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Dyson, Inc. v. Bissell Homecare, Inc.

United States District Court, N.D. Illinois

June 14, 2013

DYSON, INC., Plaintiff,
v.
BISSELL HOMECARE, INC., Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Dyson, Inc., Plaintiff: Ann Marie T Wahls, David Kenneth Callahan, Jason Michael Koransky, Megan Margaret New, Robin Ann McCue, Kirkland & Ellis LLP, Chicago, IL; Brendan J. O'Rourke, PRO HAC VICE, Lawrence I Weinstein, Proskauer Rose LLP, New York, NY; Catherine J. Spector, Steven Ross Gilford, Proskauer Rose LLP (70W), Chicago, IL.

For Bissell Homecare, Inc., Defendant: David Craig Hilliard, LEAD ATTORNEY, Andrew Nelson Downer, Hans Ulrich Widmaier, Pattishall, McAuliffe, Newbury, Hillard & Geraldson, Chicago, IL; Abby Marie Mollen, Shayna Susanne Cook, Bartlit Beck Herman Palenchar & Scott, Chicago, IL; Ashly Iacullo Boesche, Pattishall, McAuliffe, Newbury, Hillard & Geraldson, LLP, Chicago, IL; Janet L Ramsey, PRO HAC VICE, Warner Norcross & Judd Llp, Grand Rapids, MI; Jeffrey Allan Hall, Mark Edward Ferguson, Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL.

For IBR Laboratories, Inc., Movant: Paul J. Korniczky, Leydig, Voit & Mayer, Ltd., Chicago, IL.

OPINION

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MEMORANDUM OPINION

Samuel Der-Yeghiayan, United States District Court Judge.

This matter is before the court on Plaintiff Dyson, Inc.'s (Dyson) motion for partial summary judgment. This matter is also before the court on Defendant Bissell Homecare, Inc.'s (Bissell) motion to exclude the expert report of Ran Kivetz (Kivetz), Bissell's motion to disqualify Susan Goldsmith (Goldsmith) from serving as an expert, and Bissell's motion for summary judgment. For the reasons stated below, Dyson's partial motion for summary judgment is granted in its entirety and Bissell's motions are denied in their entirety.

BACKGROUND

Bissell allegedly indicates in its advertising that consumers can improve their respiratory health by using a Bissell vacuum cleaner. Bissell allegedly touts the specific air filtration performance of eleven different models of Bissell vacuum cleaners (Bissell Vacuum Cleaners) on its website, product packaging, and the products themselves.

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Dyson alleges that through such advertising, Bissell has deceived consumers into buying less-expensive Bissell Vacuum Cleaners by falsely assuring consumers that the Bissell Vacuum Cleaners will provide the same air filtration performance as Dyson's more-expensive vacuum cleaners (Dyson Vacuum Cleaners). Dyson filed the instant action challenging certain advertising claims made by Bissell with respect to the Bissell Vacuum Cleaners.

The following models at issue in this case (collectively referred to as " OS Vacuum Cleaners" ) are open-system vacuum cleaners, meaning that the vacuum cleaners are not sealed, and have some leakage of air in gaps and seams in the products: CleanView Helix (Model Series #82H1), Rewind SmartClean (Model Series #58F8, 18M9-P), Lift-Off MultiCyclonic Pet (Model Series #89Q9), Pet Hair Eraser (Model Series #3920), Momentum (Model Series #82G71), PurePro Multi Cyclonic (Model Series #59G9), DigiPro Canister (Model Series #6900), Pet Hair Eraser Canister (Model Series #66T6), Pet Hair Eraser Corded Hand Vacuum (Model Series #33A1-B), and CleanView Deluxe Corded Hand Vacuum (Model Series #47R5/47R5-1). Dyson's claims in this case also relate to Bissell's Healthy Home (Model Series 16N5) vacuum cleaner, which is a closed-system vacuum cleaner, meaning that the unit itself is sealed, allowing no air to escape from the gaps and seams in the product.

