Wing Enterprises, Inc. v. Tricam Industries, Inc.
OPINION AND ORDER: Defendant Tricam Industries, Inc.'s Motion for Summary Judgment 159 is DENIED. (Written Opinion). Signed by Judge Eric C. Tostrud on 1/7/2021.(RMM)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Wing Enterprises, Inc., d/b/a Little Giant
Ladder Systems, a Utah corporation,
Case No. 17-cv-1769 (ECT/ECW)
OPINION AND ORDER
Tricam Industries, Inc., a Minnesota
Mark A. Miller, Brett L. Foster, and Elliot J. Hales, Dorsey & Whitney LLP, Salt Lake
City, UT, and Clint Conner and Caitlin L. D. Hull, Dorsey & Whitney LLP, Minneapolis,
MN, for Plaintiff Wing Enterprises, Inc.
Eric H. Chadwick and Zachary P. Armstrong, DeWitt LLP, Minneapolis, MN, for
Defendant Tricam Industries, Inc.
The Parties in this case manufacture competing brands of articulated ladders, also
known as multi-position (or “MPX”) ladders. Plaintiff Wing Enterprises, Inc., sells multiposition ladders under the Little Giant brand through a number of channels. Defendant
Tricam Industries, Inc., sells multi-position ladders under the Gorilla Ladders brand in
stores and online through Home Depot. In this lawsuit, Wing claims that Tricam violated
the Lanham Act, 15 U.S.C. § 1125(a), and the Minnesota Deceptive Trade Practices Act
(“DTPA”), Minn. Stat. § 325D.44, by falsely representing that its ladders comply with
ANSI ASC A14.2 (“ANSI A14.2”), a voluntary industry standard for portable metal
ladders. See Compl. ¶¶ 29–48 [ECF No. 1]. Summary judgment was previously granted
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to Tricam on the ground that Wing had not shown that the alleged misrepresentations were
material to consumers’ purchasing decisions. ECF Nos. 370, 371. The Federal Circuit
reversed that judgment on appeal and remanded for a determination “whether summary
judgment may be proper on other grounds.” Wing Enters., Inc. v. Tricam Indus., Inc., 829
F. App’x 508, 517 (Fed. Cir. 2020); see ECF Nos. 431, 432, 437. The Parties have
submitted supplemental briefing on Tricam’s motion for summary judgment. ECF Nos.
The motion will be denied. On this record, a reasonable jury could find that Tricam
made literally false statements in commercial advertising. That finding, if a jury made it,
would allow a presumption that Tricam’s statements deceived consumers. And based on
the nature of the relief it seeks, Wing has created a genuine dispute of material fact as to
whether it suffered a commercial injury that was proximately caused by Tricam’s
Given the posture of this case and the nature of the issues involved, a summary of
the general factual and procedural history is in order before addressing the Parties’
arguments. Facts that are relevant only to individual issues will be introduced later as
Wing’s claims all revolve around ANSI A14.2, a voluntary industry standard that
“prescribes rules governing safe construction, design, testing, care and use of portable
metal ladders of various types and styles.” Stensland Decl., Ex. 34 at 10 [ECF No. 162-5].
Relevant here, Section 6.7.5 of that standard says that, when a ladder uses particular types
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of rungs, those rungs “shall have a step surface of not less than 1 inch, either flat or along
a segment of 3 inches or greater radius.” Id. at 18–19. The outer rungs on Tricam’s multiposition ladders are greater than one inch deep in the middle, but they are crimped at each
end, where the rung meets the rail, as pictured here:
Wing Mem. Opp’n Summ. J. at 2 [ECF No. 260]. The crimped portions of the rung are
less than one inch deep. Miller Decl. ¶ 9, Ex. 8 at 8, 15–17 (“Bloswick Report”) [ECF
Nos. 262, 270]. Wing believes that the crimped portions are part of the “step surface” and
therefore that Tricam’s rungs do not fully comply with Section 6.7.5 of ANSI A14.2. See
id. at 19.
Wing identifies three statements in which it claims Tricam falsely represented that
its ladders comply with ANSI A14.2: (1) the label affixed to each ladder containing an oval
icon that bears the text “MANUFACTURER CERTIFIES CONFORMANCE TO
OSHA ANSI A14.2 CODE FOR METAL LADDERS”; (2) the portion of each product’s
“OSHA” is the Occupational Safety and Health Administration, a federal agency
within the U.S. Department of Labor. As discussed at length in the prior order granting
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page at Home Depot’s website that provides: “Certifications and Listings: ANSI Certified”;
and (3) the portion of each product’s page on Tricam’s website that provides:
“CERTIFICATIONS: ANSI A14.2 OSHA.” Wing Mem. Opp’n Summ. J. at 4.
When Tricam originally moved for summary judgment, it also moved to exclude
the testimony of two of Wing’s expert witnesses. ECF Nos. 220, 224; see Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The first witness, Donald S. Bloswick,
opined that Tricam’s ladders do not actually conform to ANSI A14.2, and Wing planned
to use this testimony to show that Tricam’s ANSI-certification statements were false. See
Wing Mem. Opp’n Summ. J. at 25–26; see generally Bloswick Report. The second
witness, Hal Poret, used the results of two consumer surveys to conclude that Tricam’s
statements were likely to influence customers’ purchasing decisions. The first survey
purported to test the impact of Tricam’s label (the “Labeling Survey”) and the second tested
the impact of safety standards in general on consumers’ thinking (the “Importance
Survey”). See Stensland Decl., Ex. 22 at 4 (“Poret Report”) [ECF No. 113-16]. Wing
planned to use Poret’s testimony to show that Tricam’s statements were material. In the
prior order that ultimately granted summary judgment, Bloswick’s testimony was admitted,
but Poret’s testimony was excluded. ECF No. 370 at 6–27. Based largely on the exclusion
of Poret’s testimony, summary judgment was granted to Tricam on the ground that Wing
had not created a sufficient factual dispute on the materiality of Tricam’s statements. Id.
summary judgment, the “OSHA” portion of Tricam’s label is not at issue in this case. ECF
No. 370 at 12–17.
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The Federal Circuit reversed the grant of summary judgment. It affirmed the
decision to exclude Poret’s testimony about the Labeling Survey but reversed the decision
to exclude his testimony about the Importance Survey. See Wing Enters., 829 F. App’x at
512–16. The court then concluded that Poret’s admissible testimony, combined with other
evidence in the record, was enough for “a reasonable jury [to] find in favor of Wing as to
the materiality element.” Id. at 517. Summary judgment on that basis was therefore
improper, and the court remanded the case for a determination “whether summary
judgment may be proper on other grounds.” Id. On remand, the Parties submitted
supplemental briefing addressing these “other grounds”—that is, the other arguments that
Tricam advanced in support of its summary-judgment motion. ECF Nos. 434, 436.
Because neither Party introduced new legal arguments or significant new authorities, an
additional hearing on Tricam’s motion was unnecessary. ECF No. 439.
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution “might affect
the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute over a fact is “genuine” only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. “The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”
Id. at 255 (citation omitted).
