
at different stages of the purchasing process. FieldTurf sells artificial turf to athletic
facilities. TenCate sells fiber to other manufacturers of artificial turf; that is,
FieldTurf’s competitors. Finally, the evidence of actual confusion is de minimis. As
noted above, the buyers of both products are sophisticated purchasers of highly
technical products who are unlikely to be confused.
3.

Defamation Claims

The Plaintiffs move for summary judgment on the Defendants’ counterclaims
for slander, libel, and tortious interference.
a.

Slander

FieldTurf argues that TenCate’s claim for slander should fail because TenCate
has provided no competent evidence, only hearsay, of any slanderous statements made
by FieldTurf. In Georgia, slander or oral defamation requires proof that the statement
“was (1) false, (2) malicious, and (3) published.” Davita Inc. v. Nephrology Assocs.,
P.C., 253 F. Supp. 2d 1370, 1375 (S.D. Ga. 2003) (citing Information Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1228 (11th Cir. 2002)); see also
O.C.G.A. § 51-5-4. TenCate’s evidence of false statements consists of an email from
Senior Accounts Manager Matt Riggs discussing several projects and mentioning that
Robert Hawke told Riggs he went to the FieldTurf Architect Roundup in Tampa and

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heard the FieldTurf president give a speech saying that FieldTurf’s “suppliers were
doing a ‘bait and switch’ by submitting top quality products but actually substituting
much lower quality yarns upon delivery.” (See Defs.’ Resp. in Opp’n to Pls.’ Mot.
for Partial Summ. J., Ex. 25). TenCate contends FieldTurf often used the phrase “baitand-switch” to describe its allegations in this lawsuit. (Id., Ex. 4). Next, TenCate
references an article in the Beaumont Enterprise quoting a local school
superintendent’s statement that he had been informed by FieldTurf that TenCate
supplied FieldTurf with a “bad batch of turf” and citing a statement from FieldTurf’s
marketing department “confirming its belief that it was supplied with ‘defective
fiber.’” (Id., Ex. 22).
The statements relayed in the Riggs email and in the Beaumont Enterprise
article are inadmissible hearsay that cannot be used to defeat summary judgment.
See Draper v. Reynolds, 278 Ga. App. 401, 406 (2006) (concluding, at summary
judgment stage, that inadmissable hearsay could not support claim for slander). There
is no testimony from Robert Hawke himself concerning the statement, only the
emailing summarizing what Hawke apparently informed Riggs that he had heard.
Likewise, there is no testimony from the superintendent mentioned in the Beaumont
Enterprise article, only the article itself which summarizes what the superintendent
told the Enterprise he had been told by FieldTurf. These hearsay statements cannot

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support a claim for slander. See id. (concluding that alleged defamatory statement
supporting claim for slander was inadmissible hearsay because there was no
deposition or affidavit testimony from the witness who relayed the statement to the
plaintiff). Further, the statement from FieldTurf’s marketing department relayed in
the Beaumont Enterprise article is a statement of belief or opinion that cannot support
a claim for slander. See Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 811
(2011) (“as a general rule, a mere statement of opinion is not considered defamatory”).
Accordingly, because TenCate has not provided sufficient evidence of a false
statement, FieldTurf’s motion for partial summary judgment should be granted on
TenCate’s counterclaim for slander.
b.

Libel

TenCate argues that statements FieldTurf made about this lawsuit, in particular
statements contained in a form letter sent to FieldTurf contacts, were libelous.
(See Defs.’ Br. in Opp’n. to Pls.’ Mot. for Partial Summ. J., Ex. 4). “A libel is a false
and malicious defamation of another, expressed in print, writing, pictures, or signs,
tending to injure the reputation of the person and exposing him to public hatred,
contempt, or ridicule.” Fine v. Communication Trends, Inc., 305 Ga. App. 298, 302
(2010) (quoting O.C.G.A. § 51-5-1(a)). FieldTurf contends that the allegedly libelous
statements it made concerning this lawsuit were privileged attempts to protect its

