[00:00:00] Speaker 03:
We'll now turn to case 19-2279, Wing Enterprises versus Tricam Industries.

[00:00:08] Speaker 03:
Mr. Miller, whenever you're ready.

[00:00:11] Speaker 05:
Thank you, Your Honor.

[00:00:13] Speaker 05:
Mark Miller on behalf of Appellant Wing Enterprises, also known as the Little Giant Ladder Company.

[00:00:19] Speaker 05:
May it please the court?

[00:00:21] Speaker 05:
Wing is asking this court to reverse three decisions from the district court.

[00:00:26] Speaker 05:
The first is the summary judgment decision that was based on an alleged lack of evidence of materiality in the false advertising claim.

[00:00:35] Speaker 05:
The other two decisions excluded two surveys commissioned by WING's expert witness Hal Perrett.

[00:00:43] Speaker 05:
It's important to view this appeal from the perspective that originally Tricam challenged the expert opinion of Dr. Bloswick, which found that Tricam bladders

[00:00:55] Speaker 05:
do not satisfy the industry safety standard under ANSI, the American National Standards Institute.

[00:01:02] Speaker 05:
They don't reiterate that challenge on appeal.

[00:01:05] Speaker 05:
They no longer raise their alleged compliance with ANSI as an alternative grounds for affirmance.

[00:01:11] Speaker 05:
So it's proper to view this appeal from the perspective, assuming that while Tricam tells consumers that they meet the ANSI standard, their ladders do not in fact meet the ANSI standard.

[00:01:26] Speaker 05:
With that backdrop, the fundamental error that the district court committed was the district court found that no reasonable jury could find that a statement about a ladder's compliance with the industry safety standards under ANSI could be material without direct evidence of actual consumer influence.

[00:01:49] Speaker 05:
That is the way the district court applied the relevant standard.

[00:01:55] Speaker 05:
I think the better question is, how could a reasonable jury not conclude that an advertising statement that a ladder complies with the industry safety standard is material?

[00:02:08] Speaker 00:
This is Judge Triander.

[00:02:10] Speaker 00:
Can I just begin by clarifying one thing?

[00:02:14] Speaker 00:
Are we talking here about

[00:02:16] Speaker 00:
to remaining allegedly false advertisements, or is the guerilla.com situation still in the case, or is that out of the case?

[00:02:32] Speaker 05:
Your Honor, I think technically the guerrilla.com is only in the case for the brief period that it appeared after filing the complaint or the brief period that it appeared until it was taken down.

[00:02:46] Speaker 05:
After we filed our lawsuit, there was a few months, I can't remember the timeframe, but eventually Tricam removed

[00:02:54] Speaker 05:
both ANSI and OSHA from its own website.

[00:02:58] Speaker 05:
I think primarily the focus is on the homedepot.com statement and on the label statement on the side of the ladder.

[00:03:07] Speaker 00:
So those two statements both refer to some kind of combination of OSHA and ANSI.

[00:03:16] Speaker 00:
And taking as a given, which I think we have to, that it is not properly in this case because not

[00:03:24] Speaker 00:
because of the magistrate judge's ruling that it was not pledged in a timely fashion, we have to accept that there's no charge in this case of falsity as to OSHA compliance.

[00:03:38] Speaker 00:
If that's right, then why is the question not the following?

[00:03:44] Speaker 00:
Was there evidence from which a jury could reasonably conclude that ANSI compliance, independent of

[00:03:54] Speaker 00:
OSHA compliance would matter to consumers?

[00:03:59] Speaker 05:
I think there is, Your Honor.

[00:04:00] Speaker 05:
First of all, I don't think the homedepot.com statements are combined and the OSHA statements.

[00:04:08] Speaker 05:
There is a line item on the website that says

[00:04:11] Speaker 05:
certifications and warranties, and it says ANSI certified, and then it also has like a semicolon, it'll say OSHA compliant.

[00:04:19] Speaker 05:
Those are two separate statements, and we're only challenging the ANSI certified.

[00:04:25] Speaker 00:
I'm not sure that, I'm not seeing quite how that changes my focus.

[00:04:30] Speaker 00:
Why isn't the question whether consumers would likely be influenced on the assumption that OSHA compliance was present

[00:04:40] Speaker 00:
by a statement, an additional statement that there's also ANSI compliance.

[00:04:48] Speaker 00:
Isn't it?

[00:04:49] Speaker 00:
Well, the evidence.

[00:04:50] Speaker 00:
Go on.

