Manufacturing Research Corporation, a Florida Corporation, Plaintiff-Appellee-Cross v. Greenlee Tool Company, a Corporation, Defendant-Appellant-Cross
693 F.2d 1037
11th Cir.
1982
Check Treatment

*1 MANUFACTURING RESEARCH COR- PORATION, сorporation, a Florida Plaintiff-Appellee-Cross Appellant, COMPANY, corpo- GREENLEE TOOL ration, Defendant-Appellant-Cross Appellee.

No. 80-5175. United States Court of Appeals, Eleventh Circuit. Dec. 1982. *2 Wells, James E. Maguire, Voorhis & Sla- ter, Orlando, Fla., defendant-appellant- for appellee. cross Duckworth, Allen, industry, plaintiff he Herbert L. formed Hobby corpora- & tion Allen, MRC to manufacture and sell Orlando, Fla., plaintiff-appellee- pow- sup- er cable bender to electrical wholesale appellant. cross ply houses. A cable bender is used to bend large diameter lim- electric within the panel ited confines of a or terminal box. *3 Before its invention the usually task was GODBOLD, Judge, RONEY Beforé Chief accomplished with the use of hand tools. *, Judges. and WOOD Circuit power ap- The MRC cable bender first peared on the market in October 1970. RONEY, Judge: Circuit Greenlee, Early in 1971 defendant well a (Greenlee) Tool Company ap- Greenlee company established that markets a wide $549,562:64 peals judgment from a obtained trade, for the range electrical Manufacturing Company Research by became aware the power MRC cable on (MRC) competition a common law unfair began bender and efforts to develop its grew competi- The suit of the claim. out own. A ratcheting bender was intro- companies between the tion two duced by Greenlee March a 1973 and and a tool used in manufacture sale of the power in May cable bender 1975. Both n trade, known as a electrical construction MRC and Greenlee marketed their products as appeal cable bender. Both and power by employing salesmen who sold the tools to cross-appeal, we affirm. supply electrical wholesale houses or distrib- utors that in turn sold the tools to the main appeal On Greenlee contests the electrical contractors who were end based on a verdict on judgment jury four users. (1) the grоunds: sufficiency the evidence the tort of The activity prior as to trade or the of Greenlee disparagement market- ing power its own cable bender is the basis advantageous tort interference with Beginning this suit. in May 1971 vari- relationships, (2) the trial court’s ous Greenlee employees statements jury to instruct the on the refusal issue of the effect that pow- Greenlee would have a (3) the puffing, trial court’s denial of its er cheaper cable bender that was better and for judgment notwithstanding motion soon, than market shortly, MRC’s on the retrial, and order partial (4) verdict of a and in a few months. These were statements sufficiency of the at thе retrial evidence shows, made at trade at ware- distributor damages. houses, trade, and elsewhere to the even MRC asserted originally Sherman though had no such tool power Greenlee Act claims and ver- appeals from directed and was not to market it until some four against it on under 2 dict a count of the § years Although later. MRC’s sales rose Act, alleging monopolize. attempt from the of its introduction cross-appeal also claims on MRC October 1970 June until when court (1) denying erred in its motion to started, rumors 1975 it longer was no seeking to compel discovery establish viable force in the market. Thinly capital- power market in the conduit ized, eventually went MRC out of business (2) market refusing permit bender May 1977 sale its assets to Electro- deposition testimony to be certain read to vision, Inc. jury.

Sufficiency of Evidence as to Background Torts Economic , case, When Silas Crees invented tool that At the first trial of this a need in the contracting special interrogatories filled electrical on two found * Wood, Jr., Harlington ‍‌​​‌‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​‌‌​​​‍Honorable U.S. nation. Circuit Circuit, Judge sitting desig- for the Seventh The could have con- competi from imminent. engage in unfair did were either calculat- the statements damage caused cluded proximately