In 2010, Bissell allegedly stated on its website, on product packaging, and on certain OS Vacuum Cleaners themselves that the OS Vacuum Cleaners had a " HEPA Media Filter," and that the filters or vacuum cleaners " capture[d] over 99.9%" of certain allergens (collectively referred to as " 2010 Statements" ). (DSF Par. 24, 25). Dyson asserts that " High Efficiency Particulate Air," commonly referred to as " HEPA," is the term used in the United States to indicate that a filter or filtration system traps 99.97% of dust and other particles that are 0.3 microns [1] in size. Dyson contends that the 2010 Statements are false because the OS Vacuum Cleaners do not meet HEPA standards or capture more than 99.9% of allergens. With respect to the Healthy Home vacuum cleaner, Dyson alleges that Bissell falsely represented to consumers that the Healthy Home vacuum cleaner was " airtight" and that it captured 100% of certain allergens.

Before initiating the instant action, Dyson allegedly commissioned independent testing of the Bissell Vacuum Cleaners using industry standard tests (Testing). Dyson contends that the Testing shows that the filtration performance of the OS Vacuum Cleaners does not come close to HEPA level, and that the allergen capture performance of the OS Vacuum Cleaners does not come close to the 99.9% figure that Bissell claims in its advertising. The Testing also allegedly reveals that the filters used in the OS Vacuum Cleaners do not even themselves meet HEPA standards or fulfill the 99.9% capture claims advertised by Bissell. In addition, the Testing allegedly reveals that the Healthy Home vacuum cleaner is not airtight, and

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that its performance is also below HEPA level.

Dyson contends that after it sued Bissell in the instant action, Bissell amended the 2010 Statements to try to rectify the inaccuracies in the 2010 Statements. Beginning in January 2011, after the instant action was initiated, Bissell allegedly provided new statements regarding the OS Vacuum Cleaners (2011 Statements). The 2011 Statements allegedly included a disclaimer, indicating that only the filter, and not the vacuum cleaner as a whole, met HEPA standards (2011 Disclaimer). (DSF Par. 28). In 2012, Bissell allegedly altered the 2011 Statements on the OS Vacuum Cleaners and again revised the graphics on certain packaging. (DSF Par. 31).

Dyson alleges that its founder and principal inventor spent years developing a bagless vacuum that could separate dust and debris from incoming air flow while maintaining a constant, high level of suction throughout the vacuum's life. As a result of their unique designs and superior filters, the air filtration performance of Dyson Vacuum Cleaners is allegedly far superior to the air filtration performance of Bissell Vacuum Cleaners. In addition, Dyson Vacuum Cleaners are allegedly certified as asthma and allergy friendly by the Asthma and Allergy Foundation of America (AAFA), whereas no model of Bissell's vacuum cleaners has ever been certified by the AAFA.

Dyson contends that Bissell knows the importance that modern consumers place on products that promote health, and that Bissell knows that its advertising claims relating to Bissell Vacuum Cleaners are false. Dyson also alleges that Bissell's advertising claims are especially harmful to consumers because consumers have no way to independently determine whether they are truthful. Consumers have allegedly relied on, and will allegedly continue to rely on, Bissell's allegedly false advertising claims when determining which vacuum to purchase. As a result, in addition to the alleged harm to the respiratory health of consumers caused by Bissell's alleged deception, Bissell's allegedly false advertising claims have allegedly financially harmed Dyson, as Bissell's direct competitor.

Dyson includes in its complaint a false or deceptive advertising claim brought pursuant to the Lanham Act, 15 U.S.C. § 1051 et seq. (Count I), a claim brought pursuant to the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq. (Count II), a claim brought pursuant to the Illinois Consumer Fraud and Deceptive Trade Practices Act, 815 ILCS 505/1 et seq. (Count III), and a common law unfair competition claim (Count IV). Bissell answered the complaint and included as affirmative defenses: failure to state a claim, laches, statute of limitations, acquiescence, estoppel, release, and unclean hands. Dyson now moves for partial summary judgment on the 2010 Statements and Bissell's affirmative defenses of failure to state a claim, laches, statute of limitations, acquiescence, estoppel, and release. Bissell now moves for summary judgment on all claims and the affirmative defenses of release and laches. Bissell also moves to exclude the expert report of Kivetz and to disqualify Goldsmith from serving as an expert in this case.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A " genuine issue" of material fact in the context of a

