Case: 1:13-cv-01297 Document #: 20 Filed: 05/09/13 Page 1 of 17 PageID #:48

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROBERT ALMBLAD, ) ) Plaintiff, ) ) v. ) ) SCOTSMAN INDUSTRIES, INC., and ) KEVIN FINK, ) ) Defendants. ) ____________________________________)

Case No. 1:13-cv-01297

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS Not every expression of disagreement is actionable. We depend on people to present differing views in order to reach sound, informed public policy decisions. This case is about the parties disagreement over just such an issue of public concern. Plaintiff developed a device that he claims keeps ambient air from entering the ice making areas of commercial ice making machines and tried to license that device to Scotsman and other ice machine manufacturers. Scotsman chose not to pursue Plaintiffs licensing

proposal, and it appears that the rest of the market was similarly uninterested. Undaunted, Plaintiff attempted to create a commercial demand for his device by convincing NSF International (NSF), a standard-setting organization that establishes sanitation standards for foodservice equipment, that ice machines made by Scotsman and other manufacturers were defectively designed because they allowed ambient air to come into contact with ice. Plaintiff lobbied NSF to change its ice machine standards to prevent this situation. Scotsman responded by explaining to NSF why Scotsmans machines were not defective, and why the existing

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standard did not need to be changed. Having failed in the marketplace, Plaintiff resorted to filing this lawsuit. It should not be allowed to continue. Count I, a claim for defamation, should be dismissed because the allegedly defamatory statements were simply not defamatory. Indeed, most of the statements referred only to

Scotsmans own equipment rather than Plaintiff; others merely explained Scotsmans interpretations of a provision in a model administrative food code or were otherwise constitutionally protected statements under the First Amendment. Count II, a claim under the Lanham Act, should be dismissed because Plaintiff does not compete directly with Scotsman and therefore lacks standing to bring the claim asserted, and because the statements were not made in a promotional or advertising context. STATEMENT OF FACTS Plaintiff claims he discovered that ice made in commercial ice machines manufactured by Scotsman and other ice machine companies, was being contaminated due to a defect that allowed for the intake of sewer gas. (First Amended Complaint (FAC), ECF No. 17 at Count I 6.)1 Plaintiff claims he invented a device that would eliminate the alleged defect, and attempted to license that device to Scotsman. (Id. at Count I 7-8.) Plaintiff does not allege that Scotsman or any other manufacturer entered into any licensing agreement with him. Plaintiff turned to NSF. NSF is a standards-setting organization based in Ann Arbor, Michigan. (Id. at Count 1 10.) The American National Standards Institute (ANSI) has accredited NSF to develop American National Standards for commercial ice making equipment. Plaintiffs allegations are assumed to be true solely for purposes of this motion to dismiss and Scotsman reserves the right to challenge all of Plaintiffs allegations. The paragraphs of Plaintiffs FAC (ECF No. 17) are not sequentially numbered. Rather, the paragraphs in Count I are numbered 1-11 and the paragraphs in Count II are numbered 1-7. For clarity, this brief identifies the paragraphs in Count I of plaintiffs FAC as Count I _ and the paragraphs in Count II of Plaintiffs FAC as Count II _. 2
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State and local units of government across the country have incorporated by reference the NSF/ANSI foodservice equipment standards into the codes and regulations that govern the types of foodservice equipment that may be installed and used at foodservice establishments in their jurisdictions.2 Plaintiff submitted to NSF an Issue Paper proposing that NSF change the NSF/ANSI standard for ice machines, NSF/ANSI Standard 12 (NSF Standard 12) to address the design defect he claimed to have discovered.3 (Exhibit A at 2-3 (referring to issue paper FE-2011-4 and noting that issue papers are submitted to propose a change to a standard, referencing NSF/ANSI 12.) NSF convened a task group to address Plaintiffs Issue Paper. (Id. at 1-2.) The task
2