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interest and therefore non-actionable. “‘Statements made with a good faith intent on
the part of the speaker to protect his or her interest in a matter in which it is
concerned’ are deemed privileged.” Id. (quoting O.C.G.A. § 51-5-7). To earn the
defense of privilege, FieldTurf must show “good faith, an interest to be upheld, a
statement properly limited in its scope, a proper occasion, and publication to proper
persons.” Id. (quoting Rabun v. McCoy, 273 Ga. App. 311, 316 (2005)).
In Fine, the defendant charged with libel had sent a letter to its clients informing
them of pending litigation against the plaintiff alleging slander. The letter only
described the issuance of a temporary restraining order against the plaintiff and
outlined the defendant’s allegations that the plaintiff had disseminated misinformation
and unlawfully solicited its clients. The defendant’s president testified with respect
to the slander claim that he only provided the letter to clients whose business
relationships were at risk. The court concluded that the letter was properly limited in
scope because it only described the restraining order and restrictive covenants, and
was only sent to a limited set of customers. Id. at 303.
Here, there is evidence suggesting that the letter that Gill wrote describing the
lawsuit and FieldTurf’s allegations was widely disseminated. Eric Daliere directed
FieldTurf’s North American Sales Team to reach out to the design community to
address concerns clients may have about the litigation in an email attaching the form

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letter about the lawsuit. (See Defs.’ Br. in Opp’n. to Pls.’ Mot. for Partial Summ. J.,
Ex. 6 at FT00143437). Likewise, Darren Gill testified the salesmen had the discretion
to send the letter describing the lawsuit to whomever they saw fit. (Gill Dep. at 22021). However, the letter here is limited in scope as the letter in Fine. Here, FieldTurf’s
form letter repeats the allegations that “Mattex/TenCate changed its fiber formula and
the manufacturing process that it used to create the fiber,” and then goes on to state
that “this issue ... has everything to do with a third party supplier that, in simple terms,
did not live up to what they were providing us. Thus the reason FieldTurf Revolution
was born.” (See Defs.’ Br. in Opp’n. to Pls.’ Mot. for Partial Summ. J., Ex. 4).
Essentially, the letter simply repeats the allegations of the lawsuit. Protecting its
reputation and the quality of its ongoing production in this manner was privileged.
4.

Tortious Interference with Business Relations

FieldTurf argues that TenCate’s claim for tortious interference with business
relations should fail because TenCate has not shown the statements FieldTurf made
were non-privileged and because TenCate has not shown it suffered any financial loss
due to FieldTurf’s statements. “The essential features of a cause of action for tortious
interference with business relations are that the defendant, acting improperly, without
privilege, and with the malicious intent to injure plaintiff, induces a third party not to
enter into or to continue a business relationship with plaintiff, which causes plaintiff

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financial injury.” Lively v. McDaniel, 240 Ga. App. 132, 134 (1999) (citing Jenkins
v. General Hosps. of Humana, 196 Ga. App. 150, 151 (1990)). Here, the Court has
concluded that FieldTurf’s statements concerning the lawsuit and the unrolling of
Revolution were privileged. Furthermore, TenCate has not demonstrated that it
suffered financial injuries due to statements made by FieldTurf. TenCate points to the
declaration of a former account manager for Polyloom who contacted three customers
in an effort to sell Evolution should it be released on the market. Each of these three
customers declined to wholeheartedly adopt Evolution for various reasons, saying it
has “a lot of baggage,” saying they did not know the extent to which Evolution’s
image had been damaged, and saying it would not independently promote Evolution.
(See Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial Summ. J., Ex. 24, Riggs Decl. ¶¶ 68). The statements that Riggs relates from these customers do not indicate that the
customers were affected by any FieldTurf statement, whether about the lawsuit or a
TenCate product.
TenCate next argues that three sales, to the Aledo Independent School District,
Barron Collier High School, and Alma College, were lost due to the allegedly
defamatory statements made by FieldTurf. First, TenCate argues that the Aledo
Independent School District chose to buy FieldTurf’s Revolution product instead of
its Duraspine product which contained Evolution. However, the emails between

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FieldTurf and Aledo show that FieldTurf was preparing to replace degrading fibers
at Aledo’s field pursuant to its warranty but that, due to the pending litigation between
FieldTurf and TenCate, FieldTurf was required to give TenCate an opportunity to
inspect the field before the repairs were made. (See Defs.’ Br. in Opp’n to Pls.’ Mot.
for Partial Summ. J., Ex. 13). The emails further show that FieldTurf offered Aledo
several options, including Duraspine and Revolution, and that Aledo was “leaning
towards” and ultimately purchased the Revolution product. (Id., Exs. 17, 18). There
is nothing in the emails to indicate that Aledo’s decision was swayed by FieldTurf’s
statements about TenCate or the lawsuit, and in the email confirming the agreement
to replace the field, FieldTurf never mentions TenCate, and FieldTurf promotes
Revolution only by saying it has outstanding test results and is “manufactured by
FieldTurf and not a third party supplier.” (Id., Ex. 17). Similarly, although the
purchaser at Barron Collier ultimately chose Revolution to replace its field despite
initially leaning toward Duraspine, the allegedly libelous information it received about
the lawsuit that may have influenced its decision was in direct response to the
facilities manager’s questions: “May I have a copy of the analysis performed by
FieldTurf that influenced the decision to market the upgrade material (Revolution) as
an 8 year product (will last 8-10 years)?” and “Was there a comparison done between
Revolution and the material currently installed on Barron Collier HS’s field or other

