Dyson, Inc. v. Euro-Pro Operating LLC et al

Filing 308

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 4/7/2016. Mailed notice(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DYSON, INC.,
Plaintiff,
v.
SHARKNINJA OPERATING LLC and
SHARKNINJA SALES COMPANY,
Defendants.

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Case No. 14 C 9442
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
Defendants SharkNinja Operating LLC and SharkNinja Sales Company (collectively,
“SharkNinja”) have filed objections to the magistrate judge’s order denying their motion to
compel plaintiff Dyson, Inc. to produce test results relating to Dyson’s Cinetic vacuum. For the
following reasons, SharkNinja’s objections are overruled.
I. BACKGROUND
A.

The Parties’ Vacuums
This case arising under the Lanham Act and state law originally pitted Dyson’s DC65

vacuum against SharkNinja’s Shark Rotator Powered Lift-Away NV650-series vacuums. In
September 2015, the court granted Dyson’s unopposed motion to amend its complaint to
substitute Dyson’s “re-engineered Ball Multi Floor” vacuum (which was described as a new
iteration of the DC65) and SharkNinja’s NV750-series vacuums (which presumably rectify an
electrical shock risk that led to a recall of the NV650-series vacuums) as the vacuums-in-suit.
The court did so based on the parties’ representations that Euro-Pro had made the same or

substantially the same comparative carpet cleaning performance claims about these new
vacuums as it did about the original vacuums-in-suit.1
Both the original and amended complaints challenge SharkNinja’s claim about carpet
cleaning superiority based on ASTM F608 testing (removing embedded dirt from carpet).2
Specifically, in its original complaint, Dyson challenged SharkNinja’s claim that the NV650series vacuums “deep clean[] carpets better than Dyson’s best vacuum,” which the cited
SharkNinja advertisements identify as the DC65 or a “$600 vacuum.” (Compl., Dkt. 1, ¶¶ 1622.) In its amended complaint, Dyson alleges that its “best vacuum” for the purposes of carpet
cleaning performance is the re-engineered Ball Multi Floor, which it claims has “an updated,
improved cleaner head,” “provides superior pick up performance on carpet,” “performs better
under ASTM F608 testing than its prior iteration, the DC65,” and “performs better under ASTM

1

When granting Dyson’s agreed motion for leave to file an amended complaint, the
court accepted the parties’ representation that the amendment would update the vacuum models
but not add any new issues. In reviewing the amended complaint in connection with
SharkNinja’s objections, and with the benefit of the parties’ current discussion of the “best
vacuum” descriptor, the court noticed that Dyson has alleged that “[t]he statement ‘Dyson’s Best
Vacuum– DC65’ is literally false. The former DC65 is not Dyson’s best vacuum; rather,
Dyson’s best vacuum in terms of carpet cleaning ability is the re-engineered machine sold under
the name Dyson Ball Multi Floor. Euro-Pro knows this and is intentionally misinforming
consumers as to the nature and quality of Dyson’s machines, as well as the relative performance
of its own Shark Rotator Powered Lift-Away.” (Am. Compl., Dkt. 153, ¶ 48.) Dyson thus
appears to be challenging the truth of SharkNinja’s advertising relative to the cleaning ability of
Dyson’s DC65 versus Dyson’s re-engineered Ball Multi Floor. The court will not preclude
Dyson from attempting to justify this expansion of its complaint past its original challenge to the
truth of SharkNinja’s comparative claims about Dyson versus SharkNinja vacuums. However, it
notes that this appears to be a new claim that did not appear in the original complaint.
2

