World Kitchen, LLC v. The American Ceramic Society, Richard C. Bradt, Richard L. Martens, Peter Wray
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable John W. Darrah on 9/15/2015. Mailed notice(sxw, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WORLD KITCHEN, LLC,
Plaintiff,
v.
THE AMERICAN CERAMIC SOCIETY,
RICHARD C. BRADT, RICHARD L. MARTENS,
and PETER WRAY,
Defendants.
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Case No. 12-cv-8626
Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff World Kitchen, LLC filed a complaint alleging violations of the Illinois Uniform
Deceptive Trade Practices Act (“DTPA”) and common law trade disparagement against
Defendants, The American Ceramic Society (“ACS”), Richard C. Bradt, Richard L. Martens, and
Peter Wray. In January 2013, Defendants moved to dismiss Plaintiff’s Complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6) and the Illinois Citizens
Participation Act (“ICPA”). On September 19, 2013, Defendants’ Motion was denied. Plaintiff
then filed its First Amended Complaint, dismissing the common law claim and proceeding under
one cause of action under the DTPA for injunctive relief. On January 13, 2014, the Court
granted Plaintiff’s Motion to Strike Defendants’ Affirmative Defenses and Portions of Amended
Answer and allowed Defendants to file their Amended Answer and Affirmative Defenses.
Plaintiff moved again to strike Defendants’ affirmative defenses. The Motion was granted in
part and denied in part. Defendants now move for summary judgment against Plaintiff pursuant
to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Motion is denied.
LOCAL RULE 56.1
Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts
as to which the party contends there is no genuine issue for trial.” Ammons v. Aramark Uniform
Servs., 368 F.3d 809, 817 (7th Cir. 2004). Local Rule 56.1(b)(3) requires the nonmoving party
to admit or deny every factual statement proffered by the moving party and to concisely
designate any material facts that establish a genuine dispute for trial. See Schrott v.
Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). Pursuant to Local Rule
56.1(b)(3)(C), the nonmovant may submit additional statements of material facts that “require
the denial of summary judgment.” Local Rule 56.1(b)(3)(C) further permits the nonmovant to
submit a statement “of any additional facts that require the denial of summary judgment. . . .” To
the extent that a response to a statement of material fact provides only extraneous or
argumentative information, this response will not constitute a proper denial of the fact, and the
fact is admitted. See Graziano v. Vill. of Oak Park, 401 F.Supp.2d 918, 936 (N.D. Ill. 2005).
Similarly, to the extent that a statement of fact contains a legal conclusion or otherwise
unsupported statement, including a fact that relies upon inadmissible hearsay, such a fact is
disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997).
BACKGROUND
The following facts are taken from the parties' statements of undisputed material facts
submitted in accordance with Local Rule 56.1.
Plaintiff World Kitchen, LLC is a limited-liability company with its principal place of
business in the state of Illinois. It is one of the leading manufacturers and distributors of
glassware, dinnerware and other kitchen products, including the Pyrex line of glassware. ACS is
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a not-for-profit organization in Westerville, Ohio. ACS publishes the American Ceramic Society
Bulletin (“Bulletin”) and maintains a blog, Ceramic Tech Today. ACS maintains that both the
publication and the blog cover new developments and research in the ceramics and glass
industries. In the September 2012 issue of the Bulletin, ACS published “Shattering Glass
Cookware” by Defendants Richard C. Bradt and Richard L Martens. ACS also published an
entry on its Ceramic Tech Today blog, called “Hell’s kitchen: Thermal stress and glass cookware
that shatters” and issued a news release titled “New paper addresses cause of shattering glass
cookware.” The article, blog post, and news release were written about soda lime glass
cookware, such as Plaintiff’s American-made Pyrex glass cookware, and its thermal stress
resistance.
Plaintiff asserts that the September 2012 Bulletin story, the related blog post, and
promotional news release made alleged false and misleading representations deceiving readers,
ACS members, consumers, and the media to believe that American-made heat-strengthened soda
lime glass cookware has a lower thermal stress resistance value. This stress resistance quantifies
the glass cookware product’s ability to resist breakage due to abrupt temperature change and the
quality of that product. Plaintiff argues that these representations violate the DTPA. Defendants
argue that the article, blog post, and news release sought to provide a scientific explanation for
the possible cause of explosions of soda lime glass cookware and educate ACS readers about the
properties of such cookware and how it reacts under various conditions. Defendants further
contend that these statements were scientific conclusions and not commercial speech, thus the
DTPA does not apply. For the reasons set forth below, Defendants’ Motion is denied.
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LEGAL STANDARD
Summary judgment should be granted where the “pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issues as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving
party is responsible for informing the Court of what in the record or affidavits demonstrates the
absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its burden, the nonmoving party must go beyond the face of the
pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to
demonstrate, through specific evidence, that there is still a genuine issue of material fact.
Celotex, 477 U.S. at 322-27; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The mere
existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient;
there must be evidence on which the jury could reasonably find” for the nonmovant. Anderson,
477 U.S. at 252.
Disputed facts are material when they might affect the outcome of the suit.
First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for
summary judgment, a court must view all inferences to be drawn from the facts in the light most
favorable to the nonmoving party. Anderson, 411 U.S. at 247-48; Popovits v.
Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will
not suffice. Matsushita, 475 U.S. at 586. If the evidence is merely colorable or is not
significantly probative or is no more than a scintilla, summary judgment may be granted.
Anderson, 411 U.S. at 249–250.