[00:04:51] Speaker 00:
Sorry about that.

[00:04:52] Speaker 05:
I didn't mean to interrupt.

[00:04:53] Speaker 05:
No, no.

[00:04:53] Speaker 05:
Please go on.

[00:04:55] Speaker 05:
The evidence is this.

[00:04:56] Speaker 05:
There is evidence in the case that consumers understand what ANSI is as an industry safety standard.

[00:05:04] Speaker 05:
And whether or not there's OSHA compliance

[00:05:07] Speaker 05:
If consumers consider compliance with industry safety standards important and they find that one ladder will not comply with ANSI, then that is enough for a jury to reasonably conclude that that can have an impact on consumers.

[00:05:24] Speaker 05:
TriCAM's president, Jeff Scubic, testified they would never market a ladder without ANSI compliance.

[00:05:34] Speaker 05:
That's undisputed.

[00:05:36] Speaker 05:
And it's because he said, if consumers are going to compare ladders, we want them to know we comply with ANSI.

[00:05:44] Speaker 05:
He didn't say, I would never market a ladder that wasn't OSHA compliant.

[00:05:49] Speaker 05:
And it's because in the industry, it's also undisputed.

[00:05:52] Speaker 05:
The general practice is the only way these ladder manufacturers comply with OSHA is they comply with ANSI and rely on ANSI to do so.

[00:06:02] Speaker 05:
Whether or not it's technically or theoretically possible to comply with OSHA without complying with ANSI, the overwhelming evidence is that in this industry, ladder manufacturers rely on ANSI compliance to label a ladder as OSHA compliant.

[00:06:23] Speaker 03:
And there is no practical... This is Sharon Price.

[00:06:27] Speaker 03:
I'm not clear on what the...

[00:06:29] Speaker 03:
what manufacturers rely on, how that translates to what consumers rely on.

[00:06:35] Speaker 03:
There were survey results from Dr. Trias and I think his statistics, and his statistics show that there was very little, if any, awareness of what he is on behalf of consumers.

[00:06:53] Speaker 03:
Is there any, so what you're talking about in terms of statements by manufacturers,

[00:06:58] Speaker 03:
in terms of what they care about.

[00:07:00] Speaker 03:
I'm not sure I'm seeing how that translates to what consumers would recognize.

[00:07:07] Speaker 05:
Let me address both of those points.

[00:07:09] Speaker 05:
First, Dr. Treese's survey does show a significant number of consumers recognize ANSI and understand what ANSI is.

[00:07:20] Speaker 05:
That is the data from her

[00:07:22] Speaker 05:
survey.

[00:07:24] Speaker 05:
It also demonstrates that a high percentage of consumers will read the side label of a ladder and remember that the side label will indicate compliance with safety standards.

[00:07:36] Speaker 05:
To the other point you raised, the case law recognizes that you can prove a likelihood of consumer influence

[00:07:48] Speaker 05:
with indirect circumstantial evidence.

[00:07:50] Speaker 05:
It doesn't have to be direct evidence of actual influence.

[00:07:55] Speaker 05:
And this court's decisions, as well as eight circuit decisions, will recognize that the manufacturer's intent, if the intent in the advertisement is to influence consumers, a jury's allowed to infer from that that it's likely to do so.

[00:08:13] Speaker 05:
And that's where the evidence is relevant.

[00:08:16] Speaker 05:
If the industry itself, for example, Mr. Verhalen, he was the head of the labeling committee for ANSI.

[00:08:26] Speaker 05:
He said that the purpose of the ANSI standards requirement that ANSI compliance be on the label is for consumer notifications.

[00:08:36] Speaker 05:
That's the purpose the industry put in the standard.

[00:08:40] Speaker 05:
It's not just that you comply with it, but you have to label it as compliant for purposes of notifying consumers.

[00:08:46] Speaker 05:
And Mr. Scubic said, if consumers are going to compare our products to our competitors who comply with ANSI, we want it there.

[00:08:54] Speaker 05:
If you've ever been on homedepot.com, you can click, I want to compare a little giant ladder to a gorilla ladder to a Werner ladder.

[00:09:02] Speaker 05:
And then you can scroll down and compare all of the different line items of the specifications of these ladders.

[00:09:08] Speaker 05:
And one of those line items is certification.

[00:09:11] Speaker 05:
And if a consumer sees ANSI certified on one and there's no ANSI certified on the other,

[00:09:18] Speaker 05:
that could influence consumer decisions.