See, e.g., California Retail Food Code (Cal. Health & Safety Code 114130(b) (West 2013) (all new and replacement food-related equipment . . . shall be certified or classified for sanitation by an [ANSI] accredited certification program); Code of Maryland Regulations (Md. Code Ann., Health & Men. 10.15.03.15(A)(1)) (The person-in-charge shall ensure that . . . food equipment meets one or more of the following design standards: . . . NSF or equivalent sanitation certification form .); Minnesota Department of Health Food Code (Minn. R. 4626.0505 4-201.11(B) (West 2013)) (Food service equipment installed or placed in service after . . . 1989, shall meet the applicable NSF International food service equipment standards specified in this item, and expressly specifying NSF/ANSI Standard 12 for automatic ice making machines); Code of New Mexico Rules (N.M. Admin. Code 7.6.2.10(8) (West 2013)) (All equipment, including new and replacement equipment, shall comply with the standards of an [ANSI]-accredited certification program); Wisconsin Food Code (Wis. Admin. Code ATCP 75, App. 4205.11 (West 2013)) (Food Equipment and Utensils for use in Food Establishments shall meet the published standards for sanitation of an [ANSI]-accredited Equipment Certification Program.). Plaintiffs amended complaint references, but does not attach, the prepared statement that Defendant Kevin Fink, a Scotsman employee, verbally delivered during a February 28, 2012 teleconference meeting of the NSF task group. (FAC Count I 9.) Scotsmans prepared statement, upon which Plaintiff bases his claims, is contained in the NSF meeting summary that is attached hereto as Exhibit A (the NSF Summary). Scotsmans statement is the italicized portion beginning on page 3 (under Scotsman Ice Machines) and continuing on to page 4 of the NSF Summary. Because the prepared statement is central to Plaintiffs complaint, it is properly considered in resolving this motion to dismiss. See Lott v. Levitt, 556 F.3d 564, 567 (7th Cir. 2009). 3
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group held a teleconference meeting on February 28, 2012. (Id. at 1; FAC Count I, 10.) The task group included public health officials, an NSF employee, representatives of ice machine manufacturers and one representative of a business that purchased ice machines. (Exhibit A at 1.) Plaintiff participated in the teleconference and spoke at length. (Id. at 5-9.) Defendant Kevin Fink, a Scotsman employee, responded to Plaintiffs claims on Scotsmans behalf. He explained that Scotsman had tested its machines, reviewed Plaintiffs Issue Paper, reviewed the FDA Food Code and NSF Standard 12, and asked two scientists (a former FDA Senior Science Advisor and a microbiologist) to advise it regarding Plaintiffs claims. (Id. at 3.) Based on its review, Scotsman saw no reason to change NSF Standard 12. (Id.) Fink explained that Plaintiffs claims about Scotsmans machines were erroneous

because Scotsmans testing revealed that its machines did not draw sewer gas from floor drains, as Plaintiff had claimed. (Id.) Fink also explained that in Scotsmans view, Plaintiff had misinterpreted the FDAs model Food Code to suit his commercial purposes. (Id. at 4.) He

pointed out that Annex 3 to the Food Code makes clear that the purpose of the dustproof barrier provision is to protect the food zone from dust that is accumulated and blown about by the condenser fan. (Id.) Because all of Scotsmans machines have walls that physically separate the condenser from the food zone, Fink explained, they comply with both NSF Standard 12 and the FDA Food Code. (Id.) Representatives from other manufacturers agreed with Finks comments. (Id. at 4-5.) Plaintiff responded (id. at 5-9) and the task group heard directly from the two scientists with whom Scotsman had consulted. (Id. at 6.) A year later, Plaintiff filed this lawsuit. He asserts two counts, one for defamation and one for a violation of Section 1125 of the Lanham Act. He seeks $400 million in damages, $200

Case: 1:13-cv-01297 Document #: 20 Filed: 05/09/13 Page 5 of 17 PageID #:52

million for each count. (FAC, Counts I and II ad damnum.) In his initial Complaint, Plaintiff alleged simply that Scotsman had defamed him by falsely asserting that its product did not have the design defect identified by [Plaintiff] and falsely asserting that [Plaintiff] was making false claims about his own inventions for his commercial advantage. (Complaint (ECF No. 1) at Count I 9.) Concerned about the lack of specificity, counsel for Scotsman conferred with counsel for Plaintiff and Plaintiff agreed to amend the complaint to identify the specific statements Plaintiff considered defamatory. (ECF No. 12 at 3.) Plaintiff identified, to wit: [Scotsman] falsely asserted that engineering testing was conducted and it was determined that [Scotsmans] ice machines did not draw in sewer gas from drains and also that its ice machines were equipped with a component that prevents dust from entering a food zone of the machines, as had been asserted by the plaintiff, Robert Almblad, rendering his inventions unnecessary. (FAC (ECF No. 17) Count I 9.) In Count II, plaintiff claims these same statements made during the NSF task group teleconference violated the Lanham Act because they contained false or misleading representations about Plaintiffs invention and Scotsmans products. (FAC Count II 2-4, 6.) But other than the fact the statements were made, Plaintiff does not allege any facts in Count II. In particular, he does not and cannot allege that he and Scotsman are competitors; indeed, he alleges he was a prospective licensor to Scotsman, rather than a competitor. (Id. Count II 4.) Nor does Plaintiff allege that the statements on which his Lanham Act claim is based were made in a commercial setting or for the purpose of making sales. MOTION TO DISMISS STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint that fails to state a claim upon which relief can be granted. If the complaint fails to allege a requisite element necessary to obtain relief, dismissal is in order. R.J.R. Services, Inc. v. Aetna Cas. and Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). 5

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I.