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motion for summary judgment is not simply a " metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists when " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for summary judgment, the court should " construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

DISCUSSION

I. Motion to Exclude the Expert Report of Kivetz

Bissell argues that the court should exclude the expert report of Kivetz. As the proponent of Kivetz's expert report, Dyson bears the burden of establishing that it is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). An expert's testimony is admissible only if it meets the requirements of Federal Rule of Evidence 702 (Rule 702) and the factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Lees v. Carthage College, 714 F.3d 516, 2013 WL 1590038, at *4 (7th Cir. 2013)(discussing the court's " special gatekeeping obligation" under Rule 702 and Daubert to " ensure that [expert] evidence is relevant and reliable before admitting it" ). Pursuant to Rule 702 and Daubert, " [f]irst, the expert must be qualified by knowledge, skill, experience, training, or education; second, the proposed expert testimony must assist the trier of fact in determining a relevant fact at issue in the case; third, the expert's testimony must be based on sufficient facts or data and reliable principles and methods; and fourth, the expert must have reliably applied the principles and methods to the facts of the case." Id. In addition, " the reliability analysis should be geared toward the precise sort of testimony at issue and not any fixed evaluative factors." Id. (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

Kivetz's expert report relates to a consumer survey (Survey) that Kivetz conducted regarding certain advertising claims made on the packaging of Bissell's CleanView Helix vacuum cleaner (CleanView Packaging). The Seventh Circuit has indicated that in order to be admissible, a consumer survey " must comply with the principles of professional survey research." Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 776 (7th Cir. 2007); see also Muha v. Encore Receivable Management, Inc., 558 F.3d 623, 625-26 (7th Cir. 2009) (recognizing that whether a consumer survey should be admitted " depends among other things on 'whether the questions are leading or suggestive'" )(citations omitted); Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387, 396 (7th Cir. 1992)(indicating that to be admissible, a survey must " replicate market conditions" and be free of bias). The Seventh Circuit has also cited with approval precedent from the Second Circuit, the Third Circuit, the Fifth Circuit,

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and the Southern District of New York in recent cases in which the admissibility of a consumer survey was at issue. See e.g., Muha, 558 F.3d at 625-26; see also, e.g., Evory, 505 F.3d at 776. When considering whether to admit a consumer survey, courts in those circuits focus on such factors as " whether (1) the 'universe' was properly defined, (2) a representative sample of that universe was selected, (3) the questions to be asked of interviewees were framed in a clear, precise and nonleading manner, (4) sound interview procedures were followed by competent interviewers who had no knowledge of the litigation or the purpose for which the survey was conducted, (5) the data gathered was accurately reported, (6) the data was analyzed in accordance with accepted statistical principles and (7) the objectivity of the entire process was ensured." Schering Corp. v. Pfizer Inc. 189 F.3d 218, 225 (2d Cir. 1999); Weight Watchers Intern., Inc. v. Stouffer Corp., 744 F.Supp. 1259, 1272 (S.D.N.Y. 1990)(listing factors relevant to determining admissibility of a consumer survey). In addition, the Seventh Circuit has indicated with respect to consumer surveys that " [w]hile there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact and therefore inadmissible, . . . such situations will be rare," and that generally, " any shortcomings in the survey results go to the proper weight of the survey and should be evaluated by the trier of fact." AHP Subsidiary Holding Co. v. Stuart Hale Co., 1 F.3d 611, 618 (7th Cir. 1993).

In this case, the Survey designed by Kivetz was used to examine the effect of certain advertising claims that Bissell makes on the CleanView Packaging (CleanView Claims), which the court notes are representative of all of the advertising claims at issue in this case. The CleanView Claims are located on four panels of the CleanView Packaging and state: " HEPA Media Filter* - The filter captures 99.9% of pollens and ragweed from the air passing through it." (Kivetz Rep. Par. 12). The CleanView Packaging also includes the 2011 Disclaimer on the lower left corner of the back panel, which states: " *The filter media, not the vacuum as a whole, complies with the High Efficiency Particulate Air (HEPA) filter specification (EN 1822-1-2009)." (Kivetz Rep. Par. 12).