[00:09:20] Speaker 05:
And the fact that Tricam, with its decades in the industry, feels that that's important enough that they would never market a ladder without ANSI, that supports an inference that consumers are likely to be influenced.

[00:09:35] Speaker 05:
And that's the important part of that standard.

[00:09:38] Speaker 05:
And the federal law around the country, the vast majority recognize that in some cases,

[00:09:46] Speaker 05:
Some cases you can show materiality by reference to the nature of the accused statement itself and the context of the product being advertised.

[00:09:57] Speaker 05:
And that is what we have in this case.

[00:10:01] Speaker 02:
Counselor, this is Judge Raina.

[00:10:03] Speaker 02:
I hate to interrupt you here, but I want you to go back to the testimony or the opinion of Dr. Treacy.

[00:10:12] Speaker 02:
And in your brief page 19, you have specifically 87% of ladder shoppers considered the information, and you have other data.

[00:10:23] Speaker 02:
And then it says D, 61.7% clearly knew what OSHA does.

[00:10:29] Speaker 02:
42.4 have heard of ANSI, and 21.9% clearly knew what ANSI is.

[00:10:37] Speaker 02:
It seems to me that since this was presented as rebuttal,

[00:10:42] Speaker 02:
that if you're going to start comparing these different surveys, you've done more than enough to raise a genuine issue of material fact.

[00:10:50] Speaker 02:
Can you tell me what the basis of the district court was to determine that that particular survey data did not present a genuine issue of material fact?

[00:11:03] Speaker 05:
Actually, that's one of the problems is once the district court

[00:11:08] Speaker 05:
In the district court's opinion, once it got through Mr. Perrette's surveys and excluded them and proceeded to address the additional evidence of materiality we presented outside of Mr. Perrette's surveys, the district court never acknowledged Dr. Treese's survey as part of that evidence.

[00:11:26] Speaker 05:
The district court didn't even acknowledge that we had raised that as independent evidence of materiality, which is one of the errors we ascribed to the district court in our briefing.

[00:11:37] Speaker 05:
I heard the tone that I'm into my rebuttal time.

[00:11:41] Speaker 05:
If there's no other questions, I'll reserve the rest for rebuttal.

[00:11:45] Speaker 03:
Thank you very much.

[00:11:46] Speaker 03:
Let's hear from the other side.

[00:11:48] Speaker 03:
Mr. Chadwick.

[00:11:50] Speaker 01:
Thank you, Your Honor.

[00:11:50] Speaker 01:
May it please the court?

[00:11:52] Speaker 01:
I'm counsel for TriCam Industries.

[00:11:54] Speaker 01:
Even giving all reasonable inferences here, there's no evidence of materiality.

[00:12:01] Speaker 01:
And the court didn't abuse its discretion.

[00:12:04] Speaker 01:
in excluding PORET or granting summary judgment, it didn't commit error.

[00:12:08] Speaker 01:
I think it was Judge Rain that just asked about Debbie Treacy's survey that was cited by Wing that people, a certain number of people knew what ANSI was.

[00:12:25] Speaker 01:
And the issue was, or the question was, why doesn't that create an issue of fact?

[00:12:30] Speaker 01:
The issue there, or the problem with that is,

[00:12:33] Speaker 01:
The survey that Dr. Treacy performed never showed any of the alleged false statements.

[00:12:43] Speaker 01:
And materiality is clear in the Eighth Circuit.

[00:12:46] Speaker 01:
3M says this.

[00:12:49] Speaker 01:
It's reiterated in Porous v. Paul that you have to look at the misleading statements themselves.

[00:12:57] Speaker 01:
And that has to be what is material to consumers.

[00:13:03] Speaker 01:
So the fact that consumers might know something about ANSI or might know something about OSHA isn't material to whether or not the actual statement would likely be material to their purchase decision.

[00:13:18] Speaker 01:
And that's why the court was right to not look at the 3C report as creating an issue of fact that would preclude summary judgment.

[00:13:28] Speaker 02:
Was there not evidence that consumers looked to

[00:13:33] Speaker 02:
on ladders and consider safety information in that regard?

[00:13:38] Speaker 01:
The evidence from her was that consumers said they looked at the side of a ladder, and they recalled certain issues, safety, weight rating, and so on and so forth.

[00:13:54] Speaker 01:
But again, if we look at the details of her survey, which Wing didn't get into,

[00:14:00] Speaker 01:
What she said was, I think the number was 1% or 2% recalled ANSI.