tion which market for MRC’s cable compеtition unfair to diminish the Included within ed MRC- knowing the market interference with business bender or made is the tort of substantially Florida law its elements certain to be diminished. relations. Under relation involves a balanc- justification of a business (1) question the existence rights, plaintiff legal parties which has of the and of ship ing under of the interests interfer unjustified of all the (2) an intentional well as consideration society as methods, (3) damage relationship, including ence with circumstances the defend as a result of plaintiff parties. to the relation of the and the means used v. Maim Corp. Wackenhut Services, ant’s actions. Inc. v. White & Insurance Field D.C.A.1980). one, (Fla. 4th Service, Inc., So.2d & Audit Inspection White D.C.A.1980). (Fla. 5th 306-07 So.2d if there upheld verdict should be leeway in Although businesses are accorded *4 weight that of such and quality evidence interfering competitors’ with their men in the ex- and fair-minded reasonable certain relationships, they by must abide reach judgment might impartial ercise of improper not use “rules of combat” and The evidence is con- different conclusions. Prosser, W. Torts competition. means of reasonable light and with all sidered 1971). “when (4th Accordingly, 956 ed. opposing to the inferences most favorable views, the. there is room for different deter- Shipman, 411 F.2d party. Boeing Co. was mination of whether the interfеrence 365, (5th Cir.1969). 374 ordinarily or not is left to the improper presented was substantial evidence There its feel for the state jury, to obtain common statements employees made Greenlee community mores and for the manner in a would soon make available that Greenlee operate upon which would the facts in they better, at a time when cheaper cable bender Restatement of Torts 2d question.” § such there was no reasonable basis for comment 1. were made in claims. These statements involved in the persons 1971 and 1972 to Puffing business, principally contracting electrical argument second is that Greenlee’s throughout at trade shows the various in refusing the trial court erred instruct statements, Contrary to these country. trial jury regard puffing. the with The hand-operated Greenlee’s cable bender was court was not entitled ruled Greenlee not introduced until March and Green- puffing to a instruction on because at was not introduced power lee’s cable bender the time the statements were made Green- May until 1975. There was evidence lee product. had no one representative potential one sales relied, part, investor in MRC at least in on Puffing generally refers to an ex concerning appear- the rumor the imminent pressiоn opinion represen not made as a deciding ance of Greenlee’s cable bender Corp. tation of fact. Gulf Oil v. Federal relationships their with MRC. terminate Commission, (5th Trade F.2d Cir.1945). goods given The had sufficient evidence some Sellers enhancing quality before it to find liable for inter latitude in the or value of advantageous puff ference with business rela their wares. Id. made to Statements' goods misrepresenta had established a business are not actionable in tionships. MRC relationship representatives theory with its sales tion even if untrue on the that no on product. person rely general various distributors of its reasonable would а salesman. employ superiority statements to Greenlee claims of attributed Prosser, at 722. also 1A R. supra ees were made without a basis in fact. W. See Callmann, Trademarks though begun develop Competition, Even Greenlee had Unfair own, (4th 1981) (exag Monopolies ment cable bender of its 5.19 ed. power § the only the market was be allowed where appearance gerations the tool’s far should purchaser profits $182,562.64 he is not in the amount of ordinary understands rely). is in- expected puffing Where loss of value MRC’s business in the $367,000.00. volved, the seller is entitled an instruc- amount of Rather than new along damages, these lines. it tion trial on Greenlеe contends was judgment entitled to n.o.v. after the first in- requested jury of Greenlee’s Each trial. protection deals with the limited structions sellers in making comparisons afforded argument, Greenlee’s there Contrary products. with competitors’ their be no appears to error in the trial court’s Greenlee, however, did not in fact have judgment notwithstanding refusal to grant at the cable bender time the statements Although the verdict. trial court stated were not have question made and could testimony of expert MRC’s as to the its marketed after the soon loss in of its specula- value business was too were statements made. The statements jury vеrdict, tive to support it did of were and 1972 complained made in 1971 hold prove any that MRC failed to though hand-operated even Greenlee’s fact of damage. damage proximately was not September bender marketed until caused conduct specifical- power 1973 and cable bender was not ly special interrog- found Until May marketed 1975. In March 1971 Holding atories. that the jury award was engineering department devel- weight of against evidence, oped design hydraulic sketches of a bender or, court entered order for remittitur that were abandoned in favor an outsid- alternative, a new trial on *5 prototype. prototype er’s Field tests of the under only. Reviewable the abuse of dis- begin until did not the summer of 1972. In standard, Sessions, see Love cretion v. 568 short, nothing puffed at Greenlee to be (5th Cir.1978), F.2d 357 the trial court’s The the time statements were made. give decision to a new trial was not reversi- requested instructions are not applicable ble error. situation. such a Retrial Damages Partial on damaging The feature of state that product ments was Greenlee’s would be objects to solely the retrial Greenlee shortly. available This was a factual mis on the of damages, contending issue representation. Greenlee did even have liability issues оf and damages are so inter a in the product stage, final development woven in this case that they fairly cannot nor would one be available soon. State be separately. tried See Gasoline Products misrepresenting ments a or product falsely Co., 494, Co. Champlin Refining v. 283 U.S. ascribing product benefits or a virtues to 500, 513, 515, 51 75 (1931); S.Ct. L.Ed. 1188 v. Corp. actionable. Gulf Oil Federal Lines, Atkinson Dixie Greyhound 143 Commission, 109; Trade 150 F.2d at W. 477, (5th Cir.), denied, F.2d 479 cert. 323 Prosser, supra at 926. The instructions jury 758, 92, U.S. 65 S.Ct. 89 (1944). L.Ed. 607 adequate misrepre included instruction on argues finding Greenlee that no sentation material facts. as to which statements were found first be jury to tortious. On retrial the Judgment Notwithstanding Verdict was able аssume each incident was tor- against The returned a only verdict tious and left determine causation for lost profits defendant, however, Greenlee in the amount of damages. The did $67,218.25 and for loss special in value MRC’s not object interrogatories did nor $286,752.50. the amount of any it request interrogatories to make the subsequently trial court a remitti- now ordered distinction it asserts. The jury specifi or, $238,707.75 tur in the amount of cally liability. repetition found alternative, a new evidence, trial on After damages. liability necessary some of the damages causation, the retrial on returned establish did not render the against verdict Greenlee and found lost unfair. Trial of alone after liabili- 1042 that had not been See, Although the fact MRC e.g., practice. is an established She