A total of 407 consumers participated in the Survey (Participants), with approximately half being assigned to a test group (Test Group) and approximately half being assigned to a control group (Control Group). (Kivetz Rep. 13). The Test Group viewed the CleanView Packaging with the CleanView Claims and the 2011 Disclaimer, while the Control Group viewed a modified version of the packaging (Modified Packaging). The revisions to the Modified Packaging included a modified disclaimer (Modified Disclaimer), located directly below the CleanView Claims, which stated: " *The vacuum during operation does not meet the HEPA filter specifications." (Kivetz Rep. Par. 30, 38); (Kivetz Rep. Ex G). While viewing either the CleanView Packaging or the Modified Packaging, Participants were asked several questions (Survey Questions) regarding what, if anything, was being communicated to them about the HEPA Media Filter and about the vacuum cleaner as a whole. (Kivetz Rep. Ex. F).

Neither the interviewers, their supervisors, or the Participants were aware of the purpose of the Survey. (Kivetz Rep. Par. 21). After the Survey, the responses of the Participants (Survey Responses) were coded by an independent coder (Coder) who was similarly unaware of the parties or objectives of the Survey. (Kivetz Dep. 22). After reviewing the coded

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data, Kivetz concluded that the CleanView Claims caused a " 27% net deception level," and that " there is a meaningful and significant likelihood that the [CleanView Packaging] causes consumers to believe that the vacuum cleaner during operation provides the air filtration performance claimed on its package." (Kivetz Rep. Par. 54). Kivetz also concluded that the 2011 Disclaimer " is ineffective at communicating to consumers that the vacuum during operation does not meet HEPA filter specifications." (Kivetz Rep. Par. 52, 55)(emphasis in original). Bissell now challenges the admissibility of Kivetz's expert report, contending that the Survey Questions were problematic, that the coding of the Survey Responses was subjective, and that the methodology of the Survey was flawed.

A. Survey Questions

Bissell argues that the Survey Questions did not address the relevant issue and that they were based on undefined terminology. During the Survey, Participants were first asked " what message or messages, if any, does this package mainly communicate to you about this product?" (Question 1a), and Participants were then asked " Anything else?" (Question 1b). (Kivetz Rep. Par. 32). Participants' responses to Question 1a and Question 1b were recorded verbatim. (Kivetz Rep. Par. 32). Participants were next asked the filter question " Does or doesn't this package communicate to you anything about a HEPA Media Filter?" (Question 2). (Kivetz Rep. Par. 33). Participants were excused from the Survey if they indicated in the negative or indicated that they did not know. (Kivetz Rep. Par. 34). Participants who indicated in the affirmative were asked the follow-up question " What does this package communicate to you about a HEPA Media Filter?" (Question 3a), and then " What else, if anything, does this package communicate to you about a HEPA Media Filter?" (Question 3b). (Kivetz Rep. Par. 34). Participants' responses to Question 3a and 3b were also recorded verbatim. Subsequently, Participants were asked the additional filter question:

" Do you think that:

This package does communicate to you whether the vacuum provides HEPA level performance during operation
This package does not communicate to you whether the vacuum provides HEPA level performance during operation, or
Do you not know?"

(Question 4). (Kivetz Rep. Par. 35). If a Participant selected " This package does communicate to you whether the vacuum provides HEPA level performance during operation," the Participant was asked the follow-up questions " What does this package communicate to you about whether the vacuum provides HEPA level performance during operation?" (Question 5a), and " What else, if anything, does this package communicate to you about whether the vacuum provides HEPA level performance during operation?" (Question 5b). Participants' responses to Questions 5a and 5b were also recorded verbatim.

Bissell argues that Questions 4, 5a, and 5b did not address the relevant question: whether Participants believed that the CleanView Claims related to the vacuum cleaner as a whole or merely to the filter. Instead, according to Bissell, the Survey Questions caused Participants to erroneously draw the distinction " between the vacuum during operation and the vacuum when not in operation." (Mot. Disqu. K 8). To support its position, Bissell points to a handful of Survey ...


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