Generally, an amended complaint supercedes the original complaint for all purposes.
See, e.g., Posey v. Pruger, No. 10 C 3574, 2015 WL 5610764, at *4 (N.D. Ill. Sept. 22, 2015)
(“An amended complaint supersedes all earlier pleadings and renders them void”) (collecting
cases). The court will nevertheless reference the original complaint for historical context.
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F608 testing than the Shark Rotator Powered Lift-Away [NV650/750-series vacuums].” (Am.
Compl., Dkt. 153, ¶ 44.) The amended complaint, like the original complaint, repeats Dyson’s
challenge to SharkNinja’s advertising claims about the purported carpet cleaning superiority of
Shark’s NV650/NV750 vacuums versus “Dyson’s best vacuum.” Dyson’s amended complaint
points to SharkNinja advertising identifying Dyson’s “best” as either the DC65 or a “$600
Dyson” which a Shark-Ninja advertisement reproduced later in the amended complaint defines
as the DC65. (Id. ¶¶ 15-26, 38.)
The re-engineered Ball Multi Floor started shipping in April 2015 and Dyson launched
its marketing campaign for that vacuum in June 2015. According to Dyson’s amended
complaint, as of June 2015, the re-engineered Ball Multi Floor became its new “best” vacuum
for purposes of carpet cleaning. (Id. ¶ 46.) In its amended complaint, Dyson alleges that after the
launch of the re-engineered Ball Multi Floor in June 2015, SharkNinja continued to run
infomercials, television spots, and other advertisements identifying the DC65 as Dyson’s “best”
vacuum. (Id. ¶ 47). Dyson claims that this statement is “literally false” because as of June 2015,
Dyson’s “best” vacuum is the re-engineered Ball Multi Floor. (Id. ¶ 48).
Although neither the original nor the amended complaint mentions the Cinetic. let alone
describes it as Dyson’s “best” vacuum, SharkNinja stresses that Dyson subsequently claimed in
correspondence and on its website that the Cinetic is Dyson’s “best” vacuum. SharkNinja
contends that this means that Dyson opened the door to discovery as to whether the Shark
NV650/750-series vacuums clean carpets better than the Cinetic based on ASTM F608 testing
during the relevant time period.

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B.

The Magistrate Judge’s Order Denying SharkNinja’s Motion to Compel
In support of its contention that Dyson believed that the Cinetic was its “best” vacuum

for carpet cleaning, SharkNinja relied heavily on two letters sent by Dyson’s counsel to
SharkNinja’s counsel: (1) an April 13, 2015 letter stating that “the Dyson Cinetic™ Big Ball
vacuum . . . is, in fact, Dyson’s ‘Best Vacuum,’” and ASTM F608 testing on the Cinetic “proves
that Dyson’s ‘Best Vacuum’ cleans carpets better than the Shark Rotator Powered Lift-Away”
(Dkt. 196-2, at 2-3); and (2) a June 10, 2015 letter identifying the Cinetic as Dyson’s
“top-of-the-line upright vacuum” (Dkt. 196-3). The magistrate judge rejected SharkNinja’s
position that upon receipt of these letters, it “understood” that Dyson was claiming its “best”
vacuum was the Cinetic given that SharkNinja’s attorney sent a December 30, 2015 email to
Dyson’s attorneys indicating that he apparently had received different “letters this past
spring/summer [from] Mr. LoCascio claim[ing], as does Dyson in its Amended Complaint, that
its best performing vacuum is the Ball Multi Floor.” (Dkt. 196-1, at 11.)
SharkNinja also pointed to Dyson’s webpage for the Cinetic, which asserts that the
Cinetic has “[b]etter overall performance than any other vacuum. This vacuum has the highest
geometric average when carpet, hard floor and creviced hard floor pick-up results are
combined.” (Doc. 228, at 5). Relying on this court’s distinction between carpet cleaning
performance and cleaning performance over multiple floor types, the magistrate judge held that
this “does not equate to an assertion that the Cinetic is Dyson’s ‘best vacuum’ for purposes of
deep cleaning carpets under ASTM F608, which is the only relevant metric in this case.” (Feb.
9, 2016 Order, Dkt. 261, at 4-5.)

