Background

• SharkNinja sues Dyson alleging false advertising under the Lanham Act and Massachusetts law; Dyson moves to strike SharkNinja's jury demand; motion denied without prejudice.
• SharkNinja filed a covenant not to sue regarding Dyson's TTS claim on June 9, 2016 and the court held Dyson liable under the Lanham Act as of July 8, 2014.
• Parties filed pre-trial memoranda, proposed jury instructions, voir dire questions, and verdict forms.
• On the eve of trial Dyson moved to strike the jury demand arguing the remaining issues are equitable with no jury right; SharkNinja seeks an accounting of Dyson's profits as a proxy for harm.
• The court analyzes Seventh Amendment jury rights, the Lanham Act's lack of a guaranteed jury right for profits, and the viability of a profits-as-proxy theory, deciding to reserve ruling and proceed with a jury trial with potential advisory verdict under 39(c).
• Court will revisit the constitutional question after SharkNinja presents evidence supporting a profits-proxy theory; ruling that the jury trial will occur but its verdict may be advisory if needed.

Issues

Key Cases Cited

• Visible Sys., Corp. v. Unisys Corp., 551 F.3d 65 (1st Cir. 2008) (Lanham Act damages proxy not per se a right to jury trial; requires absence of adequate remedy at law)
• Dairy Queen, Inc. v. Wood, 369 U.S. 469 (Supreme Court 1962) (right to jury trial where accounting is legal in nature)
• Fishman Transducers, Inc. v. Paul, 684 F.3d 187 (1st Cir. 2012) (direct competition theory; profits-as-damages proxy depends on substitutes and causation)
• Bern Unlimited, Inc. v. Burton Corp., 95 F. Supp.3d 184 (D. Mass. 2015) (direct competition damages and proxy considerations in mass court)
• Black & Decker Corp. v. Positec USA Inc., 118 F. Supp.3d 1056 (N.D. Ill. 2015) (jury-trial right based on profits proxy with evidence of direct competition; court reserved advisory role)
• Attrezzi, LLC v. Maytag Corp., 436 F.3d 32 (1st Cir. 2006) (reserved advisory verdict when right to jury trial questioned)