ty long makes it difficult to fore ‍‌​​‌‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​‌‌​​​‍ in business Co., (5th Motor 581 F.2d 1155 lak v. White sales, impossible. is not cast future it Short Moore, Practice Cir.1978); 6A J. Federal comparison for the of sales periods base Annot., 9 (2d 1982); ¶ ed. 85 A.L.R.2d 59.06 cases where neces have been used other of discretion (1962). We find no abuse See, Corp. Heatransfer v. Volks- sary. e.g., v. Hor judge. the trial United States See 964, (5th A.G., 983 553 F.2d wagenwerk, ton, Cir.1980). (5th 622 F.2d 144 denied, 1087, 98 Cir.1977), cert. 434 U.S. 1282, (1978) (five 792 55 L.Ed.2d S.Ct. at Retrial Sufficiency of Evidence Wholesale, months); Mechanical Inc. v. appeal on is Greenlee’s final contention (5th Corp., 432 F.2d 228 Universal-Rundle as‘to there was insufficient evidence Cir.1970). one witness used six In this case damages adduced at retrial causation and period during which MRC months as injury The fact of present jury question. rumors, by any made sales unfettered dropped sales was well established. MRC’s lost one-year period one used a estimate at the time the rumor be- dramatically off Comparison of sales before the un sales. circulated, he to be Gonzalez testified gan competition fair with sales afterwards hearing on investing lost interest in MRC methods of generally recognized- one of the to introduce a ca- going that Greenlee was profits. lost Lehrman v. Gulf proving See future,” Roth very 659, Cir.1974), ble bender “in the near (5th Corp., Oil 500 F.2d representing denied, testified he ceased MRC cert. U.S. S.Ct. (1975). the basis of innuendos about Greenlee’s L.Ed.2d 400 tool, against he decided Burnside testified objections testimony to the Greenlee’s MRC after investing representing type properly the witnesses are of the ad- learning jury. to the The fact dressed soon, would be on the market and Childers jury’s figures pro- verdict was less than the stopped actively promoting testified he as a jurors indicates the accorded posed MRC manufacturer’s the MRC representative vigorous some credence to attack when he heard bender bender figures employed by on the and methods *6 There was also was about to be marketed. do not af- arguments the witnesses. testimony they from several witnesses setting aside the ver- ford basis for had been in efforts to locate unsuccessful dict. have in- an MRC bender. The could concerning the rumor ferred that Greenlee’s Cross-Appeal salesmen, bender caused the disinterest of from three cross-appealed MRC has in the distributors and others MRC court, dealing all with rulings by bender. attempted its claim that to mo damages presents While the amount of the cable in viola nopolize bender market question, supports more difficult the record Act, tiоn of 2 of the 15 U.S.C.A. Sherman § the trial court’s refusal to disturb We hold the trial court did not err §2. the valuation of By very verdict. its nature compel discovery which refusing by MRC profits imprecision. lost is a matter of some sought pow to establish Greenlee’s market Casualty Utility New Amsterdam v. See Co. market, in the in exclud er conduit bender Co., 718, Battery Manufacturing 122 Fla. concerning con ing testimony Greenlee’s 856, (1936) (anticipated profits 166 860 So. market, duct the conduit bender and in speculative dependent changing granting motion for directed ver circumstances). uncertainty This inherent alleging conspiracy on the counts dict however, not, recovery of precludе attempted monopolization. does monopolize and cases, damages proved certainty. to a reasonable Citing several Fifth Circuit MRC rea Industries, Myers Aldon v. Don & Asso- market power coupled Inc. sons that Greenlee’s ciates, Inc., Cir.1975). competition amount to a 188, (5th 517 with its unfair F.2d 191