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manufacturer’s material?” (See Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial Summ.
J., Ex. 10). FieldTurf’s responses to these direct inquiries do not constitute improper
communications capable of supporting a claim for tortious interference with business
relations. See Lively, 240 Ga. App. at 134 (requiring that disseminator of tortious
statements be “acting improperly”).
Finally, TenCate contends that it lost a sale to Alma College due to FieldTurf’s
defamatory statements. However, TenCate’s evidence only shows a lengthy email
discussion in which Alma representatives are seeking information about the durability
of variously colored turfs, in which FieldTurf sales staff respond by informing Alma
that TenCate’s warranties only cover three years of colored turf (including by copying
emails from TenCate confirming the warranty period), and in which Jamie MacDonald
recommends that Alma choose Revolution because it has an eight year warranty on
its colored turf. (See id., Ex. 19). There is no indication that these emails involved
an improper statement because the TenCate warranties did in fact only last three years
and, further, there is no indication that Alma chose Revolution for any reason other
than to obtain the longer warranty. Accordingly, the Defendants have not shown that
they suffered financial injury from any improper statements made by the Plaintiffs,
and the Plaintiffs’ motion for partial summary judgment with respect to tortious
interference with business relations should be granted.

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B.

The Defendants’ Motion for Summary Judgment
1.

Fraud

The Defendants argue for summary judgment on two separate grounds with
respect to the Plaintiffs’ claim for fraud. First, the Defendants argue that TenCate ME
did not assume liability for claims for fraud when it acquired Mattex. Second, the
Defendants argue that the Plaintiffs have not produced evidence to satisfy the
elements to prove fraud.
In its December 2012 Order, the Court held that it could not determine whether
TenCate ME assumed liability for fraud claims stemming from representations Mattex
made prior to its acquisition by TenCate, only that the Asset Purchase Agreement
seemed to have “no limitation on the types of claims for which TenCate [] ME
assumed liability.” See [Doc. 53], at 19. TenCate now contends it has produced
sufficient evidence to show that it did not assume liability for claims connected to
Mattex’s alleged fraud. TenCate argues that the Asset Purchase Agreement and its
references to the Adjustment Statement and the Data Room documents reviewed
during the merger demonstrate that TenCate ME only assumed a limited amount of
liability for claims brought against Mattex. The Court concludes that the Asset
Purchase Agreement is ambiguous and that, relying on parol evidence to resolve the

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ambiguity, the contract did require TenCate ME to assume liability for the fraud
alleged here.
“Generally, a purchasing corporation does not assume the liabilities of the
seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in
fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the
purchaser is a mere continuation of the predecessor corporation.” Bullington v. Union
Tool Corp., 254 Ga. 283, 284 (1985). FieldTurf argues that the Asset Purchase
Agreement was an agreement to assume liability for Mattex’s fraud. TenCate argues
that the agreement specifically limits liabilities for claims to those already pending
against Mattex and that the assumption of liability under the agreement is limited to
the liabilities contemplated in the “Data Room” documents and in the Adjustment
Statement.
Section 2.3 of the Asset Purchase Agreement provides for Exclusions and
Assumed Liabilities. (See Defs.’ Mot. for Summ. J., Ex. O, at 10). While these
provisions state that “the Purchaser shall not assume any liability or obligation in
respect of the Business which is not specifically assumed by it under this Agreement,”
section 2.3 further states that “the Purchaser agrees and acknowledges that from the
Transfer Date it shall assume all Assumed Liabilities and all Defective Product
Claims.” (See id. §§ 2.3(B) & (C)). “Assumed Liabilities” are defined as “all

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liabilities of the Business arising prior to or as a consequence of the conduct of
Business prior to Completion to the extent that the same are provided for in the
Adjustment Statement.” (Id. at 2). The Adjustment Statement is a statement of
Adjusting Working Capital prepared pursuant to schedule 5 of the Asset Purchase
Agreement which provides specific directions for valuating inventory and receivables.
(Id. at 2, 42-44; Ex. P). According to the agreement’s definitions, “‘Data Room’
means the documents disclosed in the data room set up by the Vendor at the Premises
and any other documents disclosed to the Purchaser or its advisers, in each case, as set
out in the index in the form attached as schedule 11.” (Id. at 3).
Contrary to TenCate’s contention, with respect to the “Data Room” documents,
there is nothing on the face of the contract connecting the Assumed Liabilities with
the Data Room documents. Further, the documents in the Data Room include “Details
of any claim by or against the company” which only lists four apparently pending
matters and makes no mention of liability for future or unasserted claims. (Id. at 85,
§ 2.10; Ex. Q). Likewise, the Adjustment Statement merely lists “Provision for
Warranties & Claims” and gives a figure of 325.029 AED, without providing any
details on the actual claims included. (Defs.’ Mot. for Summ. J., Ex. P). The Data
Room documents and the Adjustment Statement do not, therefore, demonstrate that
TenCate only agreed to assume pending liabilities. Indeed, the Asset Purchase