[00:14:05] Speaker 01:
So using a proxy here of safety, which is what Wing wants to do.

[00:14:12] Speaker 02:
It says 42.4% have heard of ANSI, and 21.9% clearly knew what ANSI is.

[00:14:18] Speaker 02:
But that's just as to what they know ANSI is.

[00:14:21] Speaker 02:
The issue still remains that safety considerations

[00:14:27] Speaker 02:
is central to a consumer's buying decision.

[00:14:30] Speaker 02:
I think that's what some of the polling surveys show as well.

[00:14:34] Speaker 01:
Right, Your Honor.

[00:14:35] Speaker 01:
And the issue, we're right on the nub of the issue here.

[00:14:39] Speaker 01:
The question to be asked on materiality is not... Excuse me.

[00:14:44] Speaker 02:
So we're at the nub of the issue, and I agree.

[00:14:47] Speaker 02:
But you have one survey that distinctly divides data

[00:14:55] Speaker 02:
by OSHA and ANSI.

[00:14:59] Speaker 02:
And the other survey, the polling surveys, were found to be irrelevant because it didn't make that type of a divide.

[00:15:08] Speaker 02:
Its data was to both OSHA and ANSI combined.

[00:15:11] Speaker 02:
But this other survey does make a clear division.

[00:15:15] Speaker 02:
And when you put those together and one is offered up as rebuttal against the other, isn't there a genuine issue of material fact at play?

[00:15:25] Speaker 01:
No, Your Honor.

[00:15:28] Speaker 01:
No, there's not.

[00:15:29] Speaker 01:
And the reason why is that 3M says we need to know if the actual misleading statement itself would likely influence purchasers.

[00:15:42] Speaker 01:
Dr. Treacy never showed that to purchasers.

[00:15:45] Speaker 01:
So what we're doing here and what Wing has done quite well, I think, is to argue a proxy for the actual statement.

[00:15:54] Speaker 01:
They've moved away from the statements and they said, well, it was about safety, and everybody cares about safety, so it's material.

[00:16:01] Speaker 01:
And that's not what the law requires.

[00:16:04] Speaker 01:
The law requires that you look at the specific misrepresentation and ask if that is material to consumers.

[00:16:13] Speaker 01:
And nobody ever did that in this case.

[00:16:16] Speaker 00:
This is just Toronto.

[00:16:18] Speaker 00:
Can I ask you this question, focusing just on the importance survey?

[00:16:22] Speaker 00:
The important survey asked, and I think got a pretty substantial positive response, as one would expect, basically whether consumers care about compliance with industry safety standards.

[00:16:37] Speaker 00:
I think I've got the language right.

[00:16:39] Speaker 00:
There's only one industry safety standard, ANSI.

[00:16:42] Speaker 00:
Why isn't that survey enough to establish that consumers are likely to be influenced by compliance with ANSI standards?

[00:16:50] Speaker 01:
Well, Your Honor, I don't think it's accurate that there's only one

[00:16:53] Speaker 01:
industry safety standard.

[00:16:56] Speaker 01:
WING itself has called OSHA an industry safety standard in its briefing.

[00:17:00] Speaker 01:
They also refer to the CSA, which I believe is the Canadian Safety Association.

[00:17:05] Speaker 00:
Yeah, but we can restrict it to the United States, can't we?

[00:17:09] Speaker 01:
Fair enough, but you've still got OSHA in hand.

[00:17:12] Speaker 00:
Would one call a government regulation and industry safety standard

[00:17:20] Speaker 01:
Yes, I think they would.

[00:17:21] Speaker 01:
And as I said, Wing did so in its briefing at the district court.

[00:17:24] Speaker 00:
Was that at the same time as and basically before Wing woke up to the fact that the OSHA regulations don't keep up to date with ANSI changes and therefore Wing was still conflating OSHA standards with current ANSI standards instead of 1956 and 1977 versions?

[00:17:49] Speaker 01:
Yeah, I don't recall, Your Honor, exactly when they said that.

[00:17:52] Speaker 00:
And I'm not certain when it is that they became aware of the problems in terms of incorporation by reference of... But if a survey says, as I said, I mean, if I think of what I care about with a ladder, I care about the height, but you don't need anybody to tell you about that.

[00:18:09] Speaker 00:
And I care about whether the footing is going to slip.

[00:18:12] Speaker 00:
And then I care about whether my footing is going to slip.

[00:18:15] Speaker 00:
Everything else pales in comparison.