1043 Bank, National agree Philadelphia violation of Act. We States 374 the Sherman 1715, 321, with the district the relevant court 83 10 U.S. S.Ct. L.Ed.2d 915 market, market was bender the cable (1963), only compet- because demand forced correctly therefore the court denied district ‍‌​​‌‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​‌‌​​​‍itors to offer the entire cluster of services discovery of conduit bender effectivеly as one product. same can- sales. not be said of tools for electrical contractors by as seen initial success on MRC’s the basis Products, In Northwest Inc. v. Power of one tool. Inc., Industries, (5th Omark 576 F.2d 83 denied, 1116, Cir.1978), 439 cert. U.S. 99 Furthermore, has MRC failed to 1021, (1979), S.Ct. 59 L.Ed.2d 75 the Court any cognizable anticompetitive demonstrate indicated a of the Act violation Sherman effect competition. of Greenlee’s unfair could be anticompetitive found in the con Our cases have recognized injury to a duct of a new entrant with dramatic mar- competitor always result injury need not power. ket Id. at 89. Cherokee Laborato to competition. The use of unfair means ries, Services, Inc., Drilling Inc. v. Rotary resulting in the substitution of one competi Cir.1967), denied, (5th 383 F.2d 97 cert. 390 tor for another without more does not vio 904, 88 816, 19 (1968), U.S. S.Ct. L.Ed.2d 870 late the Redwing Carriers, antitrust laws. example. was cited as In that case the Lines, Inc., Inc. v. McKenzie Tank 594 F.2d new entrant into market sup controlled (5th 114 Cir.1979), affirming F.Supp. 443 ply through dealing arrange an exclusive (N.D.Fla.1977); 639 Northwest Power Prod ment with the of a patent holder and was ucts, Industries, Inc. v. Omark 576 F.2d at able to price significantly increase while 90; Reship, Flegel, Southland Inc. v. 401 serving portion a small of the market. In a F.Supp. (N.D.Ga.1975), aff’d, 339 534 F.2d later case the was shown to defendant have (5th Cir.1976). 639 The number of competi drаmatic power market aircraft out- tors in the cable bender market has in fitting recently business it had entered. creased, the number products of available Page Associated Radio Co. v. Air Service increased, price has and the Inc., (5th available ways, Cir.1980), F.2d. has No denied, anticompeti cert. decreased. 101 S.Ct. U.S. tive effect on the market can be (1981). L.Ed.2d 226 Defendant sur shown. Accordingly, we high entry mounted the barrier to the mar affirm district court’s ket plaintiff’s grant theft of trade secrets and directed verdict favor of Green- employees and then demonstrated market lee on the attempted monopolization count. power in outfitting increas- We find no abuse of discretion in ing prices its profits exclusive deposition exclusion of the testimony worldwide dealership the aircraft because its potential prejudice out question. Id. at 1353. weighed probative value. proof No *7 Greenlee control supply does not any connection between Greenlee’s conduct market, cable bender nor has it increased in the conduit bender market price profits. or made excessive There was the cable bender was market offered. The no evidence that ever coerced a Greenlee testimony may of Van have Brеe shown the a competitor’s prod- distributor not to stock existence of power to coerce dis uct. Greenlee’s success with other tributors, power but no use of such was may aggravated damage have to MRC any shown with respect product. campaign, caused the rumor but it did Finally, the only foundation for Larson’s represent power not dramatic market in a estimate percentage of the of Greenlee market it had entered. yet not Nor do power benders sold in his sales territory as conduit benders cable benders consti- opposed Enerpac tute a benders that Ener- products. cluster of Different serv- pac only ices were was the other brand he lumped together United saw in his States 563, v. Corp., territory. Grinnell This is insufficient clearly 384 U.S. S.Ct. infor- (1966), 16 L.Ed.2d 778 and in mation which such a comparison. United to base evidence, that the Defend- weight of adequate foundation Even if there were ant, agents employees ac- through its share testimony, for Larson’s about tually made some of the statements has been deter- the conduit bender market to it product attributed the Plaintiff’s to be irrelevant to the mined the Plaintiff. court’s exclu- We affirm the trial .market. to the That the statements attributed testimony. sion of this misrepresenta- Defendant constituted AFFIRMED. tion of the materiаl fact. were made for the That the statements GODBOLD, dissenting: Judge, Chief buy influencing others not purpose competition I the unfair would reverse on made un- product, the Plaintiff’s or were claim. circumstances which would lead der general there is a party No contends that person to foresee that such reasonable competition” tort of “unfair Florida. likely would influence others statements competition generic Rather unfair is a term buy product. the Plaintiff’s not specific categories that covers several Plaintiff has And that sustained went to the on two torts. This case proximately which were caused theories, of a sрecific disparagement trade of the Defendant’s publication unjustified inter- competitor’s product and statements. relations. The evi- ference with business element regard With to the second the trial court must be rulings dence and this you theory, which must find under these two torts. examined terms of are instructed that a statement you to occur in the future can be something is Disparagement A. misrepresentation of fact considered disparagement law on of a Florida making if the the statement only person competitor’s goods opinion is stated in our state- had no reasonable basis for that Corp., Corp. Trodyne Aerosonic ment at the time he made it. Cir.1968) (5th (emphasis F.2d add T.1814-15. ed): As was stated in long tor’s ‘statement ly claiming ted].’ Basically, influence not er’s which is which is to enhance the product as the comparison attempts product, is Mere [3] [2] actionable [1] without superiority puffing untrue or about a quality to influence or tends to buy. [citation being unduly disparagement disparagement competitor’s of one’s over a [Citations misleading omitted], the advertis- competi- primari- product, critical goods omit- .... is a ‘as ing ence. This majority in this fery,” where defendant’s ground court refused to instruct on engage ment of MRC’s sis The claimed acts of Greenlee’s Greenlee and without citation of or “sаles talk” about within an allowable privilege theory requested puffery ‍‌​​‌‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​‌‌​​​‍product court, product has of a seller of instructions on been with minimal had no are these: was not authority. its range adopted by puffery goods. application disparage- in boast- goods in exist- on the analy- “puf- of the there can be no product, other’s (1) employees actively spread disparagement.’ shows that Greenlee [citation omitted]. the news at trade hydraulic market a better would soon charged The trial court on trade money. bender for much less disparagement as follows: (2) employees On two occasions Greenlee *8 claims consequence, As a the Plaintiff product its would work more con- said that it a to recover right has spaces. fined legal from the on either of two defendant competition. theories of unfair employee (3) one occasion a Greenlee On which is known theory, representative Under the first as an MRC and masqueraded that you may potential as trade find for a customer MRC was out disparagement, told greater hydraulic from the of cable benders. you the Plaintiff if find course, done, representations (2) directly The under were not be as by saying X’s bender, when accurate. Greenlee’s cable it produсt “Y’s is made of inferior steel.” Or out, came would not work in more confined disparagement may be carried out in a com- spaces. disparagement If this were the sole sense, as, parative X’s by saying prod- “Y’s join holding involved I could in a that the uct will not relieve your headache but ours required court was not to instruct will.” The relating puffing law interfac- on puffery. gave specific The statement es where comparative disparage- there is product misinformation about MRC’s ment, because it is necessary appraise through comparison with quality a that whether the defendant’s statements de- product was said to but have scribing its product comparing it with in fact it did not have. have plaintiff’s exceeded the limits of per- The missible sales talk (3) hyperbole. acts described in were acts of or In most disparagement, asserting negative a false- circumstances inquiry into the allowable hood that product MRC’s was not available. a scope of defendant’s will boasting concern Puffery nothing has to do with this occur- existing products. two permitting But an rence. range allowable of sales talk is not limited as a matter law to of situations in which With respect (1), acts described under the product about which defendant’s state- the defendant was entitled to an instruction mеnts are made is at that moment in exist- on puffery. majority opinion decides ence. The focus of disparagement trade is as a matter of law that puffery was not exists, not on whether product defendant’s involved because product had not week, will exist next or will exist next sufficiently been developed and because it year, but on whether the statements de- would not be available “soon.” Whether fendant has in drawing comparison a these permissi- inaccuracies are within the plaintiff’s product with go beyond permissi- ble range puffery should be decided aby ble limits. properly instructed not Statements about the fact jury, by judges appellate prospective availability, their chambers. majority’s expected date approach availability, misconceives the principles expected qualities product available, underlie the tort of trade disparagement when are statements ignores fact-finder, realities of the market to be by considered a like any place. other statements about product defendant’s (actual or prospective), in determining In our free-market competitive economy whether defendant has permissi- exceeded permitted seller is pro- advertise and ble limits in attempting to divert sales from mote his product loudly proclaim plaintiff’s product product to defendant’s acceptable virtues. Within may limits that (actual or prospective). In this ease the be case, determined fact-finder case proper inquiry for the jury to determine our accepts world hyperbole by sellers. The was whether departed from the tort of disparagement, brought trade over allowable limits of sales by saying talk from equity, roving not commission to it would soon market a better cable bender precise enforce standards of morality on the price. at a lower The district court refused part of competing vеndors. Rather it is to give defendant’s requested instructions concerned with the extent to which the on this issue. This court’s affirmance seller should be allowed to sell thrusts it into the determination of issue merits of his goods but on the alleged defi- peculiarly suited for jury determination— Callman, ciencies of competitor’s. his Un- the acceptability of boasting sales talk. Competition fair Monopo- Trademarks and lies, 11.05, p. 13. § law, Possibly, as a matter of it would beyond