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Under the Lanham Act:
Any person who, . . . in connection with any goods, . . . uses in commerce
any . . . false or misleading description of fact, or false or misleading
representation of fact, which . . . in commercial advertising or promotion,
misrepresents the nature, characteristics, [or] qualities . . . of his or her . . .
goods, . . . shall be liable in a civil action by any person who believes that he
or she is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B). The Act’s purpose is “to protect persons engaged in commerce
against false advertising and unfair competition.” Am. Italian Pasta Co. v. New World
Pasta Co., 371 F.3d 387, 390 (8th Cir. 2004) (quoting United Indus. Corp. v. Clorox Co.,
140 F.3d 1175, 1179 (8th Cir. 1998)).
The Eighth Circuit has distilled this statutory text into five elements that a plaintiff
must prove to establish a false-advertising claim:
(1) a false statement of fact by the defendant in a commercial advertisement
about its own or another’s product; (2) the statement actually deceived or has
the tendency to deceive a substantial segment of its audience; (3) the
deception is material, in that it is likely to influence the purchasing decision;
(4) the defendant caused its false statement to enter interstate commerce; and
(5) the plaintiff has been or is likely to be injured as a result of the false
statement, either by direct diversion of sales from itself to defendant or by a
loss of goodwill associated with its products.”
United Indus. Corp., 140 F.3d at 1180. The Minnesota Deceptive Trade Practices Act
“mirrors” the Lanham Act, and courts therefore “use the same analysis to evaluate false
advertising claims that are made simultaneously under the federal and state statutes.” Med.
Graphics Corp. v. SensorMedics Corp., 872 F. Supp. 643, 649 (D. Minn. 1994); accord Aviva
Sports, Inc. v. Fingerhut Direct Mktg., Inc., 829 F. Supp. 2d 802, 809 n.7 (D. Minn. 2011). A
plaintiff’s failure to demonstrate any one of the five elements is fatal to its claim. Allsup,
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Inc. v. Advantage 2000 Consultants Inc., 428 F.3d 1135, 1138 (8th Cir. 2005). Tricam
does not dispute the fourth element—that it caused its allegedly false statements to enter
interstate commerce—and the Federal Circuit has already held that a triable issue of fact
exists on the materiality element. Tricam’s remaining arguments concern the first, second,
and fifth elements, and they will now be addressed in turn.
Tricam raises two different arguments on the first element. First, it says that it was
not responsible for any statements on Home Depot’s website. Second, it says that no
reasonable jury could find that any of the challenged statements were false.
Tricam’s first argument concerns only one category of allegedly false statements:
the portions of its products’ pages at Home Depot’s website that provide, “Certifications
and Listings: ANSI Certified.” The gist of this argument is that Tricam only made this
statement to Home Depot—not to the public—and that Home Depot was the one to
disseminate it. This means, in Tricam’s view, that it was not a statement “by the
defendant.” Tricam Mem. Supp. Summ. J. at 24 [ECF No. 160] (quoting United Indus.,
140 F.3d at 1180); Tricam Suppl. Mem. at 1–2 [ECF No. 434]. Wing responds that the
statements on Home Depot’s website are Tricam’s, at least as a functional matter, because
Tricam expected and intended that they would be used in commercial advertising. See
Wing Mem. Opp’n Summ. J. at 5–10; Wing Suppl. Mem. at 1–2 [ECF No. 436].
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Resolving this issue requires some background on how the statements ended up on
Home Depot’s website in the first place. Home Depot maintains an Item Data Management
(“IDM”) system vendor portal for managing online content relating to products Home
Depot sells (or that vendors hope Home Depot will sell). Miller Decl., Ex. 15 at 21
(“Mansager Dep.”) [ECF No. 276].2 Home Depot chooses what fields a vendor can or
must populate within the IDM system, reviews the content vendors submit through the
IDM system, may reject content that does not follow Home Depot’s requirements, must
approve any changes requested by the vendor, and may itself change content on a product
page without prior notification to the vendor. Mansager Dep. at 29–35, 40–44; Stensland
Decl., Ex. 1 at 73–74 (“Skubic Dep.”) [ECF Nos. 163, 268].
Tricam knew that if it did not select some type of ANSI certification from a dropdown menu in the IDM system, Home Depot would not issue a SKU number for the
product, and the product would likely not be sold at Home Depot. Mansager Dep. at 34–
38, 48; Stensland Decl., Ex. 4 at 63–64, 127–28 (“Jackson Dep.”) [ECF Nos. 164, 277]. A
Home Depot representative testified that the “IDM is the source of truth for all content as
it relates to Home Depot” and that Home Depot relies on its suppliers, like Tricam, to make
sure the content it enters into the IDM system is accurate. Jackson Dep. at 131–34. This
is because, as a general matter, Home Depot does not independently audit that
information—including information about whether the product conforms to ANSI. See id.
Citations to deposition transcripts will refer to the pagination of the transcripts
themselves, not to the pagination of the corresponding CM/ECF document.
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Indeed, in the articulated-ladder-supply contract between Home Depot and Tricam, Tricam
“warrant[ed] that all marketing materials provided by or for [Tricam] with respect to [its]
Merchandise [were] true, accurate and in compliance with all Applicable Laws and
Standards,” a term that the contract defined elsewhere to include, “without limitation,
standards promulgated by . . . American National Standards Institute”—ANSI. Miller
Decl., Ex. 11 at §§ 5.3, 5.4 [ECF No. 273]. Tricam expected and intended that the
information it entered into the IDM system would appear on its products’ pages on Home
Depot’s site and that prospective customers would use that information as a point of
comparison when shopping for ladders. Mansager Dep. at 21–26.
In general, after the pages for Tricam’s ladders are posted to Home Depot’s site,
Tricam monitors them and, as needed, requests content changes by submitting a ticket in
the IDM system. See First Miller Decl., Ex. 24 [ECF No. 287]; Mansager Dep. at 40–41;
Skubic Dep. at 74–75. In fact, in October 2017 (after this lawsuit had been filed), Tricam
removed the ANSI-certification language from its own website, and it considered asking
Home Depot to remove the language from its product pages, too. Stensland Decl., Ex. 5
[ECF No. 211]. Tricam ultimately did not do so, in part because it wanted customers to be
able to differentiate its products from other articulated ladders on Home Depot’s site.
Skubic Dep. at 75–77, 85–86; Mansager Dep. at 95–97.
Neither Party cites authority addressing the precise question at issue: whether and
when a supplier’s Lanham Act liability is cut off after the supplier passes on an allegedly
false statement to a retailer expecting and intending that the statement will reach the
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purchasing public. Tricam relies on the general principle that a false-advertising claim
requires a “false statement of fact by the defendant,” United Indus. Corp., 140 F.3d at 1180
(emphasis added), and it argues that the statement here was only “by” Home Depot. Tricam
Mem. Supp. Summ. J. at 24–25. According to Tricam, it could only have been liable under
a contributory-liability theory, which Wing has not pursued. See Duty Free Americas, Inc.
v. Estee Lauder Cos., 797 F.3d 1248, 1274–79 (11th Cir. 2015) (addressing a claim for
contributory false advertising). Wing responds that Tricam is directly liable because the
false statement originated with it. Wing Mem. Opp’n Summ. J. at 8–10. Relying on cases
that apply California law, Wing argues that a retailer like Home Depot cannot be liable for
simply displaying a manufacturer’s false statement. See, e.g., In re Hydroxycut Mktg. &
Sales Pract. Litig., 299 F.R.D. 648, 657 (S.D. Cal. 2014); Perez v. Monster Inc., 149 F.
