World Kitchen, LLC v. The American Ceramic Society, Richard C. Bradt, Richard L. Martens, Peter Wray

Filing 163

MEMORANDUM Opinion and Order. Signed by the Honorable John W. Darrah on 9/24/2015.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. On March 23, 2015, Defendants moved for summary judgment. The Motion was
denied. Plaintiff now moves for summary judgment of its DTPA claim for injunctive relief. For
the reasons set forth below, the Motion is denied.
BACKGROUND
The following facts are taken from the parties' statements of undisputed material facts
submitted in accordance with Local Rule 56.1.
World Kitchen, LLC is a limited liability company with its principle 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. Defendant
American Ceramic Society (”ACS”) is a not-for-profit organization in Westerville, Ohio.
ACS publishes the American Ceramic Society Bulletin (“Bulletin”) and maintains a blog,

Ceramic Tech Today. 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. The Bulletin article relies on, and refers to, thermal shock testing conducted by
Consumers Union and discussed in a January 2011 Consumer Reports article titled, “Glass
Bakeware That Shatters.” (SOF 14.)
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 truth or falsity of the publications is an issue of material fact, such that summary
judgment would be inappropriate1. For the reasons set forth below, Plaintiff’s Motion is denied.
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
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Defendants reiterate their argument that these statements at issue were scientific
conclusions and not commercial speech, thus the DTPA does not apply. This argument was
considered in a previous order in this case and will not be addressed here. (Dkt. 161.)
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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). 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. Popovits v. Circuit City Stores, Inc., 185 F.3d
726, 731 (7th Cir. 1999).
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)). The DTPA is 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)). 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.
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DTPA Claim
Plaintiff alleges that Defendants’ article, related blog post, and news release made
statements about Plaintiff’s Pyrex glass cookware that are false and misleading and that those
statements violate the DTPA. Specifically, Plaintiff’s claim that Defendants falsely state that the
thermal stress resistance of World Kitchen’s Pyrex glass cookware is 99° F and that the speech at
issue misrepresents the thermal shock testing conducted by Consumer Reports. It is undisputed
that the Bulletin article, blog post, and new release were made in the course of Defendants’
“business, vocation or occupation.” However, Defendants dispute the falsity of the statements
referred to by Plaintiff2.
Plaintiff’s argument is based on the following representations in the Bulletin article: 1)
multiple identifications of World Kitchen and Pyrex brand cookware in relation to shattering
glass cookware; 2) a picture of a 9 x 13 Pyrex glass cookware pan broken into pieces with the
caption, “Remnants of a soda lime silicate glass cookware failure, from Consumer Reports
testing”; 3) statements about the Consumer Reports thermal stress testing; and 4) representations
that World Kitchen’s Pyrex glass cookware has a thermal stress resistance of 99° F. The falsity
of all of these representations is disputed by Defendants, including the number of times Plaintiff
claims that Pyrex-brand cookware is mentioned in the article3.

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Plaintiff argues that Defendants do not assert that their representations in the speech at
issue are true and non-misleading. Defendants have repeatedly and consistently denied that their
article is false and misleading. (e.g. Def. Resp. ¶ 30.)
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Defendants state, in their response to Plaintiff’s Statement of Facts, that many of the
article’s references to Pyrex are to laboratory glass, or to borosilicate glass, and not to
World Kitchen’s Pyrex soda lime glass cookware. (Def. Resp. ¶ 15.)
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Plaintiff’s claim that the photograph in the Bulletin article depicts shattered pieces of
Pyrex cookware is disputed both by Defendants’ response to Plaintiff’s statement of facts and
Defendants’ reference to the article itself. Defendants agree that the photograph and label
accurately identify a shattered soda lime glass cookware pan, but correctly note that the image is
not identified as Pyrex cookware. Defendants also dispute Plaintiff’s contention that the article,
blog post, and news release represent that World Kitchen’s Pyrex glass cookware has a thermal
stress resistance of 99° F. The article states that thermal stress resistance of a particular piece of
glass depends on a number of factors, and that thermal stress resistance and heat strengthening is
not consistent for all soda lime cookware. It also states that the thermal stress resistance of pure
soda lime glass is 99° F; however, its assessment of heat-strengthened soda lime glass cookware
(like Pyrex) was that the heat strengthening was not sufficient to significantly increase the
thermal stress resistance.
Defendants also contend that Plaintiff’s characterization of the Consumer Reports
testing and Plaintiff’s calculation of the thermal stress resistance of heat-strengthened soda lime
glassware are incorrect. The Consumer Reports testing subjected heat-strengthened soda lime
glass cookware to “extreme” conditions intended to induce thermal breakage. (SOF ¶ 15.) The
cookware was filled with sand, heated inside 400° F or 450° F ovens for 80 minutes, and then
placed directly on a dry or wet surface. (SOF ¶¶ 15, 16.) Plaintiff argues that, assuming that the
granite was an ambient 68° F, this testing indicated that the thermal stress resistance of the
cookware was no less than 382° F on a dry surface and 332° F on a wet surface. In response,
Defendants allege that all of the samples of World Kitchen’s Pyrex cookware used in the
Consumer Reports testing shattered when placed on wet granite, and that some samples of
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World Kitchen’s Pyrex cookware shattered when placed on a dry surface. Even using Plaintiff’s
assumption that the temperature of the granite was an ambient 68° F, Defendants argue that the
results of the testing indicate that the thermal stress resistance of the heat-strengthened soda glass
cookware was far less than 382° F or 332° F.
It is clear that the falsity of Defendants’ speech is a disputed issue of material fact and
that summary judgment of Plaintiff’s DTPA is not appropriate. Further, as decided in the
previous order in this case, there is an issue of material fact as to whether the speech at issue is
commercial speech, such that the DTPA would apply.
CONCLUSION
For the reasons discussed above, Plaintiff’s Motion for Summary Judgment [118] is
denied.

Date: September 24, 2015

______________________________
JOHN W. DARRAH
United States District Court Judge

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