The law have been product disparagement pre- permissible puf- limits of vents diversion to if plaintiff’s fery represented defendant Greenlee had that it had potential sales defendant’s disрaraging product cheaper better and than MCR’s plaintiff’s goods. Disparagement may, of when in fact the product was merely being *9 that there is no be so remote ty to can only expected

developed and Greenlee here where this is not true But made no such issue. it later. But Greenlee have of in manufacture engaged was not Greenlee Or, if perhaps Greenlee statement. engi- product line and in the same goods goods manufacture of in the engaged been working was on devel- department neering practi- no line and had product same in the bender. expensive a less of opment line, an instruction enter the cable means to Moreover, stage develop- of remoteness in required. have been would not puffery on the basis of the in time was not ment and engaged in Or, were perhaps, if Greenlee on instructions refusing the trial court’s nothing done toward the same line but had there was a perceived It that puffery. product represented development of the inapplica- was puffery line rule that bright available, would have no instruction be soon in existence. not then product ble to a the these were required. been But engaged circumstances. Greenlee argu- makes an alternative plaintiff seeking develop the line and was same that ment, majority, the not referred cable bender. expensive less were covered puffery on instructions instruction above of the paragraph last treating approach of majority’s of concerning when a statement quoted to decision as a mat- boasting as amenable in the future can something that is to occur processes law will inhibit ter of of fact. misrepresentation be considered improving and marketing products new ade- the instruction does not part This and their adver- old. Must manufacturers of allowable convey concept quately virtues of promoting the tising agents, hyperbole. talk or sales existing “Prod- against “NEW Product X” Y,” is uttered рuffery that no interference with Unjustified uct be certain B. X” is its final “NEW Product business relations before possibly pro- and development form of for this claim is that statements The basis not, along proc- how far duction? If and prompted distributors by Greenlee be, product ess of must development to sever representatives manufacturers’ - span before its how short the time potential their connections with MRC the manufac- expected availability, before not make a connection. representatives judge’s reach of a evisceral past turer is or two sales There was evidence that one boasting reaction thаt the manufacturer their connection severed representatives prematurely? a con- making that one lost interest in by reason of Greenlee’s statements. nection says product “our new Assume defendant any causal rela- proof But there was no it will plaintiff’s, better than be will be any tionship between these occurrences in three cheaper, and it will be available be in- damage Damage cannot MRC. is sued. It turns out months.” Defendant of the occurrences. ferred from fact product became “existent” that defendant’s proof There was no that MRC suffered cheaper, better and but it and in fact was it or that shortage representatives of sales than in six months rather became available unavailability losses from the any suffered Or, product becomes available three. their connec- the one or two who severed better, time estimated but is not within the not make a and the one who did tions manufacturer, as a cheaper. Is or not connection. law, range puffery outside the matter of statements of over-optimistic because of damages only New trial on C. or of cost? The availability, quality, were sub- In the first the issues adapted ill to an majority’s approach is special interrogatories mitted to the development where research and economy the de- under which the found bring the consumer better competition” in “unfair engaged fendant to a manufacturer’s survival. essential damages proximately resulted of exist- It found the amount expectability It is obvious MRC. arising from loss consisting profits time of lost product