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Agreement specifically requires the contracting parties to continue to address ongoing
liabilities:
The Purchaser covenants that on or after Completion it will execute and
deliver all such further instruments as the Vendor may from time to time
reasonably request in order to effect the release and discharge in full of
the Vendor and the Investors in respect of any Assumed Liability or
Defective Product Claim, the Purchaser’s assumption of that Assumed
Liability or Defective Product Claim and the substitution of the
Purchaser as the primary obligor of that Assumed Liability or Defective
Product Claim on a non-recourse basis to the Vendor or the Investors.
(Id. § 2.3(E)). This suggests that the parties contemplated the emergence of future
claims because it describes a procedure by which the selling parties can effectively
move the liability to the purchaser, TenCate. In sum, because there is nothing in the
agreement connecting the Assumed Liabilities or the Adjustment Statement with the
Data Room documents, and because there is nothing in any of the subsections
indicating that specific subsets of claims were not to be included, the contract does not
unambiguously state that liabilities outside those contemplated in the Data Room
documents were not assumed by the purchaser.
Although the Asset Purchase Agreement does not seem to limit the types of
claims for which TenCate assumed liability, the contract is somewhat ambiguous and
the Court will look to parol evidence to resolve the ambiguity. See Taylor Freezer
Sales Co. v. Hydrick, 138 Ga. App. 738, 739 (1976). Both parties have provided parol
evidence supporting their interpretations of the contract. The Defendants point to an
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email between Mattex’s Marco Reefman and TenCate ME’s Jaap Lock discussing
“provisions for claims.” (See Defs.’ Mot. for Summ. J., Ex. S). These emails lay out
an “overview of claims and other pay outs done in 2006 and the remaining claim
provision.” (Id.) Although this email lays out Mattex’s provisions to cover claims in
2006 and early 2007, it does not, as the Defendants contend, demonstrate that “the
sole intent of the parties was that TenCate was to accede to these specific claims.” (Id.
at 15). Rather, the email shows that Mattex was providing TenCate with information
on the claims it faced during 2006.
The Plaintiffs’ parol evidence is more compelling. In an email conversation
between Lock and Chris Turner, an attorney for TenCate on the transaction, Turner
warned that the “amount of Assumed Liabilities is not capped - As discussed,
ordinarily in an assets deal the liabilities would be retained by the vendor other than
specifically identified and capped liabilities. The [current] wording places a great
deal of risk on the Purchaser regarding the liabilities. (See Pls.’ Resp. in Opp’n to
Defs.’ Mot. for Summ. J., Ex. 52, at TENCATE0038351) (emphasis in original).
Lock responded that “[t]he intercompany liabilities must be excluded. That was
agreed. Other liabilities will be taken over indeed, but sufficient provisions/accruals
must be available to pay out those liabilities. If you would leave all liabilities at the
seller, you might have the risk that those claims will not be properly treated, since the

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seller has no interest anymore. That could hurt the continuity of the business as the
customer still considers TenCate to continue the business of Mattex.” (Id.) Further,
Marc Verleyen, a member of Mattex’s Board of Directors, testified in his deposition
that he was worried about his personal liability for future claims brought against
Mattex until April 2007 when TenCate assumed those liabilities. (See Pls.’ Resp. in
Opp’n to Defs.’ Mot. for Summ. J., Ex. 3, Verleyen Dep. at 156-57). The parol
evidence establishes that Mattex intended for TenCate to assume all future liabilities
for claims brought against Mattex, and that TenCate intended to assume these
liabilities so it could maintain positive relations with its customers. There is nothing
in the Asset Purchase Agreement suggesting that the claims TenCate ME assumed
liability for did not include FieldTurf’s claim for fraud. Therefore, TenCate can be
held liable for Mattex’s fraud, and the Defendants’ motion for summary judgment
should be denied on those grounds.
The Defendants also argue that the Plaintiffs have not provided sufficient
evidence of fraud to survive summary judgment. “[T]he common law tort of fraud
requires five elements: (1) a false representation by the defendant; (2) with scienter,
or knowledge of the falsity; (3) with intent to deceive the plaintiff or to induce the
plaintiff into acting or refraining from acting; (4) on which the plaintiff justifiably
relied; (5) with the proximate cause of damages to the plaintiff.” Prince Heaton