Supp. 3d 1176, 1187 (N.D. Cal. 2016); In re Jamster Mktg. Litig., No. 05CV0819 JM
(CAB), 2009 WL 1456632, at *8 (S.D. Cal. May 22, 2009). Of course, whether Home
Depot could have been liable is largely beside the point, because only Tricam’s liability is
at issue. And Tricam has cited no authority suggesting that only one or the other could be
The text of the Lanham Act is a starting point, but it does not conclusively answer
the question. It says only that a defendant must “use in commerce . . . a false or
misleading description . . . or . . . representation of fact . . . in commercial advertising or
promotion.” 15 U.S.C. § 1125(a)(1). On its face, this language seems broad. One could
imagine lots of different ways to “use” a statement in commercial advertising that
necessarily involve action by third parties. A defendant business could, for example, place
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an ad in a magazine that exercises editorial control over its content, giving the magazine
some ability to make changes to the ad. Presumably the business has still “used” the
statements in the ad, even if the magazine has, too. In that scenario, the common-sense
question to ask is whether the business has ceded so much control that it is no longer
“using” the ad.
This is where Wing’s authorities have some persuasive value, at least insofar as
California law overlaps with the Lanham Act. Although the cited cases and others like
them address the liability of retailers—not manufacturers—they arguably shed light on
what must be true before a statement can be fairly attributed to a particular defendant.
Specifically, courts have held that a retailer is not liable under the Lanham Act for false
advertisements “created and controlled solely by third parties”—i.e., manufacturers.
Outlaw Lab’y, LP v. Shenoor Enters., Inc., 371 F. Supp. 3d 355, 368 (N.D. Tex. 2019); see
also, e.g., Lasoff v. Amazon.com Inc, No. C16-151 BJR, 2017 WL 372948, at *8 (W.D.
Wash. Jan. 26, 2017) (declining to hold Amazon liable for “misrepresentative material
generated by third parties”). So if, for example, a retailer merely sells products with
manufacturer-provided packaging that contains false statements, the retailer is not liable.
See Cohn v. Kind, LLC, No. 13 Civ. 8365 (AKH), 2015 WL 9703527, at *3 (S.D.N.Y. Jan.
14, 2015). On the other hand, a retailer can be liable when it takes a more active role in
“us[ing], promot[ing], and disseminat[ing] the false advertising.” JST Distrib., LLC v.
CNV.com, Inc., No. CV 17-6264 PSG (MRWx), 2018 WL 6113092, at *4 (C.D. Cal. Mar.
7, 2018); see Corker v. Costco Wholesale Corp., No. C19-0290RSL, 2019 WL 5895430,
at *2–3 (W.D. Wash. Nov. 12, 2019); accord Dorfman v. Nutramax Labs., Inc., No.
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13cv0873 WQH (RBB), 2013 WL 5353043, at *14 (S.D. Cal. Sept. 23, 2013) (holding,
under a California false-advertising statute, that retailers who “ma[de] . . . statements on
[their] website[s] that repeat and reinforce the false and misleading . . . statements on the
packaging and labeling” could be liable because they “‘participat[ed] in the unlawful
practices’ with ‘unbridled control over the practices’”).
Applying these principles in the opposite direction, the question in this case is
whether the degree of control Home Depot exercised over its website means that Tricam
did not “use” the online ANSI-certification statement in commerce.3 There is a genuine
dispute of material fact on this question. The evidence that Home Depot could change the
content on its webpage without notifying Tricam could suggest that Tricam effectively
surrendered control over the allegedly false content. But there is also evidence that Home
Depot relies on its vendors to enter accurate information in the system without
independently auditing that information; that Tricam expected and intended that customers
would use the information it entered into the IDM system to make purchasing decisions;
and that Tricam could request changes to the information after it was posted on the website.
Given this evidence, a reasonable jury could conclude that Tricam itself used the ANSIcompliance statement in a commercial advertisement.
In its supplemental brief, Tricam relies in part on the Supreme Court’s statement
that, “[f]or purposes of [SEC] Rule 10b-5, the maker of a statement is the person or entity
with ultimate authority over the statement, including its content and whether and how to
communicate it.” Janus Cap. Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142
(2011). Janus is not much help here. The Court’s reasoning in that case was driven by
Rule 10b-5’s use of the verb “make,” see id.; this case involves both different statutory
language and a different body of judicial law.
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Next, Tricam argues that none of the challenged statements were false. There are
two types of actionable statements under § 1125(a): “(1) literally false factual commercial
claims; and (2) literally true or ambiguous factual claims ‘which implicitly convey a false
impression, are misleading in context, or [are] likely to deceive consumers.” Am. Italian
Pasta Co., 371 F.3d at 390 (quoting United Indus. Corp., 140 F.3d at 1180). A statement
may be literally false either because it is “false on its face,” United Indus. Corp., 140 F.3d
at 1181, or because it is false “by necessary implication,” Buetow v. A.L.S. Enters., Inc.,
650 F.3d 1178, 1185 (8th Cir. 2011). For reasons that will become clear later, Wing claims
that Tricam’s statements were literally false because they either directly state or necessarily
imply that Tricam’s ladders actually comply with ANSI A14.2 when in fact (according to
Wing) they do not. Wing Mem. Opp’n Summ. J. at 14–31; Wing Suppl. Mem. at 3–4.
Whether an advertisement is literally false depends on the answer to two separate
questions: (1) what message is being conveyed, and (2) whether that message is false. See
United Indus. Corp., 140 F.3d at 1181; Surdyk’s Liquor, Inc. v. MGM Liquor Stores, Inc.,
83 F. Supp. 2d 1016, 1022–23 (D. Minn. 2001); accord 5 J. Thomas McCarthy, McCarthy
on Trademarks and Unfair Competition § 27:53 (5th ed. Dec. 2020 Update). When the
first question has no clear answer, the claim fails, because “[o]nly an unambiguous message
can be literally false.” Buetow, 650 F.3d at 1185 (quoting Time Warner Cable, Inc. v.
DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007)) (emphasis in original). Put differently,
when an advertisement “can reasonably be understood as conveying different messages,
[a] literal falsity argument must fail.” Id. (quoting Scotts Co. v. United Indus. Corp., 315
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F.3d 264, 275 (4th Cir. 2002)). A false message is “necessarily implied” only when it “will
necessarily and unavoidably be received by the consumer.”