THE DEFAMATION COUNT SHOULD BE DISMISSED BECAUSE THE ALLEGED STATEMENTS DO NOT DEFAME THE PLAINTIFF. To state a claim for defamation under Florida law,4 a plaintiff must allege the following

elements: (1) publication; (2) falsity; (3) the actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement must be defamatory. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Moreover, it is axiomatic that to be actionable, an alleged defamatory statement must be of and concerning the plaintiff. See McIver v. Tallahassee Democrat, Inc., 489 So.2d 793, 793-94 (Fla. 1st DCA

1986) (corporation had no actionable claim where alleged defamatory statement did not refer to corporation). Here, Plaintiff alleges that three statements were defamatory: (1) that engineering testing was conducted and it was determined that Scotsman Industries, Inc.s ice machines did not draw in sewer gas from drains, (2) that Plaintiff had misinterpreted the Food Code because Scotsmans machines did, in fact, have a dustproof barrier within the meaning of that code; and (3) that Plaintiff made erroneous and/or mistaken claims to serve his commercial purposes. None of those statements is defamatory. The first does not even refer to Plaintiff. The second only makes a passing reference to Plaintiff and does not disparage him. To the extent it refers to Plaintiff at all, the second statement is the type of legal interpretation other courts have repeatedly held is subjective and therefore not actionable. The third is not defamatory because Plaintiff concedes he did, in fact, have a commercial purpose and statements about a plaintiffs
4

Illinois courts generally apply a most significant contact test to resolve choice of law questions. For a defamation claim, Illinois Courts typically apply the law of the plaintiffs domicile. Kamelgard v. Macura, 585 F.3d 334, 341-42 (7th Cir. 2009). In this case the Plaintiff is a resident of Florida (FAC Count I 4) and, therefore, Florida law appears at this point, before all contacts have been determined, to apply to Plaintiffs defamation claim. 6

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motivation on an issue of public interest are constitutionally protected under the First Amendment because they are not capable of being proved false. Plaintiff and Scotsman might vehemently disagree about the way that Scotsmans equipment works, how to interpret a provision in a model code, and the need to change existing standards. But claiming that another person is wrong, or even misguided, is not the same as defaming him. A. The First Alleged Statement, Regarding Scotsmans Testing, Is Not Defamatory Because it Does Not Relate to the Plaintiff.

The first alleged statement is: [Scotsman] falsely asserted that engineering testing was conducted and it was determined that Scotsman Industries, Inc.s ice machines did not draw in sewer gas from drains. That statement says nothing about Plaintiff it is an assertion about Scotsmans own ice machines and its own testing. Plaintiff cannot be disparaged by a statement that makes no reference to him whatsoever. McIver, 489 So.2d at 793-94. B. The Second Alleged Statement, Regarding the Food Code, Misstates What Scotsmans Prepared Statement Said and Is Not Defamatory Because it is Non-Actionable Pure Opinion.

As alleged in the Amended Complaint, the second statement was that Scotsmans ice machines were equipped with a component that prevents dust from entering a food zone of the machines, as had been asserted by the plaintiff, Robert Almblad, rendering his inventions unnecessary. (FAC at Count I 9.) As demonstrated below, Scotsman did not say this; Plaintiff misstates what Scotsman said. But even the statement as alleged does not defame Plaintiff. Again, it pertains to Scotsmans own ice machines. It says nothing disparaging about Plaintiff. Scotsmans prepared statement, upon which Plaintiff bases his claims, shows what Scotsman actually said, which is quite different: [O]ur machines do have dustproof barriers within the meaning of the FDA Food Code. (Ex. A at 4 (emphasis supplied).) The NSF Summary further shows that Scotsman said nothing about Plaintiffs inventions. Rather, 7