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The magistrate judge was also not persuaded by SharkNinja’s contention that a quote
attributed to SmartReview.com that describes the Cinetic as “Dyson’s best upright vacuum and
best pet hair vacuum” (Dkt. 228, at 4) was a “consumer endorsement” subject to the FTC Guides
Concerning Use of Endorsements and Testimonials in Advertising. See 16 C.F.R. § 255.2 (when
using a consumer endorsement, an advertiser “must possess and rely upon adequate
substantiation, including, when appropriate, competent and reliable scientific evidence to support
such claims made through endorsements in the same manner the advertiser would be required to
do if it had made the representation directly.”). Alternatively, the magistrate judge noted that the
SmartReview.com statement did not claim that the Cinetic was Dyson’s “best” vacuum for deep
cleaning carpeted surfaces, which is the cleaning claim at issue in this case. Thus, the magistrate
judge denied SharkNinja’s motion to compel production of Dyson’s Cinetic testing documents.
II. LEGAL STANDARD
Where a magistrate judge has decided a nondispositive pretrial matter, such as a
discovery motion, “[t]he district judge in the case must consider timely objections and modify or
set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P.
72(a); accord 28 U.S.C. § 636(b)(1)(A). “The clear error standard means that the district court
can overturn the magistrate judge’s ruling only if the district court is left with the definite and
firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d
926, 943 (7th Cir.1997). To satisfy this standard, SharkNinja “must show that [the magistrate
judge’s] order was clearly erroneous or contrary to law.” Velocity Patent, LLC v. Audi of Am.,
Inc., No. 13-CV-8418, 2014 WL 7054314, at *1 (N.D. Ill. Dec. 11, 2014).

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III. DISCUSSION
SharkNinja argues that Dyson seeks damages for a period of time when Dyson offered its
DC65, re-engineered Ball Multi Floor, and Cinetic vacuums for sale. According to SharkNinja,
“[a]s a result, the issue of which vacuum is Dyson’s ‘best vacuum’ is significant” because if
“Cinetic is Dyson’s ‘best vacuum,’ for some or all of the damages period, and the test results
show that NV650 cleans carpets better than Cinetic (and the ad claim therefore is truthful), then
Dyson is not entitled to any damages for that period.”3 (Defs.’ Obj., Dkt. 281, at 4.) SharkNinja
thus argues that Dyson’s test results for the Cinetic are relevant. It also argues that Dyson’s
amended complaint “put into issue whether the Ball Multi Floor is its “best vacuum” and a jury,
not the court, must decide this disputed issue of fact. (Id. at 5.) Remarkably—and without
addressing or even acknowledging the court’s contrary December 28, 2015 order addressing this
issue—SharkNinja also argues that allowing discovery about testing performed on the Cinetic is
“consistent with the court’s prior orders limiting claims and defenses.” (Id. at 7.)
SharkNinja’s position suffers from a fatal flaw: in the court’s December 28, 2015 order,
it repeatedly held that this case is about the accuracy of claims about comparative carpet
cleaning ability between Dyson’s DC65/re-engineered Ball Multi Floor and SharkNinja’s
NV650/NV750-series vacuums based on ASTM F608 carpet cleanability testing:
•

“[O]nce again, this case is about SharkNinja’s carpet cleaning superiority claims
based on ASTM F608 testing performed on the DC65 and the Shark NV650series vacuums (now sold in similar or identical form as Dyson’s “re-engineered
Ball Multi Floor” and SharkNinja’s NV750-series vacuums, respectively). It is
not based on Dyson’s claim about the DC65’s ability to clean carpet versus the
ability of every other vacuum in the marketplace to clean carpet. Similarly, it is

3

Presumably, SharkNinja means the NV750, not the NV650, as the NV750-series
vacuums are the current SharkNinja vacuums-in-suit.
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not about the DC65’s ability to clean hard floors or the DC65’s comparative
ability to clean hard floors versus every other vacuum in the marketplace.
•

This case “is about whether SharkNinja’s advertising claims about (1) the
vacuums-in-suit based on (2) ASTM F608 carpet cleanability testing (3) violate
the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and Illinois
common law.”