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Enters., Inc. v. Buffalo’s Franchise Concepts, Inc., 117 F. Supp. 2d 1357, 1360 (N.D.
Ga. 2000). The Court concludes the Plaintiffs have provided sufficient evidence to
create an issue of fact with respect to its fraud claim. First, the Plaintiffs have
provided evidence to show that Mattex provided samples and test results to FieldTurf
that were not the same as the product it ultimately sold to FieldTurf. (See, e.g., Pls.’
Resp. in Opp’n to Defs.’ Mot. for Summ. J., Ex. 19, Expert Report of Dr. Charles
Daniels, at 44-47; Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., Ex. 22, Willard
Dep. at 164-65 (confirming Dr. Daniels’ determination that the samples Mattex
provided contained five times more Uvinol than the samples Mattex provided to
FieldTurf as product)). The provisions of lower-performing turf following the
representations and test results of higher-performing turf, which induced FieldTurf to
order the turf, is sufficient to show a question of fact concerning misrepresentation,
scienter, intent to induce, and reliance. See Prince Heaton Enters., 117 F. Supp. 2d
at 1360. FieldTurf has also shown that the replacement costs on fields it built using
Mattex products will be substantial, creating an issue of fact to satisfy the final
element of fraud. (See Pls.’ Resp. to Defs.’ Mot. for Summ. J., Ex. 71, at 11, 18-19).
Accordingly, the Defendants’ motion for summary judgment should be denied on
those grounds.
2.

Breach of Contract

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The Defendants argue that the Plaintiffs have not shown the breaches of the
2005, 2006, and 2008 Agreements were more than de minimus. The parties agree that
Georgia law governs the breach of contract claims for the 2005 and 2006 Agreements.
“The elements for a breach of contract claim in Georgia are the (1) breach and the (2)
resultant damages (3) to the party who has the right to complain about the contract
being broken.” Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (2008) (citing Odem
v. Pace Academy, 235 Ga. App. 648, 653 (1998)). “[T]he breach must be more than
de minimus and substantial compliance with the terms of the contract is all that the
law requires.” Id. (citing Dennard v. Freeport Minerals Co., 250 Ga. 330, 332
(1982)).3 Here, FieldTurf has produced some evidence that 167 of its fields have
failed due to the Evolution fiber’s performance. (See Skibell Decl. ¶ 2; Pls.’ Resp. to
Defs.’ Mot. for Summ. J., Ex. 19 at 7, 47-51). FieldTurf’s damages expert opines that
failures resulting from the Evolution fiber will amount to at least $21.3 million in

3

The 2008 Agreement is governed by New York law. (See Defs.’ Mot. for
Summ. J., Ex. T, at 11 ¶ E). “Under New York law, ‘the elements of a cause of action
to recover damages for breach of contract are (1) the existence of a contract, (2) the
plaintiff’s performance under the contract, (3) the defendant’s breach of the contract,
and (4) resulting damages.’” Jalee Consulting Group v. XenoOne, Inc., No. 11-civ4720, 2012 U.S. Dist. LEXIS 142056, at *22 (S.D.N.Y. Sep. 29, 2012) (quoting
Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806 (N.Y.
App. 2011)). Under the 2008 Agreement, as for the 2005 and 2006 Agreements, the
Plaintiffs have provided sufficient evidence to create an issue of fact with respect to
damages incurred as a result of the breach.
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damages. (Pls.’ Resp. to Defs.’ Mot. for Summ. J., Ex. 71, at 11, 18-19). Although
the Defendants argue these failures only amount to a small percentage of the
Evolution fields installed, the Plaintiffs’ evidence is sufficient to create an issue of fact
with respect to the breaches of the 2005, 2006, and 2008 Agreements. Accordingly,
the Defendants’ motion for summary judgment should be denied with respect to the
Plaintiffs’ claims for breach of contract.
3.