Id. (quoting Novartis
Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578,
588 (3d Cir. 2002)); see also MSP Corp. v. Westech Instruments, Inc., 500 F. Supp. 2d
1198, 1216 (D. Minn. 2007) (explaining that the intended audience must “recognize the
claim as readily as if it had been explicitly stated” (internal quotation marks and citation
omitted)). This depends on the “full context” of the message. United Indus. Corp., 140
F.3d at 1180 (citing Rhone-Poulenc Rorer Pharms., Inc. v. Marion Merrell Dow, Inc., 93
F.3d 511, 516 (8th Cir. 1996)); see also Time Warner, 497 F.3d at 158.
Before digging more deeply into Tricam’s statements, there is a threshold question:
whether literal falsity presents a question of law or one of fact. Tricam argues that the first
part of the literal-falsity inquiry—determining the meaning of the message being
conveyed—requires a court to decide whether the message is ambiguous, and analogizing
to contract interpretation, it argues that this ambiguity determination is a question of law.
Tricam Suppl. Mem. at 2–5. Wing responds that divining the meaning of an advertisement
is a fact-intensive process best left to the jury. Wing Suppl. Mem. at 2–4.
The law on this point is somewhat unsettled. In at least one case, the Eighth Circuit
has treated literal falsity as a question of fact. See United Indus. Corp., 140 F.3d at 1181–
82 (reviewing the grant of a preliminary injunction and applying the “clearly erroneous”
standard of review to a district court’s findings regarding what messages were conveyed in
advertisements and whether those messages were false). Seven years later, a different
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Eighth Circuit panel wrote that “[a] literally false statement can be determined as a matter
of law, but whether a statement is misleading is considered a matter of fact.” Allsup, Inc.
v. Advantage 2000 Consultants Inc., 428 F.3d 1135, 1138 (8th Cir. 2005).4 The Circuit has
subsequently recognized the inconsistency between United Industries and Allsup but has
not resolved it. See Buetow, 650 F.3d at 1185–86 n.5.
Most courts in this District have treated both parts of the literal-falsity inquiry as
questions of fact. See Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., 829 F. Supp. 2d
802, 811 n.8 (D. Minn. 2011); 3M Innovative Props. Co. v. Dupont Dow Elastomers LLC,
361 F. Supp. 2d 958, 969–70 (D. Minn. 2005); Surdyk’s Liquor, Inc., 83 F. Supp. 2d at
1022–23. And this is the majority approach among other circuits. See, e.g., N. Am. Med.
Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1225 n.12 (11th Cir. 2008); Zoller Labs.,
LLC v. NBTY, Inc., 111 F. App’x 978, 983 (10th Cir. 2004); Novartis Consumer Health,
Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 589–90 (3d Cir.
2002); Scotts Co., 315 F.3d at 274–76; Clorox Co. Puerto Rico v. Proctor & Gamble Com.
Co., 228 F.3d 24, 34–35 (1st Cir. 2000); BASF Corp. v. Old World Trading Co., 41 F.3d
1081, 1091 (7th Cir. 1994); Johnson & Johnson v. GAC Int’l, Inc., 862 F.2d 975, 979 (2d
Cir. 1988). Only the Sixth Circuit appears to follow Tricam’s preferred approach, treating
the ambiguity of a statement as a threshold question of law. See Am. Council of Certified
Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, Inc., 185 F.3d 606, 615
In support of this proposition, the court in Allsup cited Peters v. General Service
Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002). Peters involved a different statute, the
Fair Debt Collection Practices Act, and in dicta, the court stated that a literally false
statement violates the Lanham Act “as a matter of law.” Id.
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n.2 (6th Cir. 1999). And one court in this District, relying on American Council of Certified
Podiatric Physicians & Surgeons, has done the same. See Honeywell Int’l Inc. v. ICM
Controls Corp., 45 F. Supp. 3d 969, 986–87 & n.11 (D. Minn. 2014).
For two reasons, the better approach is to treat the potential ambiguity of an
advertisement as a question of fact. First, to the extent United Industries and Allsup are in
direct conflict, United Industries controls because it was decided first. See Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“[W]hen faced with conflicting panel
opinions, the earliest opinion must be followed as it should have controlled the subsequent
panels that created the conflict.” (internal quotation marks and citation omitted)); see also
United States v. Bugh, 459 F. Supp. 3d 1184, 1191–92 (D. Minn. 2020) (applying Mader’s
first-in-time rule). Second, even if Mader did not apply, the great weight of authority in
this District and in other circuits is on Wing’s side. The upshot is that, if a reasonable jury
could find that Tricam unambiguously conveyed a false message in the challenged
statements, either explicitly or by necessary implication, then summary judgment on this
element is inappropriate.
Now turn back to the three statements at issue: (1) the label affixed to each ladder
containing an oval icon that bears the text “MANUFACTURER CERTIFIES
CONFORMANCE TO OSHA ANSI A14.2 CODE FOR METAL LADDERS”; (2) the
portion of each products page at Home Depot’s website that provides: “Certifications and
Listings: ANSI Certified”; and (3) the portion of each product’s page on Tricam’s website
that provides: “CERTIFICATIONS: ANSI A14.2 OSHA.” Wing Mem. Opp’n Summ. J.
at 4. Generally, courts analyze each allegedly false statement separately. See, e.g., Aviva
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Sports, Inc., 829 F. Supp. 2d at 809. Here, however, most of Tricam’s arguments apply
equally to all three statements, so it makes sense to address them together.
Tricam’s first argument is that all three statements are literally true. In its view, the
only reasonable reading of the statements is that its ladders were tested for ANSI
compliance, and it points to evidence in the record that its ladders underwent such testing.
See Tricam Mem. Supp. Summ. J. at 26–27. Wing responds that a reasonable purchaser
would understand the statements to mean not only that Tricam’s ladders had been tested
for ANSI compliance but that they actually complied with the standard. Wing Mem. Opp’n
Summ. J. at 15–18.
This is a genuine factual dispute. At the heart of the dispute is what it means for
Tricam to “certify” ANSI conformance or to claim an ANSI “certification.” A jury
considering the meaning of these words from the perspective of “any linguistically
competent person,” Buetow, 650 F.3d at 1186 (quoting Schering-Plough Healthcare
Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009)), might look to
relevant dictionary definitions. The American Heritage Dictionary (5th ed. 2019), for
example, defines the verb “certify” as “[t]o confirm formally as true, accurate, or genuine”
or “[t]o guarantee as meeting a standard.” A jury applying these definitions could
reasonably interpret Tricam’s advertisements to mean not only that its ladders have
undergone and passed some type of testing to ANSI standards, but also that those tests
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were accurate—in other words, that Tricam’s ladders actually “meet” the ANSI A14.2
standard.5 It is therefore not appropriate to grant summary judgment on this basis.