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Dyson “is challenging SharkNinja’s claim that its NV650 and NV750-series
vacuums deep clean carpets better than Dyson’s DC65 or “Dyson’s best vacuum”
(i.e., the DC65 and, now, the re-engineered Dyson Ball Multi Floor) based on
comparative ASTM F608 testing.”

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The court will hold Dyson to its representation that although “SharkNinja may
describe the limitations of both its suction and carpet cleaning claims in a single
disclaimer at the bottom of the page, Dyson has only challenged SharkNinja’s
carpet cleaning claims” that are based “exclusively [on] testing performed under
ASTM F608, and not with ASTM F558 suction power testing.”). (Dkt. 178 at 45.)

(Dec. 28, 2015 Order, Dkt. 187, at 7-10.)
This effort to cabin SharkNinja’s efforts to expand the scope of this lawsuit in order to
obtain discovery about carpet cleanability and other types of testing on a seemingly never ending
series of Dyson vacuums other than the DC65 and the re-engineered Ball Multi Floor—including
Dyson’s DC33, DC41, and DC59 vacuums (see id. at 8)—has obviously fallen on deaf ears. The
court’s earlier observation about SharkNinja’s repetitive contention that testing from IBR
(Dyson’s outside laboratory) and testimony from IBR’s Susan Goldsmith are unreliable is
equally applicable to SharkNinja’s continued insistence that it is entitled to a range of test results
(not just carpet cleanability) for vacuums other than the DC65 and the re-engineered Ball Multi
Floor: “[SharkNinja] need not and should not keep rebriefing this issue. It wastes the court’s
time and is extremely annoying.” Dyson, Inc. v. Euro-Pro Operating LLC, No. 14 C 9442, 2015
WL 1120006, at *17 n.21 (N.D. Ill. Mar. 10, 2015).

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The court will nevertheless briefly comment on SharkNinja’s effort to cast the Cinetic as
Dyson’s “best” vacuum. First, SharkNinja asserts that Dyson’s amended complaint “put into
issue whether the Ball Multi Floor is its ‘best vacuum’ and a jury, not the court, must decide this
disputed issue of fact.” (Defs.’ Obj., Dkt. 281, at 5.) This section of SharkNinja’s brief and the
corresponding section of SharkNinja’s reply memorandum are not supported by any authority
and SharkNinja does not address the proper standard of proof.4 The court will neither develop
and research arguments for SharkNinja (which at last count was represented by a team of ten
attorneys) nor accept its unsupported legal contentions. See, e.g., Nelson v. Napolitano, 657 F.3d
586, 590 (7th Cir. 2011) (the court is not “obliged to research and construct legal arguments for
parties, especially when they are represented by counsel”).
Second, even if Dyson’s counsel at varying points claimed that both the Cinetic and the
re-engineered Ball Multi-Floor were the “best” at cleaning carpets, SharkNinja’s challenged
advertisements make claims of carpet cleaning superiority versus the DC65 and its successor
vacuum, the re-engineered Ball Multi-Floor. Even SharkNinja concedes this point, as it must,
stating that its “advertising claim is expressly against the DC65,” “[t]he claim is a carpet
cleaning superiority claim against Dyson’s ‘best vacuum,’ expressly referencing the DC65,” and

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In this regard, the court does not understand how a carpet cleanability claim about
Dyson’s “best” vacuum (which the challenged SharkNinja advertisements define as the DC65)
can later transmogrify into a general superiority claim about a different Dyson vacuum’s
performance. An establishment claim is an advertising claim “in the form ‘tests show X’.”
Dyson, Inc., 2015 WL 1120006, at *11 (quoting BASF Corp. v. Old World Trading Co., Inc., 41
F.3d 1081, 1090 (7th Cir. 1994)). This case is about Dyson’s challenge to SharkNinja’s claim
that ASTM F608 tests purportedly show that the NV750-series vacuums deep clean carpets
better than the re-engineered Ball Multi Floor. It was previously about SharkNinja’s claim that
the NV650-series vacuums deep clean carpets better than the DC65. SharkNinja is the author of
its claims and is bound by the plain meaning of the claims it chose to make.
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“Dyson’s ‘best vacuum’ is a comparison to the DC65 (as expressed in the claim itself).” (Defs.’
Reply, Dkt. 296, at 4 n.1, 5-6.) This is consistent with the fact that the specific SharkNinja
advertisement cited in Dyson’s amended complaint that refers to Dyson’s “best” vacuum
expressly references the DC65 and ASTM F608 carpet cleanability testing:5

