Buetow v. A.L.S. Enterprises, Inc.
2011 U.S. App. LEXIS 17126
| 8th Cir. | 2011Background
- Buetow et al. sued A.L.S. Enterprises and retailers (Cabela's entities and Gander Mountain) in Minnesota, asserting false advertising under state consumer protection laws.
- Plaintiffs alleged A.L.S.'s Scent-Lok activated-carbon garments claim to 'eliminate' odor and to be 'reactivatable' were deceptive.
- District court certified issues for class treatment, but denied class certification on reliance and damages as common issues under Rule 23(b)(3).
- District court granted partial summary judgment for an injunction, finding literal falsity in ads claiming 'odor eliminating' and 'odor eliminating technology' and enjoining those uses, while treating 'reactivation' claims differently.
- Court also granted summary judgment dismissing MDTPA claims for lack of evidence of future harm and required injunctive relief under MCFA and MUTPA.
- The Eighth Circuit vacated the injunction and remanded, holding the district court erred in governing law and in its factual conclusions about literal falsity and injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Minnesota statutes coextensive with Lanham Act standards? | Buetow argues statutes align with Lanham Act false advertising standards. | A.L.S. contends state statutes provide broader remedies without Lanham Act constraints. | Statutes are not coextensive; private injunctive relief requires irreparable injury. |
| Was the district court correct to find all 'odor eliminating' claims literally false? | Plaintiffs contend some ads are literally false and irreparably injurious. | Defendants argue context shows puffery and nonliteral claims. | Court held not all 'odor eliminating' claims are literally false; need context to assess literal falsity. |
| Can private plaintiffs obtain injunctive relief under MCFA/MUTPA without proving irreparable injury? | Private plaintiffs seek injunctive relief for false advertising under MCFA and MUTPA. | Defendants argue statutory schemes require irreparable injury or different standards. | Injunctive relief under MCFA/MUTPA requires injury or irreparable harm; injunction vacated. |
| Should the district court’s injunction be sustained or dismissed on remand regarding Lanham Act claims? | Plaintiffs sought complete injunctive relief based on falsity. | Defendants argue for dismissal of injunctive relief on misapplied standards. | Remand to determine remaining claims consistent with the opinion. |
Key Cases Cited
- United Indus. Corp. v. Clorox Co., 140 F.3d 1175 (8th Cir. 1998) (defines Lanham Act falsity elements and consumer impact)
- McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544 (2d Cir. 1991) (irreparable injury required for enjoining false advertising)
- Porous Media Corp. v. Pall Corp., 110 F.3d 1329 (8th Cir. 1997) (recognizes irreparable harm as prerequisite to injunctive relief)
- Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm., Inc., 19 F.3d 125 (3d Cir. 1994) (literally false advertising may permit injunctive relief without consumer surveys)
- Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312 (2d Cir. 1982) (literary falsity presumption in certain contexts; context matters)
- Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2d Cir. 2007) (contextual analysis for literal falsity in advertising)
- Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500 (7th Cir. 2009) (literal falsity requires unambiguous message)
- Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381 (2d Cir. 1986) (text must yield to context; avoid excessive dictionary focus)
- Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir. 2002) (scientific or testable claims require verification)