Tricam argues in the alternative that all three statements are at least subject to
multiple competing interpretations. Citing witness testimony, it identifies five messages
potentially conveyed by its advertisements: “(1) the ladder is fully compliant with the
ANSI A14.2 standard for metal ladders as [Tricam] understand[s] the standard; (2) the
ladder is ANSI certified; (3) [the] manufacturer certifies conformance to OSHA ANSI A
14.2; (4) the ladder is tested to ANSI; and (5) the ladder conforms to ANSI or complies to
ANSI.” Tricam Mem. Supp. Summ. J. at 28 (internal citations and quotation marks
omitted). But Wing’s claim will only fail because of ambiguity if there are multiple
“reasonable” interpretations of the advertisement. Buetow, 650 F.3d at 1185. For the same
reasons already discussed, a reasonable jury could find that all of Tricam’s proposed
interpretations are just different ways of saying the same thing: that the ladders conform to
In a similar vein, Tricam argues that its ANSI-certification statements cannot be
literally false because consumers would need to “review the ANSI standards using Wing’s
interpretation” in order to conclude that the statements were false. Tricam Suppl. Mem. at
5. It relies on Healthmate Int’l, LLC v. French, 255 F. Supp. 3d 908 (W.D. Mo. 2017), in
This case is unlike PSK, LLC v. Hicklin, 757 F. Supp 2d 836, 870–71 (N.D. Iowa
2010), in which an employer simply claimed that his technicians were “certified.” The
court there found that the statement was not literally false because the employer himself
had “certified” the technicians. Id. But the “certification” in PSK did not place in the
consumer’s mind a specific, objective industry standard like ANSI A14.2.
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which a business allegedly misrepresented its products as “FDA approved” rather than
“FDA cleared”—terms of art with different technical meanings under applicable
regulations. Id. at 916. The court determined that the statement was not literally false
because the terms “cleared” and “approved” had indistinguishable ordinary meanings, and
consumers would need “[c]onsiderable context” to understand the difference. Id. at 918.
Here, a reasonable jury could find that Tricam represented its ladders as meeting the ANSI
standard. Whether consumers understood all the details of that standard is irrelevant to this
element, even if it could have bearing on other elements of Wing’s claim (e.g., materiality).
If the ladders do not in fact conform to the ANSI standard, then a jury could find that
Tricam’s statements are literally false.6
Next up is whether Tricam’s statements “actually deceived or ha[d] the tendency to
deceive a substantial segment of its audience.” United Indus. Corp., 140 F.3d at 1180. The
Parties principally dispute whether Wing must present any evidence at all on this element.
In its initial summary-judgment briefing, Tricam argued that Wing had not created
a triable issue of fact on literal falsity because its ladders did in fact comply with ANSI
A14.2. This argument was largely based on Tricam’s then-pending motion to exclude
Bloswick’s expert testimony. ECF No. 220; see Bloswick Report. Without that testimony,
Tricam argued, the remaining evidence in the record suggested that its ladders were ANSIcompliant. See Tricam Mem. Supp. Summ. J. at 37–39. In the previous order granting
summary judgment, Tricam’s motion to exclude Bloswick’s testimony was denied. ECF
No. 370 at 9–10. In view of that ruling, a reasonable juror could find that Tricam’s ladders
do not comply with ANSI A14.2. See Order Denying Motion for Stay and Motion for
Attorneys’ Fees and Granting Motion to Review Cost Judgment at 4 [ECF No. 428]
(observing that the admission of Bloswick’s testimony “created a triable fact as to the literal
falsity of Tricam’s ANSI-conformance statements”). Indeed, Tricam did not appear to
argue before, nor does it argue now, that the evidence is insufficient to create a factual
dispute even with Bloswick’s testimony.
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That is because, in a number of a cases, the Eighth Circuit has held that once a plaintiff has
proved that a statement is literally false, “the court may presume that consumers were
misled . . . without requiring consumer surveys or other evidence of the ad’s impact on the
buying public.” Buetow, 650 F.3d at 1183; see also United Indus. Corp., 140 F.3d at 1180;
5 McCarthy, supra, §§ 27:53–54; cf. Fair Isaac Corp. v. Experian Info. Sols., Inc., 650
F.3d 1139, 1151–52 (8th Cir. 2011) (“A claim that a statement is implicitly [as compared
to literally] false requires proof that the statement is deceptive or misleading, and the
success of such a claim usually turns on the persuasiveness of a consumer survey.”).
Tricam argues that the presumption of deception does not apply to non-comparative
statements like the ones at issue here—that is, statements that do not directly compare
competing products. Tricam Mem. Supp. Summ. J. at 25–26; Tricam Suppl. Mem. at 5–
6. For support, it cites two cases: one from the Eighth Circuit, see Everest Cap. Ltd. v.
Everest Funds Mgmt., L.L.C., 393 F.3d 755 (8th Cir. 2005), and another from the Southern
District of Iowa, see Sam’s Riverside, Inc. v. Intercon Sols., Inc., 790 F. Supp. 2d 965 (S.D.
Iowa 2011). In Everest, the Eighth Circuit reviewed a jury verdict against a plaintiff who
argued that an investment firm had posted statements on its website misrepresenting the
services that it offered. 393 F.3d at 758, 764. On appeal, the plaintiff argued that the
district court should have instructed the jury that the presumption of deception applied. See
id. at 764. After concluding that a reasonable jury could have found that “the misstatement
was inadvertent, that it did not deceive or have a tendency to deceive a substantial segment
of the website’s intended audience, that it was unlikely to influence purchasing decisions,
and that [the plaintiff] failed to prove injury or likely injury as a result of the misstatement,”
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the court held that the district court’s refusal to include an instruction on the presumption
was not an abuse of discretion. Id. The court did not mention any distinction between
comparative and non-comparative cases.
In Sam’s Riverside, the court seemed to conclude that Everest did away with the
presumption of deception entirely. See 790 F. Supp. 2d at 987–88. Only in the course of
distinguishing a different Eighth Circuit case in a footnote did the court suggest that the
presumption might apply in comparative cases but not in non-comparative ones. Id. at 988
n.43. For support on this point, the court quoted a treatise suggesting that the presumption
of deception is limited to comparative cases. See id. (citing 2 Louis Altman and Malla
Pollack, Callmann on Unfair Competition, Trademarks and Monopolies § 5:23 (4th ed.)).
But the relevant passage in that treatise reads as follows: “[I]f the advertising is literally
false, the general rule in private litigation is to grant injunctive relief without requiring
proof that anyone was misled, and for the purposes of injunctive relief, irreparable injury
may be presumed.
But some authority limits that presumption to cases involving
2 Altman & Pollack, supra, § 5:39 (emphasis added)
(footnotes omitted).7 So, the treatise appears to be referring to the presumption of
irreparable injury, not the presumption of deception. And the cases it cites for support
confirm this reading. See id. § 5:39 n.8; see also N. Am. Med. Corp., 522 F.3d at 1224–27
& n.11 (acknowledging the presumption of deception, which was not at issue, but holding
that a district court erred in presuming a threat of irreparable harm); Nat’l Prods., Inc. v.
The treatise’s section numbers seem to have been reorganized in the years since
Sam’s Riverside was decided.
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Gamber-Johnson LLC, 699 F. Supp. 2d 1232, 1241 (W.D. Wash. 2010) (concluding that a
presumption of deception applies in both comparative and non-comparative cases but that
a presumption of injury only applies in comparative cases).
The better answer is that deception may still be presumed in non-comparative cases.