Statute of Limitations for Breach of Warranties

The Defendants argue that the four-year statute of limitations in Georgia, see
O.C.G.A. § 11-2-725, bars the Plaintiffs from bringing breach of warranty claims with
respect to the 2005, 2006, and 2008 Agreements. The parties signed a tolling
agreement on November 22, 2010, thus preserving any causes of action that accrued
before that date. (See Pls.’ Resp. in Opp.’n to Defs.’ Mot. for Summ. J., Ex. 62).
Both the 2006 Agreement and the 2008 Agreement were signed after November 22,
2006, so claims stemming from those warranties could not have been time-barred by
November 22, 2010. (See Compl., Ex. C, at 1 (showing the 2006 Agreement is dated
November 29, 2006); Defs.’ Mot. for Summ. J., Ex. T, at 1 (showing the 2008
Agreement is effective from July 1, 2008)).
The parties entered into the 2005 Agreement on September 1, 2005, and
FieldTurf received over 80 shipments of Evolution before the contract ended in

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December 2006. (See Defs.’ Mot. for Summ. J., Ex. U). In Georgia, “[a] breach of
warranty occurs when tender of delivery is made, except that where a warranty
explicitly extends to future performance of the goods and discovery of the breach must
await the time of such performance the cause of action accrues when the breach is or
should have been discovered.” O.C.G.A. § 11-2-725(2). The warranty in the 2005
Agreement extended for a minimum of six years and a maximum of nine years
following installation. (See Defs.’ Mot. for Summ. J., Ex. J). Thus, for the 2005
Agreement, the cause of action for the breach of warranty accrued when FieldTurf
should have discovered the breach. See O.C.G.A. § 11-2-725(2). The Defendants
argue that several emails sent by FieldTurf in early 2006 demonstrate that FieldTurf
was aware of the breaches of warranty. (See Defs.’ Mot. for Summ. J., Ex. Y).
However, this argument is belied by the fact that Mattex provided reassurances to
FieldTurf concerning the Evolution product later in 2006. In June 2006, after
FieldTurf had expressed concern about the degradation of the Plessis-Robinson field,
van Balen wrote an email to FieldTurf management stating that the “[c]hances that
this field has issues that are related to the yarn [the Evolution product] are almost
zero.” (See Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., Ex. 66). Van Balen
further stated that, “in spite of this Mattex want [sic] to resolve the issue as it is bad
promotion for FieldTurf Tarkett and for Mattex.” (Id.) These reassurances create an

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issue of fact as to whether FieldTurf should have been aware of the problems in the
Evolution yarn covered by the 2005 Agreement’s warranty prior to November 22,
2006. Accordingly, the Defendants’ motion for summary judgment should be denied
in this respect.
4.

Statute of Limitations for Fraud

The Defendants argue that the fraud claim arising from the 2005 Agreement is
barred by the four-year statute of limitation applicable in Georgia. See O.C.G.A. § 93-31. The parties signed a tolling agreement on November 22, 2010. (See Pls.’ Resp.
in Opp.’n to Defs.’ Mot. for Summ. J., Ex. 62). The Court concludes there is an issue
of fact whether the Plaintiffs should have been aware of the failure in the TenCate
fibers prior to November 22, 2006. See O.C.G.A. § 9-3-96 (“the period of limitation
shall run only from the time of the plaintiff’s discovery of the fraud”). As discussed
above, FieldTurf has provided evidence that, in June 2006, Mattex reassured FieldTurf
the problems FieldTurf was having with its Plessis-Robinson field were not related
to TenCate’s yarn, and at that time there was no reason for FieldTurf to question the
reassurances. (See Pls.’ Resp. in Opp.’n to Defs.’ Mot. for Summ. J., Ex. 66 at
TENCATE0007581-82). Accordingly, FieldTurf has created at least an issue of fact
as to whether it became aware of TenCate’s alleged fraud prior to November 22, 2006,
and summary judgment should be denied.

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5.

The Exculpatory Language in the 2006 Warranty

TenCate argues that FieldTurf’s claim for damages under the 2006 Warranty
and Agreement, whether for fraud or for the breach itself, must be limited to the cost
of the fibers. As noted in the Court’s Order on the Defendants’ motion to dismiss, the
2006 Warranty is governed by United Arab Emirates law. (See Defs.’ Mot. for
Summ. J., Ex. M ¶ 11). At issue is a clause in the warranty stating:
LIMITATION OF REMEDY AND LIABILITY: THE REMEDIES
SPECIFIED IN THIS LIMITED WARRANTY SHALL BE THE SOLE
MEANS OF REDRESS FOR THE PURCHASER WITH RESPECT TO
ANY CLAIM ARISING OUT OF PURCHASER’S PURCHASE OF
THE PRODUCTS. IN NO EVENT, REGARDLESS OF THE FORM
OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN
CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT,
MISREPRESENTATION OR OTHERWISE), SHALL MATTEX’S
LIABILITY TO PURCHASER AND/OR ITS CUSTOMERS FOR
DIRECT LOSSES, COSTS, DAMAGES, EXPENSES OR OTHER
LIABILITIES ARISING OUT OF OR CONNECTED WITH THIS
LIMITED WARRANTY EXCEED THE ORIGINAL PURCHASE
PRICE OF THE PRODUCTS.
IN NO EVENT SHALL MATTEX’S LIABILITY TO THE
PURCHASER OR ANY OTHER PARTY EXTEND TO INCLUDE
SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE
DAMAGES, OR ANY LOSS OF ANTICIPATED PROFITS, LOSS OF
USE, LOSS OF REVENUE AND COST OF CAPITAL.
(Id. ¶ 3). The parties have submitted affidavits from competing experts concerning
whether UAE law would enforce this exculpatory clause. Both experts agree that
“under the UAE Civil Law where the seller of goods commits fraud to induce the sale,