[00:18:18] Speaker 00:
So there can't be any possible doubt that safety of footing is material to a consumer's purchase of ladder.

[00:18:26] Speaker 00:
And so you need to make a distinction between safety of footing and the particular assertions of ANSI compliance.

[00:18:34] Speaker 00:
Why doesn't the important survey create a jury question on that?

[00:18:41] Speaker 01:
Because the issue is, does the actual statement

[00:18:45] Speaker 01:
matter to consumers.

[00:18:49] Speaker 01:
And what we're talking about in the important survey is something else.

[00:18:53] Speaker 01:
It's a level of abstraction higher.

[00:18:57] Speaker 01:
It's talking about safety.

[00:18:59] Speaker 01:
And what that does... No, no, no.

[00:19:00] Speaker 00:
I'm sorry.

[00:19:00] Speaker 00:
It's not.

[00:19:01] Speaker 00:
Do I have the language wrong?

[00:19:03] Speaker 00:
I thought it asked the question, compliance with industry safety standards.

[00:19:09] Speaker 00:
And so far, we've talked about two possible ones within the domestic

[00:19:12] Speaker 00:
United States, ANSI and whatever version of ANSI OSHA currently has in its regulations.

[00:19:18] Speaker 00:
There's two possibilities.

[00:19:20] Speaker 00:
Why isn't it a jury question whether compliance with industry safety standards which the survey shows consumers care about is enough to support an inference that they care about the ANSI safety standards?

[00:19:36] Speaker 01:
Because what we did by doing that is we have rendered the actual statements themselves meaningless.

[00:19:42] Speaker 01:
We're not looking at the actual statement on the side of the ladder.

[00:19:46] Speaker 01:
We're not looking at the ladder statement in context, that it's in seven-point font, that it's a half-inch at best on a 40-inch label, that it's oftentimes covered up, that people may never see this.

[00:20:00] Speaker 00:
And those... All of that stuff that you just mentioned was not the basis for the district court's conclusion, was it?

[00:20:07] Speaker 01:
Well, the district court was a little light in explaining why

[00:20:11] Speaker 01:
It excluded that.

[00:20:12] Speaker 01:
But I think what it said was that the important survey was excluded because Mr. Porat didn't ask the key question, as I think what the court said.

[00:20:25] Speaker 01:
And the key question is the point that I'm making.

[00:20:28] Speaker 01:
Right.

[00:20:28] Speaker 00:
Can I just ask you about that?

[00:20:32] Speaker 00:
Sufficiency of the evidence to create a jury question is a separate question from meeting the standard of relevance

[00:20:42] Speaker 00:
for exclusion.

[00:20:43] Speaker 00:
How could it not be relevant under the literal Rule 401 definition of relevant?

[00:20:51] Speaker 00:
Relevant to the ultimate we care about ANSI question that we care about compliance with industry standards.

[00:20:58] Speaker 00:
401 says a fact is relevant if it makes the point that you are trying to make more likely than

[00:21:08] Speaker 00:
than it would be without that fact.

[00:21:13] Speaker 00:
Why doesn't that particular one squarely cover the importance survey question?

[00:21:20] Speaker 00:
It is more likely that people care about ANSI standards with evidence that they care about industry safety standards than it would be without evidence that they care about industry safety standards.

[00:21:35] Speaker 01:
Your Honor, I think the problem that Tricam has with that line of argument is that it's contrary to Eighth Circuit law.

[00:21:42] Speaker 01:
The Eighth Circuit clearly says you have to look at the actual statement.

[00:21:47] Speaker 00:
And I'm sorry, but the summary judgment standard of course looks at the ultimate statement, but the exclusion standard under 401 does not necessarily.

[00:22:01] Speaker 01:
I don't think it's helpful to a jury

[00:22:03] Speaker 01:
when the legal standard is, does that statement matter to consumers, to not ask about the statement and to effectively render the statement itself meaningless, and then say, well, people care about safety.

[00:22:20] Speaker 01:
Who can argue against that?

[00:22:23] Speaker 01:
What you've done is just done an end run around the law that is a requirement that you have to look at the statement.

[00:22:29] Speaker 01:
And so if you want to say that Mr. Porth's important survey was

[00:22:33] Speaker 01:
relevant, then you've just allowed him to avoid what the law requires.

[00:22:39] Speaker 00:
Can I just change subject and just ask you this question, which is a kind of global question.