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ANALYSIS
Relevant Law
Plaintiff alleges violations of subsections 510/2(a)(7), (8) and (12) of the DTPA,
which state in pertinent part:
A person engages in a deceptive trade practice when, in the course of his or her
business, vocation, or occupation, the person: . . . (7) represents that goods or services
are of a particular standard, quality, or grade or that goods are a particular style or
model, if they are of another; (8) disparages the goods, services, or business of another
by false or misleading representation of fact; . . . [or] (12) engages in any other
conduct which similarly creates a likelihood of confusion or misunderstanding.
815 ILCS § 510/2(a)(7), (8), (12). Illinois state courts have held that, in effect, the DTPA
codified the common law tort of commercial disparagement. See Conditioned Ocular
Enhancement, Inc. v. Bonaventura, 458 F. Supp. 2d 704, 710 (N.D. Ill. 2006) (citing Crinkley v.
Dow Jones & Co., 385 N.E.2d 714, 719 (1978)). To state a claim under the DTPA alleging
commercial disparagement, Plaintiff must show that Defendants’ statements “disparage[d] ... the
quality of [his] goods or services.” Conditioned Ocular, 458 F. Supp. 2d at 710.
Plaintiff’s DTPA Claim
Defendants argue that the DTPA only regulates false, misleading commercial speech
and that the speech at issue is noncommercial. Plaintiff argues that the commercial speech
doctrine does not apply to DTPA claims between private parties, and that to prevail on its claim,
it need not prove whether the alleged false and misleading representations are commercial or
noncommercial. Plaintiff cites to no authority supporting its argument that the statements in
question do not have to be commercial speech to be in violation of the DTPA, nor does it provide
an alternative definition of commercial speech to contradict Defendants’ assertions. Plaintiff
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provides no support for its argument against the application of the definition of commercial
speech offered by Defendants.
Other courts in the Northern District of Illinois have found that the DTPA is a
constitutionally permissible “regulation prohibiting false, misleading or deceptive commercial
speech.” Flentye v. Kathrein, 485 F. Supp. 2d 903, 919 (N.D. Ill. 2007) (quoting People ex. rel.
Hartigan v. Maclean Hunter Publ'g Corp., 457 N.E.2d 480, 488 (1983)). This is echoed by the
Seventh Circuit’s statement that “the DTPA is a statute generally thought indistinguishable from
the Lanham Act except of course in its geographical scope.” Additionally, the Lanham Act is
“limited to misrepresentations in commercial advertising or promotion.” Neuros Co. v. KTurbo,
Inc., 698 F.3d 514, 521-23 (7th Cir. 2012). Due to the similarities between the DTPA and the
Lanham Act, courts have held that the legal inquiry under the Lanham Act is the same as the
legal inquiry under the DTPA. MJ & Partners Rest. Ltd. P'ship v. Zadikoff, 10 F. Supp. 2d 922,
929 (N.D. Ill. 1998). While it is true that Plaintiff does not bring this claim under the Lanham
Act in addition to the DTPA, the concept remains the same: the DTPA, like the Lanham Act,
regulates false and misleading commercial speech.
Defendants cite to the definition of commercial speech established by the Supreme
Court and applied by the Seventh Circuit, citing to Bolger v. Youngs Drug Products Corp.,
463 U.S. 60, 65 (1983), for the proposition that commercial speech is that which “does no more
than propose a commercial transaction.” However, the Seventh Circuit has held that “other
communications also may constitute commercial speech notwithstanding the fact that they
contain discussions of important public issues.” Jordan v. Jewel Food Stores, Inc., 743 F.3d 509,
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516 (7th Cir. 2014); see also Conn. Bar Ass'n v. United States, 620 F.3d 81, 93–94 (2d Cir.
2010) (explaining that the commercial-speech doctrine encompasses more than the core notion of
“speech which does ‘no more than propose a commercial transaction’ ”) (quoting Bolger, 463
U.S. at 66); Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 112 (6th Cir. 1995) (noting the “core”
definition of commercial speech but also observing that the commercial-speech category is not
limited to speech that does no more than propose a commercial transaction). Relevant
considerations include “whether: (1) the speech is an advertisement; (2) the speech refers to a
specific product; and (3) the speaker has an economic motivation for the speech.”
See United States v. Benson, 561 F.3d 718, 725 (7th Cir.2009) (citing Bolger, 463 U.S. at
66-67). No one factor is sufficient, and not all are necessary. Jordan v. Jewel Food Stores, Inc.,
743 F.3d 509, 517 (7th Cir. 2014).
It is clear that the speech at issue is not an advertisement, and while the Bulletin article
referred to American-made, heat-strengthened soda lime glass cookware, it did not refer to a
specific product, or a specific producer’s product. Plaintiff also argues that Defendants’ claim,
that no one associated with the article had a professional or economic interest in disparaging
World Kitchen’s American-made glass cookware, is unsupported by statements of fact and
disputes any statements made by Defendants that could support that claim1. While not all three
Bolger factors are necessary to establish that Defendants’ article is commercial speech, when
construing all facts and drawing all reasonable inferences from those facts in favor of the
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Defendants submitted a Declaration of David S. Korzenik and exhibits in support of
their reply. This declaration was not submitted with Defendants’ Rule 56.1 statement of facts
and was not submitted as a reply to additional facts submitted by the nonmoving party.
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non-moving party, there is an issue of material fact as to whether Defendants had an economic
motivation for the speech at issue. Therefore, Defendants’ Motion for Summary Judgment is
denied.
CONCLUSION
For the reasons discussed above, Defendants’ Motion for Summary Judgment [96] is
denied.
Date: September 15, 2015
______________________________
JOHN W. DARRAH
United States District Court Judge
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