(Am. Compl., Dkt. 153, ¶ 17.) Accordingly, for the purposes of this lawsuit, “best” is a qualifier
associated with (1) the DC65 and the re-engineered Ball Multi-Floor and (2) carpet cleanability
comparative testing under ASTM F608, which, as the magistrate judge correctly observed, is the
only relevant testing metric in this case.

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The small print at the bottom of the ad also refers to ASTM F558 suction testing. The
court has previously held that although SharkNinja may describe the limitations of its suction
and carpet cleaning claims in a single disclaimer, Dyson has only challenged SharkNinja’s carpet
cleaning claims based on ASTM F608 cleanability testing. (Dec. 28, 2015 Order, Dkt. 187, at 89.) Thus, SharkNinja’s advertising reference to ASTM F558 suction testing is not germane to
the issues presently before the court.
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This conclusion is not affected by SharkNinja’s contention that its advertising claim is
against Dyson’s “best” vacuum (whatever that might be at any given time based on any given
metric or collection of metrics), as opposed to Dyson’s “best vacuum for the purposes of carpet
cleaning.” (Defs.’ Reply, Dkt. 296, at 4-6.) As discussed above, for the purposes of this case,
SharkNinja has not established that the identity of Dyson’s “best vacuum” is a fact question
meriting discovery. SharkNinja has also not established that this issue is divorced from ASTM
F608 carpet cleanability testing. Any such contention would be inconsistent with the SharkNinja
advertisements that are at the heart of this case. In sum, much though SharkNinja would like to
be able to obtain discovery from Dyson about other types of testing and test results relating to
other vacuums, this case is not about anything other than (1) comparative ASTM F608 carpet
cleanability testing claims for (2) the vacuums-in-suit.
SharkNinja’s contention that “Dyson did not respond at all to SharkNinja’s argument that
the results of its Cinetic testing would explain why Dyson suddenly changed its position as to
which vacuum is Dyson’s ‘best vacuum,’ and that ground is conceded” is also not well taken.
(Defs.’ Reply, Dkt. 296, at 2.) A party does not make a legally binding admission by declining
to respond to pejorative remarks made by the other side’s attorneys. SharkNinja’s waiver
argument is unavailing.
Enough is enough. SharkNinja’s objections to the magistrate judge order’s order denying
SharkNinja’s motion to compel Dyson to produce Cinetic test results are overruled. As Judge
Burroughs aptly remarked in a different context in the Boston “twice the suction” case between
SharkNinja and Dyson, “[o]verall, the Court has little patience for [SharkNinja’s] late efforts to
pursue a legal theory that is not articulated anywhere in the operative Complaint.” Euro-Pro

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Operating, LLC v. Dyson, Inc., No. 1:14-cv-13720-ADB, Dkt. 156 at 5 (D. Mass. Feb. 2, 2016)
(unpublished order). The same can be said for this case. SharkNinja is cautioned that further
efforts to expand this case beyond the vacuums-in-suit and comparative ASTM F608 cleanability
testing may be met with a rule to show cause why SharkNinja and its counsel should not be
sanctioned.
IV. CONCLUSION
For the reasons set forth above, Shark-Ninja’s objections to the magistrate judge’s order
denying its motion to compel Dyson to produce Cinetic test results [281] [282] are overruled.

Date: April 7, 2016

/s/
Joan B. Gottschall
United States District Judge

/cc

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