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World Kitchen, LLC v. American Ceramic Society

United States District Court, Seventh Circuit

September 19, 2013



JOHN W. DARRAH, District Judge.

Plaintiff World Kitchen, LLC has brought this action for trade disparagement and deceptive trade practice against Defendants The American Ceramic Society ("ACS"); Peter Wray, the editor of the Bulletin of the American Ceramic Society ("the Bulletin "); and Richard C. Bradt and Richard L. Martens, the authors of a Bulletin article entitled "Shattering Glass Cookware." Defendants have filed a Motion to Dismiss pursuant to the Illinois Citizen Participation Act, 735 Ill. Comp. Stat. 110/1 et seq., and also a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Oral arguments on both Motions were heard on August 29, 2013. For the reasons discussed below, Defendants' Motions [18, 24] are denied.


World Kitchen, headquartered in Rosemont, Illinois, is a leading manufacturer and distributor of kitchenware products, including Pyrex brand glass cookware, which it purchased in 1998 from Pyrex's original manufacturer, Corning Incorporated ("Corning"). (Compl. ¶ 27.) Defendant ACS is an Ohio corporation and, according to its website,, is comprised of "more than 9, 500 scientists, engineers, researchers, manufacturers, plant personnel, educators, students, marketing and sales professionals" with a mission "to advance the study, understanding, and use of ceramics and related materials for the benefits of our members and society." ( Id. ¶ 28.) The ACS provides its members and subscribers with access to various periodicals and books, including distributing to its members its monthly publication, the Bulletin. According to ACS, the Bulletin is "the industry's undisputed authority on news and new developments in the ceramics and glass industries" and is read by "more than 14, 000 ceramics and glass experts in more than 50 countries." ( Id. ¶ 10.) ACS expressly points out that its Bulletin feature stories are not peer-reviewed or critically assessed, as they would be for scientific journal articles, ( id. ¶¶ 11, 13) and are "not meant to be at a technical level as detailed as if they were being prepared for a peer-reviewed journal." See

At the heart of World Kitchen's Complaint is a September 2012 article entitled "Shattering Glass Cookware, " which was authored by Defendants Bradt and Martens, edited by Defendant Wray, and published as a feature story in the Bulletin. ( Id. ) The article claimed that American-made soda lime silicate glass cookware, including Pyrex, is more likely to shatter than European-made borosilicate glass cookware during normal kitchen use. ( Id. ¶ 38.) The Bulletin article further stated that incidents of shattering Pyrex cookware had been documented by the Consumer Products Safety Commission ("CPSC") and by the Consumers Union in its Consumer Reports magazine. ( Id. Ex. A.) However, according to World Kitchen's Complaint, the Bulletin article was false and misleading in several respects. For example, the Bulletin article omitted that the CPSC had examined these incidents in 2008 and had concluded that Pyrex cookware presented no safety concern and that federal safety data confirmed Pyrex's safety. ( Id. ¶ 37.) The Bulletin article also did not disclose that Consumers Union's testers intentionally subjected Pyrex glassware to extreme conditions that were outside of normal kitchen use and that were intended to induce shattering, such as filling the glassware with sand (which doubles the heat), superheating it to 450ºF for 80 minutes, then placing it on a cold stone surface soaked with water. ( Id. ¶¶ 42(d), (g).) Also omitted was the fact that Defendant Bradt, the main author, had a financial stake in disparaging Pyrex, because he serves as an expert witness for personal injury plaintiffs suing manufacturers of soda lime silicate glass cookware. ( Id. ¶ 29.)

Furthermore, World Kitchen contends that Bradt and his co-author, Defendant Martens, improperly analyzed the thermal stress resistance ("TSR") properties of Pyrex, which is heat-strengthened, by calculating a TSR of soda lime silicate glass that had not been heat-strengthened and does not have a TSR comparable to Pyrex. ( Id. ¶¶ 42(c), (f), Ex. A.) Instead, the authors concluded, allegedly without proper scientific study, that heat-strengthening appeared to be ineffective and not sufficient to increase the TSR. ( Id. Ex. A.) The authors' tests allegedly falsely concluded that Pyrex is only "borderline safe" and "inadequate" for normal kitchen use, cannot withstand a modest temperature differential of 99ºF, and is much more likely to shatter than European-made glassware. ( Id. ¶¶ 42(d)-(g), Ex. A.) Around the same time that the Bulletin article appeared, Defendant Wray issued a blog post entitled "Hell's Kitchen: Thermal Stress and Glass Cookware that Shatter, " which emphasized the false statements in the Bulletin article and claimed that Pyrex was "prone to frequent failure." ( Id. ¶¶ 31, 39, 60, Exs. A, B.) Following the blog post, on September 6, 2012, ACS issued a "News Release, " which further promoted the Bulletin article as explaining why glass cookware sold in the United States, including Pyrex glass cookware, "is more susceptible" to "explosive shattering" and "exposing consumers to injury from flying glass shards." ( Id. ¶¶ 40, 59.) On September 22, 2012, World Kitchen sent a letter to ACS requesting a retraction and removal of the Bulletin article, blog post and press release; ACS declined to do so. ( Id. ¶¶ 22-25.)

World Kitchen subsequently filed this action, alleging violations of Illinois Uniform Deceptive Trade Practices Act ("UDTPA"), 815 ILCS 510/2(7), (8), and (12) (Count I) and common law trade disparagement (Count II). Its Complaint seeks an injunction against the Bulletin article and an order compelling a retraction and confessing scientific malfeasance. Defendants have moved to dismiss the Complaint for failure to state a claim under 12(b)(6) and under the Illinois Citizen Participation Act, 735 Ill. Comp. Stat. 110/1 et seq.


To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint satisfies this threshold of facial plausibility when it has sufficient factual allegations that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a plaintiff need only provide "enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, " Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 764 (7th Cir. 2010) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)), a mere "formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. When evaluating a motion to dismiss under Rule 12(b)(6), all factual allegations in the complaint are taken as true, and all reasonable inferences are drawn in favor of the plaintiff. White v. Marshall & Ilsley Corp., 714 F.3d 980, 985 (7th Cir. 2013).

Under Federal Rule of Civil Procedure 12(b), "[i]f, on a motion asserting... failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...." Venture Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). However, there are some exceptions to this rule. The court may take judicial notice of matters of public record without converting the motion to a motion for summary judgment. Anderson v. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000). Further, documents that a defendant attached to a motion to dismiss can be considered part of the pleadings if "they are referred to in the plaintiff's complaint and are central to [his] claim." Venture, 987 F.2d at 431. All other matters outside the pleadings should not be considered under a Rule 12(b)(6) motion to dismiss.


Defendants' 12(b)(6) Motion to Dismiss

World Kitchen asserts trade disparagement claims both under common law and UDPTA against Defendants. In relevant part, UDPTA provides that defendant "engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, the person":

(7) represents that goods or services are of a particular standard, quality, or grade or that goods are a particular style ...

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