Carpet installers Empire Today and National Floors Direct (NFD) were engaged in a dispute stemming from fierce direct competition and the departure of roughly ten managers and thirty sales representatives from Empire to NFD “under acrimonious conditions.”
At trial (a rare occurrence before Judge Tauro) Empire asserted trademark infringement and various tortious interference claims against NFD. NFD asserted counterclaims for defamation, false advertising and abuse of process. The jury found against the plaintiff on all its affirmative claims and in favor of defendant on its abuse of process counterclaim, awarding $500,000 in damages. Each party cross moved for JMOL as well as for judgment on dueling 93A claims. Judge Tauro’s eventual decision was to leave the parties in the same condition the jury left them.
The extensive post-trial memorandum ran through the litany of facts discussed during the thirteen day trial. Of particular note, Judge Tauro ruled there was sufficient evidence to support the jury’s abuse of process decision including evidence that Empire’s legal action was motivated, at least in part, at trying to distract NFD and cause it to spend money. Testimony by NFD’s President that NFD spent over $1.5 million in defense costs (and that diversion of those funds from advertising led to a larger amount of lost profits) supported the jury’s damages award. These facts, however, were insufficient for Judge Tauro to find a 93A violation. He found that the evidence failed to show the requisite level of rascality.
Empire’s 93A claim fared no better. Judge Tauro held that NFD’s occasional failure to properly calculate an advertised 15% off promotion (certain NFD personnel sometimes divided by 1.15 instead of multiplying by 0.85) was not sufficient to show false advertising with resulting liability under 93A. The advertisements were held to be (1) not literally false, (2) not the cause of consumer confusion, and (3) not the cause of damage to Empire.
Empire Today, LLC v. National Floors Direct, Inc., 08-11999-JLT (D. Mass. June 2, 2011)08-11999-JLT (D. Mass. June 2, 2011)