First, on the face of the opinion, Everest does not stand for the broad proposition that
Tricam says it does. The court did not, as Tricam suggests, conclude that the presumption
of deception was “contrary to law” in non-comparative cases; it merely used that phrase to
describe the plaintiff’s argument that the district court’s jury instructions were an abuse of
discretion. Everest, 393 F.3d at 764. Nor did the court suggest that the comparative or
non-comparative nature of the advertisement should make a difference. Indeed, its analysis
on this issue was limited to one sentence. See id. Given this context, and the general
principle that “jury instructions do not need to be technically perfect,” United States v.
Gianakos, 415 F.3d 912, 920 (8th Cir. 2005), it would be inappropriate to read too much
Second, even after Everest, the Eighth Circuit has described the presumption as
“sound” without suggesting that it is limited to comparative cases. Buetow, 650 F.3d at
1183.8 The presumption of deception was not directly at issue in Buetow, but that case,
like Everest, involved a non-comparative advertisement. See id. at 1181–82. The court
acknowledged in a footnote that some courts had treated comparative and non-comparative
cases differently for purposes of presuming irreparable harm. See id. at 1183 n.3. Even
The same judge authored both Everest and Buetow.
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with these issues at top of mind, however, the court never cited Everest or otherwise
suggested that it had done away with the presumption of deception for non-comparative
cases. Indeed, multiple courts in this District have applied the presumption in noncomparative cases post-Everest, albeit without citing the case. See Aviva Sports, 829 F.
Supp. 2d at 812–13; MSP Corp. v. Westech Instruments, Inc., 500 F. Supp. 2d 1198, 1215–
17 (D. Minn. 2007); 3M Innovative Props. Co. v. Dupont Dow Elastomers LLC, 361 F.
Supp. 2d 958, 968, 971 (D. Minn. 2005); see also Corizon, Inc. v. Wexford Health Sources,
Inc., No. 4:10 CV 2430 DDN, 2013 WL 3821268, at *8 (E.D. Mo. July 23, 2013) (rejecting
the argument that Everest “abrogated the deception presumption”).
Given this weight of authority, the deception presumption still applies when
challenged statements are literally false. Because a reasonable jury could conclude that
Tricam’s ANSI-certification statements were literally false, summary judgment is
inappropriate on the deception element.
Finally, Tricam argues that Wing has not made a sufficient showing of an injury
caused by the allegedly false statements. Relying primarily on cases involving money
damages, Tricam asserts that the record lacks evidence to support Wing’s claimed
injuries—diversion of sales, price erosion, and loss of business opportunities—and that
Wing has not adequately tied those injuries to Tricam’s statements, as opposed to other
market factors. Tricam Mem. Supp. Summ. J. at 30–37; Tricam Suppl. Mem. at 6–9.
In order to evaluate Tricam’s argument, it is first necessary to observe the difference
between Lanham Act violations and Lanham Act remedies. See Web Printing Controls
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Co. v. Oxy-Dry Corp., 906 F.2d 1202, 1204–05 (7th Cir. 1990) (describing these as “two
stages of inquiry . . . that should be kept separate”). As a threshold matter, a Lanham Act
plaintiff must identify an “economic or reputational injury flowing directly from the
deception wrought by the defendant’s advertising.” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 133 (2014) (addressing what a plaintiff must allege in
order to have statutory standing to bring a Lanham Act claim).9 But all that is required to
establish a violation is a likelihood of such an injury. See 15 U.S.C. § 1125(a); United
Indus. Corp., 140 F.3d at 1180. From there, the nature of a plaintiff’s burden on the injuryand-causation element depends on the type of remedy that it seeks. Aviva Sports, 829
F. Supp. 2d at 814.
A plaintiff’s burden is at its highest when it seeks money damages. In such cases,
a plaintiff “must prove both actual damages and a causal link between [the] defendant’s
violation and those damages.” Rhone-Poulenc Rorer Pharms., Inc. v. Marion Merrell
Dow, Inc., 93 F.3d 511, 515 (8th Cir. 1996).
The burden is lower when a plaintiff seeks injunctive relief. See Aviva Sports, 829
F. Supp. 2d at 815; see also Lexmark Int’l, 572 U.S. at 135–36 (“Even when a plaintiff
Wing suggests that Lexmark created a presumption of causation when the parties in
a case are direct competitors, as Wing and Tricam undoubtedly are here. See Wing Mem.
Opp’n Summ. J. at 32. The Court in Lexmark did not mention any such presumption. At
most, the Court recognized that a direct competitor generally has an easier time showing
proximate causation. See Lexmark, 572 U.S. at 136. Moreover, it is true that courts will
presume injury and causation “in comparative advertising cases where money damages are
sought and where there exists proof of willful deception,” Porous Media Corp. v. Pall
Corp., 110 F.3d 1329, 1336 (8th Cir. 1997), but this case involves non-comparative
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cannot quantify its losses with sufficient certainty to recover damages, it may still be
entitled to injunctive relief . . . or disgorgement of the defendant’s ill-gotten profits[.]”).
An injunction requires more than a subjective belief that an injury has occurred or will
occur, see Blue Dane Simmental Corp. v. Am. Simmental Ass’n, 178 F.3d 1035, 1043 (8th
Cir. 1999); see also Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 189 (2d
Cir. 1980), but it does not require proof of “specific damage,” Porous Media Corp. v. Pall
Corp., 110 F.3d 1329, 1335 (8th Cir. 1997). The relevant question is “whether it is
likely that [a defendant’s] advertising has caused or will cause a loss of [the plaintiff’s]
sales, not whether [the plaintiff] has come forward with specific evidence that [the
defendant’s] ads actually resulted in some definite loss of sales.” Aviva Sports, 829 F.
Supp. 2d at 815 (quoting Johnson & Johnson, 631 F.2d at 190) (emphasis in original).
Given the congressional policy in favor of protecting consumer rights, “courts are not and
should not be reluctant to allow a commercial plaintiff to obtain an injunction even where
the likelihood of provable impact on the plaintiff may be subtle and slight.” Porous Media
Corp., 110 F.3d at 1335 n.8 (quoting 3 J. Thomas McCarthy, McCarthy on Trademarks
and Unfair Competition § 27.04(3)(d), at 27–48 (3d ed. 1996)).
The burden is similarly low when a plaintiff seeks the equitable remedy of
disgorgement of profits. That is because, rather than aiming to compensate the plaintiff for
specific, identifiable losses, this remedy “exists to deter would-be infringers and to
safeguard against unjust enrichment.” Masters v. UHS of Del., Inc., 631 F.3d 464, 473 (8th
Cir. 2011); see Aviva Sports, 829 F. Supp. 2d at 817–18 (applying Masters, which involved
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a service-mark-infringement claim, to a false-advertising claim).10 Once a plaintiff seeking
disgorgement of profits has shown the likelihood of harm necessary to establish an
underlying Lanham Act violation, the plaintiff must “prove defendant’s sales only;
defendant must prove all elements of cost or deduction claimed.” 15 U.S.C. § 1117(a); see
also Aviva Sports, 829 F. Supp. 2d at 819; Safco Prods. Co. v. Welcom Prods., Inc., 799
F.Supp.2d 967, 995–96 (D. Minn. 2011). In other words, the plaintiff does not need to
show which of the defendant’s profits were attributable to the false advertising; on the
contrary, “the defendant bears the burden of showing . . . any portion of sales that was not
due to the allegedly false advertising.’” Aviva Sports, 829 F. Supp. 2d at 819 (quoting
Rexall Sundown, Inc. v. Perrigo Co., 707 F.Supp.2d 357, 359 (E.D.N.Y. 2010)).