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and the buyer relies on the fraud in making the purpose, any limitations of liability
will not be enforced under UAE law.” (Nabeel Decl. ¶ 28; Second Wolfson Decl. ¶
10). TenCate’s expert, Tareq S. Nabeel, however, opines that the commercial code
of the UAE should take precedence over the civil code, and argues that the
commercial code places obligations on buyers when they receive defective products
and allows for reasonable limitations on liabilities between corporate entities. (Nabeel
Decl. ¶¶ 18-40). He also contends that the consumer protection law discussed by
FieldTurf’s expert has not been tested by the UAE courts and does not alter his
conclusion. (Id. ¶ 40). FieldTurf’s expert, Herbert S. Wolfson, contends that the
commercial code in the UAE is silent on limitations of liability for fraud and that the
provisions Nabeel contends address limitations on liability actually only address the
doctrines of substantial performance and rescission. (Second Wolfson Decl. ¶¶ 1520). Wolfson further contends that the consumer protection law, albeit a new law,
applies to business transactions and voids any contractual clauses limiting a
manufacturer’s liability for damages. (Id. at ¶¶ 24-30) (noting that the consumer
protection law applies to both juristic and physical persons).
The Court concludes that, based on the testimony of both experts, the clause in
the warranty removing liability for actions arising from fraud is void under UAE law.
Even assuming the commercial code takes precedence over the civil code in this

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situation, the portions of the commercial code cited by Nabeel, sections 110 and 111,
only state the obligations placed on a buyer when it receives defective goods.
(See Nabeel Decl. ¶¶ 24-27). These sections of the commercial code cited do not
address the validity of clauses seeking to limit liability for torts such as fraud. The
civil code, on the other hand, specifically states that “any condition purporting to
provide exemption from a harmful act should be void.” (Second Wolfson Decl. ¶ 22).
This code section would not permit TenCate/Mattex to avoid liability for fraud
through an exculpatory clause. Because Wolfson has provided statutory authority for
his proposition that limitations of liability for fraud are void, and because Nabeel has
provided no clearly contrary authority and no reason to doubt Wolfson’s contentions,
the Court concludes that the UAE law would not enforce the limitation of liability for
fraud contained in the 2006 Warranty.
However, the Court concludes that UAE law would permit the limitation on
contractual damages to the price paid by FieldTurf. (See Defs.’ Mot. for Summ. J., Ex.
M ¶ 3). Article 2 of the UAE commercial code provides that “Traders and commercial
activities shall be governed by the agreement entered into by the two contracting
parties unless such agreement contradicts an imperative commercial text,” suggesting
that the parties’ agreement is controlling. (Nabeel Decl. ¶ 24). Wolfson contends that
the consumer protection law would take precedence over the commercial code and

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void any limitation of liability. The text of the consumer protection law suggests that
the law would apply to this business transaction, even though the law has not been
frequently used by UAE courts. (See Second Wolfson Decl. ¶¶ 25-30). Nabeel,
however, notes that the consumer protection law provides the right of compensation
to a consumer “in accordance with the general principles of law in force.” (Nabeel
Decl. ¶ 41). Article 2 of the commercial code articulates the general principle that
contracts among commercial entities are controlling unless they “contradict an
imperative commercial text.” (Id. ¶ 24). Wolfson does not argue that the consumer
protection law is an “imperative commercial text” that would override the parties’
contract as written or that the consumer protection law would override the general
principle of law that agreements made by commercial entities are controlling in most
situations. Accordingly, FieldTurf’s recovery under the 2006 Warranty itself is
limited to the cost paid by FieldTurf.
6.