ence of a and its of availabili- *10 plaintiff’s.business. value in the The court

ordered a remittitur with the alternative of BROWN, Jacqueline Plaintiff-Appellee, only. a new on the of damages issue The remittitur was refused. INC., TERMPLAN, OF EAST ATLAN- had jury found in first trial TA, Defendant-Appellant. com- engaged the defendant had “unfair No. 81-7313. findings petition.” There had been no disparagement whether this consisted of or United States Court of Appeals, with re- unjustified interference business Eleventh Circuit. trial, lations, of both. or At the second Dec. 1982. only, damages the court instructed the that it should decide “whether the false and Rehearing and Rehearing En Ban misleading statements made the Defend- c 24, 1983. Denied Jan. availability, ant regarding pricing capabilities of its Model proximate any damage

were a cause of

MRC, so, and, if dam- extent those theories,

ages.” The two trade disparage- unjustified

ment and interference with relations, markedly

business focus on differ- competitive

ent harm. kinds of The effect is to the number disparagement decrease buyers product. The effect of drop rep-

business interference is a in ‍‌​​‌‌​‌​‌​‌‌‌‌​‌‌​​​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​‌‌​​‌‌​​​‍sales Counsel Greenlee pointed

resentatives. that, argue

out in order damages, argue needed

concerning he

whether trade or disparagement interfer- relations, both,

ence with either been found the first to exist.

The court permit refused to this and held

that the first trial had de- established that types

fendant had committed both of unfair

competition, and only that defendant could

argue proximate damages. Argu- cause of

ably, objected should have defendant at

first trial to form of the interrogatory.

But it equally arguable that if the plain- prove damages

tiff arising wished from competition

both of unfair theories it had to

object global to a not interrogatory that did

establish the existence of both. needWe because, this argument, answer under circumstances, it was unfair to de-

fendant to have second trial on

only.