In its Complaint, Wing sought injunctive relief, disgorgement of Tricam’s profits,
“consequential damages,” treble damages, and attorneys’ fees and expenses. Compl. at
10–11. At the hearing on Tricam’s motion, however, Wing clarified that it no longer seeks
damages; the only monetary relief it now seeks is disgorgement of profits. Tr. Hr’g Mot.
Summ. J. at 71–72 [ECF No. 407]. Wing therefore does not need to meet the heightened
injury-and-causation burden that applies when a plaintiff seeks money damages. With that
background in mind, turn to the three categories of injury that Wing claims: (1) the lost
opportunity to sell ladders in Home Depot stores; (2) lost sales and market share; and (3)
The Supreme Court recently clarified that a defendant’s willfulness, while a relevant
factor, is not an “inflexible precondition to recovery” of profits under the Lanham Act, at
least in the trademark-infringement context. Romag Fasteners, Inc. v. Fossil, Inc., 140
S. Ct. 1492, 1497 (2020); see 5 McCarthy, supra, § 27:43 (arguing that Romag “should
also be applied to false advertising cases”).
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price erosion. Wing has not shown a genuine issue of material fact on the first theory, but
it has on the other two.
Wing argues that Tricam’s false statements deprived it of the opportunity to sell
articulated ladders in-store—as opposed to online—at Home Depot. Its theory is that, if
Tricam had truthfully represented that its newly developed articulated ladders were not
ANSI-compliant, Home Depot would not have sold the ladders and would have turned to
Wing to supply ladders for in-store sales instead. Wing Mem. Opp’n Summ. J. at 38–40.
Understanding the full context of this argument requires more facts. In the summer
of 2015, Wing and Home Depot had a falling out over a ladder-pricing dispute, and as a
result, Home Depot temporarily blacklisted Wing, removing its ladders from Home
Depot’s retail and online stores. Stensland Decl., Ex. 10 at 65–71 (“Jonap Dep.”) [ECF
No. 170]; see Jackson Dep. at 21–22, 27–30. An internal Home Depot memo described
Wing as “not to be trusted—do[es] not deliver on promises,” and Home Depot resolved
not to do business with Wing going forward. Stensland Decl., Ex. 14 at 5 [ECF 174];
Jackson Dep. at 28–30. Consequently, by September 2015, another brand, Werner, made
the only multi-position ladders that Home Depot sold in stores, and its products were the
only national brand that Home Depot sold online. Jackson Dep. at 16.
At that time, Tricam had not manufactured any multi-position ladders for the better
part of a decade, but it supplied other products to Home Depot, and the two companies had
a good relationship. Jackson Dep. at 19–20, 24–27; Skubic Dep. at 12. Tricam saw “an
opportunity to get back into the business” of multi-position ladders, and beginning in the
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fall of 2015, it approached Home Depot to determine “[i]f we could do something in that
space if there would be an interest. The answer was yes.” Skubic Dep. at 13–14, 19.
Through the winter of 2015, Tricam developed the multi-position ladders whose
advertisements are at issue in this case, to be sold exclusively through Home Depot. Skubic
Dep. at 19, 23; Jackson Dep. at 20–21, 93. Because Tricam’s ladders would carry a “higher
weight rating” than the competing Werner product, had a lower “first cost,” and were
exclusive to Home Depot, Home Depot decided to carry Tricam’s ladders without
performing a line review—that is, without requesting bids for multi-position ladders from
other potential suppliers around the country. Jackson Dep. at 20, 93–94.
In July 2016, as Tricam continued working to develop its multi-position ladders for
Home Depot, Home Depot contacted Wing about bringing Wing’s products back to Home
Depot’s website. Jonap Dep. at 82–84. At least some of Wing’s products were relaunched
on Home Depot’s website between September and December 2016. Id. at 86–89. But
Home Depot had no plan to bring Wing’s ladders back in-store at that time, or apparently
at any time until at least March 2018. Jackson Dep. at 36–37. Furthermore, Home Depot’s
former ladder merchant declined to speculate about whether she would have invited Wing
back into Home Depot’s retail stores if Tricam had not represented itself as conforming to
ANSI A14.2, saying only that she “would probably reach internal, to existing suppliers,
before [she] reached external, to new suppliers.” Id. at 122–23, 162–64.
Against this backdrop, it becomes clear that Wing’s lost-business-opportunity
theory requires too much speculation to create a genuine factual dispute. First, it is far
from clear that Home Depot would necessarily have sought out a different supplier at all if
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Tricam had not represented ANSI compliance. It merely accepted the “opportunity” that
Tricam presented without conducting a “line review” of multi-position ladders, suggesting
it was not wedded to the idea of introducing a new model into stores. Id. at 124. Even if
it had been, it is implausible that Home Depot would have turned to Wing—who was not
an in-store supplier at the time Tricam introduced its ladders—when it had an existing instore-supplier relationship with Werner.
See id. at 122–24, 162–64.
The chain of
assumptions is too long to be anything other than speculative.
Next, the Parties dispute whether Wing has shown a genuine factual dispute as to
whether Tricam’s allegedly false statements led or will lead Wing to lose sales and market
share. Wing advances a two-fold argument. First, it says, Tricam could not have entered
the market if it had not represented that its ladders conformed to ANSI A14.2. Second,
once Tricam’s ladders were in the market, its ANSI-certification statements made
customers more likely to purchase Tricam’s ladders than Wing’s. Wing Mem. Opp’n
Summ. J. at 33–38. Tricam responds that Wing has not shown that it actually lost any
market share or sales and that, even if it had, it has not sufficiently tied those losses to the
false statements, as opposed to other market factors. Tricam Mem. Supp. Summ. J. at 32–
Although the question is a somewhat close one, there is at least a triable issue of
fact. Home Depot began selling Tricam’s ladders in stores and online in early 2017.
Stensland Decl., Ex. 6 at 113 (“Moss. Dep.”) [ECF Nos. 166, 267]. At that time, Home
Depot was also selling Wing’s ladders, albeit only online. Id. at 62. In other words, the
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two companies were in direct competition with one another. See Skubic Dep. at 36. Tricam
sold over 565,000 ladders in the first year and a half that they were on the market. Miller
Decl., Ex. 57 at 15, 37 (“Cragun Report”) [ECF No. 314]. The combination of the
competitive relationship between the two companies and the volume of Tricam’s sales led
Wing’s expert, Scott Cragun, to conclude that the introduction of Tricam’s ladders cost
Wing sales and market share. Id. at 14–20. Although Cragun was able to calculate
Tricam’s resulting sales and profits, see id. at 10–12, the extent of Wing’s losses were
admittedly “difficult to quantify,” id. at 20.