[00:22:45] Speaker 00:
Suppose Wing starts putting out advertisements that say, the guerrilla ladder doesn't meet the current ANSI standard for ladder steps.

[00:22:54] Speaker 00:
Do you have a landmark cause of action?

[00:22:58] Speaker 01:
I probably have to know more, but I would assume that we would because... Why?

[00:23:02] Speaker 01:
That wouldn't be material in your view, would it?

[00:23:05] Speaker 01:
Well, you asked if we have a cause of action and we would have to determine if there was materiality by doing either getting consumer survey or consumer testimony or an admission by wing that that's material.

[00:23:20] Speaker 01:
But your position in this case is that that's not material, isn't it?

[00:23:24] Speaker 01:
Because there's no evidence to demonstrate that it's material, Your Honor.

[00:23:27] Speaker 01:
The cases all talk about 3M itself said, the case 3M was this new, they called it a new technology and it wasn't new at all.

[00:23:38] Speaker 01:
It was only applied new to a different polymer.

[00:23:43] Speaker 01:
And there was a customer that was deposed and they didn't ask if it was material.

[00:23:48] Speaker 01:
The plaintiff and the defendant both testified that they didn't know if it was material to consumers.

[00:23:55] Speaker 02:
And the court didn't say... That's different in this case.

[00:23:59] Speaker 02:
Let's look at 3M Innovative.

[00:24:01] Speaker 02:
There the court held the materiality considers whether the false or misleading statement is likely to make a difference to purchasers.

[00:24:10] Speaker 02:
Here, the false or misleading statement

[00:24:13] Speaker 02:
is that Primax is putting this certification of a standard on its ladder, ANSI oral, so let's stick with ANSI.

[00:24:21] Speaker 02:
And the question is, well, that makes a difference to purchasers.

[00:24:26] Speaker 02:
And I think both the important survey and Dr. Trudeau's survey set up a genuine issue of material fact as to whether the statement

[00:24:38] Speaker 02:
that this is actually compliant, it makes a difference to purchasers.

[00:24:42] Speaker 02:
There's evidence in the record that supports both sides.

[00:24:50] Speaker 01:
And I didn't catch the name of the case, Your Honor.

[00:24:51] Speaker 01:
Which case was that?

[00:24:53] Speaker 02:
I'm talking about 3M.

[00:24:54] Speaker 01:
Oh, OK.

[00:24:56] Speaker 01:
Sure.

[00:24:57] Speaker 01:
Sure.

[00:24:57] Speaker 01:
Thank you.

[00:24:59] Speaker 01:
The statement that you made when you let off that question was whether or not the false or misleading statement is likely to influence consumers.

[00:25:08] Speaker 02:
It's likely to make a difference to purchasers.

[00:25:14] Speaker 01:
Right.

[00:25:15] Speaker 01:
And my point is you have to ask consumers about that statement.

[00:25:21] Speaker 01:
You can't divorce the materiality argument from the statement itself.

[00:25:26] Speaker 01:
And you can't label it an inherent quality or characteristic.

[00:25:30] Speaker 01:
You can't have a proxy calling it safety.

[00:25:35] Speaker 01:
Because you then define what the statement is, and you then can make it so that, of course, somebody would care about that.

[00:25:43] Speaker 02:
If you said... Yeah, let's look back at Dr. Trecey's survey.

[00:25:51] Speaker 02:
It says, specifically, 87% of ladder shoppers consider the information on the side label as important to purchasing a ladder.

[00:25:59] Speaker 02:
And then we go down, 61% knew what OSHA does,

[00:26:04] Speaker 02:
42.4 have heard of ANSI, and 21.9 clearly knew what ANSI is.

[00:26:10] Speaker 02:
So that's evidence that consumers are likely to make that safety information is likely to make a difference to purchases under 3M.

[00:26:23] Speaker 01:
I disagree, Your Honor.

[00:26:24] Speaker 01:
I think that there are different issues.

[00:26:26] Speaker 01:
If you look at the TRECY survey, she says 87% of people look at the side of the lab

[00:26:32] Speaker 01:
But we don't know what they look at.

[00:26:34] Speaker 01:
And what we're talking about here is seven-point font.

[00:26:38] Speaker 02:
And we're going to say, because you glance at the... Where are these labels located?

[00:26:44] Speaker 01:
On the side of the ladder on a 40-inch long label.

[00:26:48] Speaker 02:
Well, you have 87% of the ladder shoppers that consider the information on the side label important to purchasing the ladder.