The Plaintiffs’ Damages

The Defendants offer several arguments to limit or preclude the Plaintiffs’
claims for damages. They argue that the Plaintiffs’ claims for damages for fraud are
barred by the merger clause in the 2006 Agreement, that the Plaintiffs’ damages in
general are limited to the cost of replacing the defective fibers, that the 2008
Agreement superseded the 2005 and 2006 Agreements and prevents the recovery of

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damages under the earlier agreements, and that the economic loss doctrine in Georgia
limits FieldTurf’s potential recovery.
First, the Defendants contend that any fraud action relating to the 2006
Agreement must fail because that agreement contained a merger clause stating that the
agreement and its warranty “represents the entire agreement of the parties and
supersedes any prior or contemporaneous agreements with respect” to the terms of the
agreement. (See Defs.’ Mot. for Summ. J., Ex. M ¶ 7). However, FieldTurf has
provided evidence suggesting that Mattex continued to make misrepresentations
concerning the Evolution product after making deliveries pursuant to the 2006
Agreement. (See Pls.’ Resp. in Opp.’n to Defs.’ Mot. for Summ. J., Ex. 66 at
TENCATE0007581-82). This evidence is sufficient to create an issue of fact as to
whether misrepresentations were made following the entering of the 2006 Agreement.
Next, the Defendants argue that the limitation of damages in the 2005
Agreement preclude the Plaintiffs from recovering the costs of removal and reinstallation of defective products and also limits the Plaintiffs’ recovery for fraud.
However, the limitation provision only limits the recovery available under the
warranty. (See 2005 Agreement, Ex. J, ¶¶ 4 & 5). There is nothing to suggest that the
provision also limits the recovery available for fraud or any other torts arising from
the agreement itself. See Willoughby Roofing & Supply Co. V. Kajima Intern., Inc.,

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776 F.2d 269, 270 n.2 (11th Cir. 1985) (noting “the totally independent nature of
claims for breach of contract and for the tort of fraud”). Accordingly, the damages for
fraud arising from the 2005 Agreement are not limited by the language in the
agreement limiting recovery under the warranty.
The Defendants also argue that the 2008 Agreement superseded the 2005 and
2006 Agreements. When multiple contracts are entered into by the same parties at
different times, “[a]n existing contract is superseded and discharged whenever the
parties subsequently enter upon a valid and inconsistent agreement completely
covering the subject-matter embraced by the original contract.” Wallace v. Bock, 279
Ga. 744, 746 (2005) (citing Hennessy v. Woodruff, 210 Ga. 742, 744 (1954)). Here,
the 2005 and 2006 Agreements cover different subject matter than the 2008
Agreement, namely the time period that they are intended to be in effect. (See Defs.’
Mot. for Summ. J., Ex. I, at 2 (noting that the 2005 Agreement runs until December
31, 2006); Compl., Ex. C, at 2 (noting that the 2006 Agreement runs until December
31, 2007); Defs.’ Mot. for Summ. J., Ex. T, at 1 (noting that the 2008 Agreement is
effective from July 1, 2008 through December 31, 2011)). Thus, the provision in the
2008 Agreement stating that the agreement “supersedes all prior written proposals,
negotiations, and/or communications between the parties relating to the Agreement”
does not indicate that the 2008 Agreement supplanted the 2005 and 2006 Agreements,

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only that the 2008 Agreement itself is fully integrated. (See Defs.’ Mot. for Summ.
J., Ex. T § XIV(F)). However, the limitations of liability contained in the 2008
Agreement are applicable to the breach of the 2008 Agreement itself, and the Plaintiffs
do not appear to argue otherwise. (See id. at § XIV(F)).
Finally, the Defendants argue that Georgia’s economic loss rule prevents
FieldTurf from recovering damages for field repairs and replacement costs because
that would permit the field owners to make double recoveries. (See Defs.’ Mot. for
Summ. J., at 36). FieldTurf contends there is no risk of double recovery because
TenCate has no contractual relationship with the field owners and made no
representations to the field owners. Indeed, FieldTurf contends the field owners could
bring claims against FieldTurf, but only FieldTurf can bring a claim against TenCate,
as they are the only parties in privity. TenCate did not respond to FieldTurf’s
contentions in its reply, and the Court agrees with FieldTurf’s analysis. See General
Electric Co. v. Lowe’s Home Centers, Inc., 279 Ga. 77, 80 (2005) (noting that the
economic loss rule is intended to prevent “duplicative liability [to multiple parties and
non-parties] for the same damage”). Accordingly, FieldTurf’s damages are not
limited by the economic loss doctrine.

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IV. Conclusion
For the reasons set forth above, the Plaintiffs’ Motion for Partial Summary
Judgment [Doc. 354] is GRANTED and the Defendants’ Motion for Summary
Judgment [Doc. 358] is DENIED.
SO ORDERED, this 10 day of May, 2013.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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