Add to Cragun’s expert report two more key categories of evidence. First, there is
testimony that Home Depot required Tricam’s ladders to be ANSI-compliant and that THD
likely would not have continued selling Tricam’s ladders if it had attempted to change its
ANSI-compliance statements. Skubic Dep. at 64–65; Jackson Dep. at 151–52. Second,
there is the evidence that the Federal Circuit held establishes a triable issue of fact on the
materiality element. Specifically, Poret’s testimony tends to show that consumers find
compliance with safety standards to be important when they make purchasing decisions.
See Poret Report at 18. And a report from Tricam’s expert, Dr. Debbie Triese, tends to
show that a substantial fraction of consumers had at least heard of ANSI. See Miller Decl.,
Ex. 26 at 15 [ECF No. 289]; see also Wing Enters., 829 F. App’x at 513–15.
Collectively, this evidence, when viewed in the light most favorable to Wing, would
allow a reasonable jury to find that: (1) Tricam’s false ANSI-compliance statements
allowed it to enter and remain in the market by selling its ladders at Home Depot; (2) the
statements made consumers more likely to purchase a Tricam ladder; and (3) because of
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the direct competition between the two, at least some of those sales would have gone to
Wing if Tricam had not represented ANSI compliance. This is enough to preclude
summary judgment on Wing’s claim for injunctive relief. See Aviva Sports, 829 F. Supp.
2d at 815 (relying on a consumer study in concluding that the plaintiff had established a
sufficient likelihood of harm to seek injunctive relief). And because Cragun calculated
Tricam’s sales and profits for the challenged ladders, see Cragun Report at 10–12, Wing
has also met the injury-and-causation threshold to seek disgorgement of profits. See Aviva
Sports, 829 F. Supp. 2d at 818–19.
To be sure, as Tricam shows in its briefing, some evidence in the record points the
other way. See Tricam Mem. Supp. Summ. J. at 32–34. For example, Wing appears to
lack any hard data showing lost sales and market share. Some of its sales on the Home
Depot website were higher than projected, and in early 2018, after Tricam’s ladders had
entered the market, Wing obtained a substantial new line of business by selling its ladders
at Lowe’s. See Moss Dep. at 145; Stensland Decl., Ex. 9 at 198–99 (“Clark Dep.”) [ECF
No. 169]. Tricam also argues that Cragun’s testimony is unreliable and speculative because
he failed to quantify lost sales and market share and failed to consider other market factors
that could have contributed to any loss, such as the presence of other competitors and a
2017 product recall of Wing’s ladders.11 See Tricam Mem. Supp. Summ. J. at 32–34. But
these arguments just prove the existence of a factual dispute. Wing’s apparent inability to
quantify its losses with certainty is not fatal to its claim for injunctive relief, because it does
Tricam has not moved to exclude Cragun’s report or testimony.
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not need to identify “specific damage.” Porous Media Corp., 110 F.3d at 1335. And
Tricam will be able to explore any “infirmities” it sees in Cragun’s report through
“[v]igorous cross-examination” and “presentation of contrary evidence.” Olson v. Ford
Motor Co., 481 F.3d 619, 626 (8th Cir. 2007) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 596 (1993)).
Finally, Wing argues that it has experienced and likely will experience “price
erosion.” Wing Mem. Opp’n Summ. J. at 36–37. Tricam disputes that any price erosion
occurred and argues that, even if it did, Wing has not tied its lower prices to the allegedly
false ANSI-compliance statements. Tricam Mem. Supp. Summ. J. at 34–36.
Once again, there is a genuine factual dispute on this question. As noted above, a
reasonable juror could find that Tricam’s false ANSI-compliance statements allowed it to
enter and remain in the market by selling its ladders at Home Depot. Once in the market,
Tricam consistently charged a lower price than Wing for its ladders. Moss Dep. at 78–80;
Cragun Report at 20–24. One of the reasons Tricam was able to do this was that the
crimped design of its ladder rungs—the source of the dispute over ANSI compliance in
this case—made its ladders cheaper to manufacture.
Cragun Report at 22.
combination of a lower price and ANSI compliance understandably made Tricam’s ladders
competitive. And this led several of Wing’s retail partners, particularly Lowe’s, to
repeatedly pressure Wing to lower its prices to compete with Tricam. On one occasion,
Wing agreed, at the urging of Lowe’s, to a 27% promotional discount on 75,000 ladders in
order to compete with Tricam, and the “[e]very day” price of Wing’s ladders “[e]asily”
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dropped by $40 or $50. Miller Decl., Ex. 37 at 53, 62–63, 109–11, 116–17 (“Huffaker
Dep.”) [ECF No. 299]; Moss Dep. at 194–96. All of this informed Cragun’s conclusion
that price erosion is “currently occurring, likely ongoing, and difficult to quantify.” Cragun
Report at 24. Given this evidence, viewed in the light most favorable to Wing, a reasonable
juror could find that Wing has suffered, and is likely to continue suffering, price erosion
caused by Tricam’s false statements.
Tricam’s arguments to the contrary are similar to the ones it raised about market
share and lost sales. Specifically, it believes that Wing has failed to sufficiently tie any
price erosion to Tricam’s false statements, as opposed to its competition more generally.
And it says that Cragun’s opinion relies on “self-serving and uncorroborated speculation
and testimony” without accounting for competition from other ladder manufacturers and
other factors that affect price. Tricam Mem. Supp. Summ. J. at 35–36. These arguments
may persuade a reasonable jury, but given the state of the record, they are not an appropriate
basis to grant summary judgment.
One final note on remedies. Wing has identified sufficient factual disputes to
proceed to trial on its Lanham Act claims. Even assuming that a jury finds in its favor and
that injunctive relief is appropriate, however, there is no guarantee that Wing will
ultimately be able to obtain the monetary relief—disgorgement of profits—that it seeks.
That is because such relief is “subject to the principles of equity,” 15 U.S.C. § 1117(a), and
courts have “broad discretion” to decide whether an injunction alone will be sufficient to
do justice, Wildlife Research Ctr., Inc. v. Robinson Outdoors, Inc., 409 F. Supp. 2d 1131,
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1135 (D. Minn. 2005). The Eighth Circuit recently suggested that monetary relief under
the Lanham Act, including disgorgement of profits, is only appropriate in “exceptional”
cases. Martinizing Int’l, LLC v. BC Cleaners, LLC, 855 F.3d 847, 852 (8th Cir. 2017).
Rather than argue that its conduct was not “exceptional,” and therefore that Wing is not
entitled to monetary relief under principles of equity, Tricam has confined its arguments to
Wing’s theories of injury and causation. See Carrington v. City of Des Moines, 481 F.3d
1046, 1050–51 (8th Cir. 2007) (explaining that the moving party has the ultimate burden
to establish that it is entitled to judgment as a matter of law). Under these circumstances,
it is appropriate to defer consideration of the equities until a jury has had an opportunity to
make findings on a full trial record.
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS
ORDERED that Defendant Tricam Industries, Inc.’s Motion for Summary Judgment [ECF
No. 159] is DENIED.
Dated: January 7, 2021
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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