[00:26:57] Speaker 02:
I mean, they may consider color and

[00:27:01] Speaker 02:
you know, a bunch of other information, but we do know that that's, as you just said, that's where the answer label is.

[00:27:10] Speaker 01:
If I could respond, Your Honor?

[00:27:11] Speaker 03:
Yes, please respond, please.

[00:27:13] Speaker 01:
Thank you.

[00:27:15] Speaker 01:
We can't dispute that the report says that people look at the side ladder, but the issue isn't whether they look at the side ladder and whether the side of the ladder is material to them.

[00:27:27] Speaker 01:
The issue is whether this tiny statement

[00:27:30] Speaker 01:
in the middle of the side ladder label influences them.

[00:27:34] Speaker 02:
And merely because they can... Why isn't that a question for the jury then?

[00:27:40] Speaker 02:
Because the burden... To consider this information, consider attorney arguments, and make a decision whether the size or the placement of the label makes a difference to the consumer.

[00:27:53] Speaker 01:
Yeah, and I think the answer is because the case law clearly says,

[00:27:57] Speaker 01:
You have to look at the statement.

[00:27:59] Speaker 01:
So we don't get into this exact issue that we're in right now, which is not consistent with a circuit law.

[00:28:09] Speaker 03:
Anything else?

[00:28:11] Speaker 01:
No, thank you, Your Honor.

[00:28:14] Speaker 03:
OK.

[00:28:15] Speaker 03:
Let's hear from the other side's remaining group.

[00:28:19] Speaker 05:
Thank you, Your Honor.

[00:28:20] Speaker 05:
First, I want to point out my colleague's argument that Eighth Circuit law clearly requires any expert survey to only test the exact advertisement at issue or be deemed irrelevant is not the law.

[00:28:35] Speaker 05:
Neither 3M nor any other Eighth Circuit case does that.

[00:28:42] Speaker 05:
In fact, the law is that

[00:28:45] Speaker 05:
An expert survey can provide circumstantial evidence of materiality.

[00:28:50] Speaker 05:
It doesn't have to test the verbatim accused statements to be relevant.

[00:28:55] Speaker 05:
There's no law that supports that.

[00:28:59] Speaker 05:
So the relevance comes from Rule 401.

[00:29:06] Speaker 05:
Rule 401 is any tendency to make something more or less probable.

[00:29:11] Speaker 05:
And it's interesting that

[00:29:14] Speaker 05:
Tricam only talks about Tri-Safe Survey and Peret's Importance Survey independently in different areas of their brief, and then they argue that there's no evidentiary link between that survey and the facts of the case when the evidentiary link is the other survey.

[00:29:31] Speaker 00:
And so Tri-Safe... I'm sorry, the other survey, what do you mean by that?

[00:29:38] Speaker 05:
For example.

[00:29:39] Speaker 00:
There are three surveys here.

[00:29:43] Speaker 00:
Two of them are Perrette's, Importance and Labeling, and then there's this Tracy thing.

[00:29:47] Speaker 00:
The judge here said as to the labeling survey, among other things, although it's a single sentence, confusing and prejudicial.

[00:29:55] Speaker 00:
I'm not sure how exactly that's an abuse of discretion.

[00:29:58] Speaker 00:
Even though Rule 403 was not cited, you can get to confusion and prejudicial for the labeling survey by virtue of the helpfulness requirement of 702, which was cited.

[00:30:09] Speaker 00:
So, don't you have to rely on either the important survey or these bits of non-survey evidence?

[00:30:24] Speaker 05:
Um, I don't think so.

[00:30:26] Speaker 05:
I think one, we can rely on the alleged statements themselves under the law that says one way to prove materiality is to demonstrate that the statement relates to inherent qualities or characteristics of a product.

[00:30:40] Speaker 00:
And when that... But why, why would one, I certainly, well, even assuming that safety

[00:30:50] Speaker 00:
Safety of footing is an inherent quality.

[00:30:53] Speaker 00:
That's not the issue.

[00:30:54] Speaker 00:
The issue is whether compliance with ANSI independent of OSHA compliance is likely to influence consumers.

[00:31:05] Speaker 00:
And I don't know how to make that into something called an inherent quality unless inherent quality is a meaningless term.

[00:31:15] Speaker 05:
Well, what you have to have is you have to have evidence that consumers are going to see the ANSI statement and recognize that as a statement of complying with safety standards.

[00:31:24] Speaker 05:
And the evidence we have for that is Dr. Treese's survey demonstrates that a substantial number of consumers understand that ANSI is a safety standard.

[00:31:35] Speaker 05:
We also have the context, the district court even recognized that the context of the statement on the label

[00:31:44] Speaker 05:
would suggest, can suggest to a consumer that ANSI is a safety standard just by how it's written.

[00:31:50] Speaker 05:
It says, manufacturer certifies conformance to OSHA ANSI A14.2 standard for metal ladders.

[00:31:59] Speaker 05:
Just the nature of the statement itself could support the idea that a consumer is going to read that and say that must be a safety standard.

[00:32:07] Speaker 05:
And so that evidence suggests

[00:32:10] Speaker 05:
that a consumer will consider it important.

[00:32:13] Speaker 05:
And then if you combine that with the importance survey, the reason the importance survey is relevant is because a natural question that flows from this other evidence is, well, how do we know consumers consider a safety standard important?

[00:32:26] Speaker 05:
Just because they recognize ANSI as a safety standard doesn't mean they consider safety standards important.

[00:32:33] Speaker 05:
That's why the important survey is plainly relevant.

[00:32:37] Speaker 00:
It answers that question.

[00:32:39] Speaker 00:
Can I just ask this question?

[00:32:42] Speaker 00:
Tell me why the following framing of the issue is wrong.

[00:32:49] Speaker 00:
That the issue is, if consumers see and understand that the latter complies with OSHA, they nevertheless still would care

[00:33:02] Speaker 00:
whether it complied with ANSI.

[00:33:05] Speaker 00:
If that's the framing, it seems to me you have a difficult time, and tell me why that's an improper framing of the question.

[00:33:12] Speaker 00:
So the consumer says, oh, the government says this is okay.

[00:33:15] Speaker 00:
Do I really care about what some other body says?

[00:33:21] Speaker 05:
Your Honor, the reason that's the wrong framing is because the materiality question is not whether the accused fault statement is likely to be the only thing that influences consumers.

[00:33:34] Speaker 05:
Just pointing out that there are other things in their advertising that could have an influence on consumers does not negate the idea that one of the accused statements

[00:33:45] Speaker 05:
can likely influence consumers.

[00:33:48] Speaker 05:
There is no law that says it has to be the driving force.

[00:33:52] Speaker 05:
It doesn't even have to be the primary influence.

[00:33:56] Speaker 05:
The likelihood of influencing consumers can be attributed to a false statement, even if other factors that are advertised might also bear an influence on their purchasing decisions.

[00:34:11] Speaker 05:
That's why that's the wrong framing.

[00:34:13] Speaker 05:
is that's not the legal standard of materiality.

[00:34:16] Speaker 05:
It's very similar to a likelihood of confusion in the trademark context.

[00:34:20] Speaker 05:
You don't have to prove a negative of all other aspects of the advertising in order to demonstrate that the accused statement can have an influence.

[00:34:30] Speaker 03:
Can I just ask you a side question, which is neither here nor there on the issue before us, but does that then affect damages in the damages calculation?

[00:34:40] Speaker 03:
I mean, it would seem it would have to matter.

[00:34:41] Speaker 03:
Perhaps you're right, not for materiality, but it would seem it would come into play in some aspect of the case.

[00:34:48] Speaker 03:
Am I right about that or not?

[00:34:52] Speaker 05:
I'm not certain now.

[00:34:53] Speaker 05:
I do believe I have seen cases where the question of causation of damages and the question of materiality is often analyzed together.

[00:35:03] Speaker 05:
I have seen that.

[00:35:06] Speaker 05:
I'm not certain as to whether it is a necessary or a determinative point in damages at this point.

[00:35:19] Speaker 00:
In this case, the relief you're seeking is what?

[00:35:22] Speaker 00:
Injunction damages, disgorgement of Tricam's profits or what?

[00:35:30] Speaker 05:
We are seeking injunctive relief and disgorgement of profits under the Lanham Act.

[00:35:35] Speaker 05:
We are not seeking lost profits damages.

[00:35:43] Speaker 03:
Anything else, judges?

[00:35:45] Speaker 00:
No.

[00:35:46] Speaker 00:
No, thank you.

[00:35:47] Speaker 03:
All right.

[00:35:48] Speaker 03:
Thank you, Mr. Miller.

[00:35:49] Speaker 03:
We thank both sides and the case is submitted.

[00:35:52] Speaker 03:
That concludes our discussion this morning.

[00:35:55] Speaker 05:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.