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Scotsman provided its interpretation of the FDAs Food Code, a model administrative code that FDA issues to help local, state and federal regulators develop or update their own food safety rules and to be consistent with national food regulatory policy.5 As a matter of well-settled Florida law, such interpretations of rules or other legal authority are pure opinion, and are thus not actionable. Pure opinion includes comments or opinions based on facts which are disclosed in the comment itself or which are otherwise known or available to the recipient as a member of the public. Del Fuoco v. ONeill, 2011 WL 601645 at *7 (M.D. Fla. 2011) (citing cases). Whether a statement constitutes pure opinion is a question of law. Id.; Sullivan v. Barrett, 510 So.2d 982, 983 (Fla. 4th DCA 1987). Scotsman disclosed the factual basis for its opinion in the statement itself: the plain language of the Food Code, in particular, Annex 3. (Exhibit A at 4.)6 And both the context of Scotsmans statements (a discussion about whether to change the NSF/ANSI standard) and Scotsmans actual words (within the meaning of the FDA Food Code) show that the statement See http://www.fda.gov/Food/GuidanceRegulation/RetailFoodProtection/ FoodCode/default.htm (last visited May 8, 2013). A full copy of the Food Code is online. While not necessary to decide this Motion, some context regarding the parties disagreement over the interpretation of the Food Code may be helpful to the Court. Plaintiff argued in his Issue Paper that the dustproof barrier provision in the Food Code required that ambient air (air in the room surrounding the ice machine) be prevented from entering any area of an ice machine where ice was made or stored. Scotsman interpreted this provision differently based upon its stated purpose in Annex 3 of the Food Code. Section 4-204.18 of Annex 3 states: A dust-proof barrier between a condenser and food storage areas of equipment protects food and food contact areas from contamination by dust that is accumulated and blown about as a result of the condensers operation. Scotsman noted in its statement to the NSF task group, therefore, that the dustproof barrier provision, as evidenced by Annex 3, was intended only to create a physical separation between the ice and the condenser fan compartment. (Exhibit A at 4.) That separation would prevent the condenser fan from blowing dust that had accumulated in the condenser compartment onto the ice. (Id.) Put another way, Scotsman read the term dustproof barrier to prevent the passage of dust from the condenser compartment into the food zone; Plaintiff read it to mean the food zone must be completely airtight. The point for purposes of this Motion, however, is simply that disagreement over interpretation of an undefined term in the Food Code cannot be the basis for a defamation claim. 8
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was Scotsmans interpretation of the Food Code. That is pure opinion. See General Cigar Holdings, Inc. v. Altadis, S.A., 205 F. Supp. 2d 1335, 1357 (S.D. Fla. 2002) (recognizing in the context of Lanham Act claim that absent a clear and unambiguous ruling from a court or agency of competent jurisdiction, statements by laypersons that purport to interpret the meaning of a statute or regulation are opinion statements and not statements of fact.). Particularly instructive is Weight-Rite Golf Corporation v. United States Golf Association, 766 F. Supp. 1104, 1111 (M.D. Fla. 1991). There, a golf shoe manufacturer claimed that the United States Golf Association (USGA) defamed it by stating that its new shoe violated the USGAs golf rules. The court held that the statement could not be defamatory because the USGAs interpretation of the rule clearly involve[d] the exercise of some judgment. Id. The same is true here. The Food Code does not define dust-proof barrier, leaving its meaning open to interpretation. See FDA 2009 FOOD CODE, at passim. Scotsman explained its interpretation, and Plaintiff disagreed. But an interpretation of an administrative code provision cannot be defamatory; and neither can a disagreement over that interpretation. C. The Third Alleged Statement, Regarding Plaintiffs Motivation, is Not Defamatory and is Protected by the First Amendment.

The third alleged statement that Plaintiff was making his claims for commercial purposes (FAC Count I at 9) is not actionable for two reasons. First, it is not defamatory, because Plaintiff admits in the First Amended Complaint that it is true. Second, it is protected by the First Amendment in any event. The statement is not defamatory in the first instance, because Plaintiff admits he had a commercial purpose. In Paragraph 8 of the First Amended Complaint, Plaintiff concedes that he tried to license his device to Scotsman. Pointing out Plaintiffs commercial perspective is certainly not defamatory. It is no more defamatory than pointing out the potential bias of a 9

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source for a quote in a newspaper article. That information should be encouraged, not chilled, because it helps the listener evaluate the differing views in the marketplace for ideas. Other courts have recognized that where a plaintiff concedes that an allegedly defamatory statement is true, dismissal is appropriate. See, e.g., Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1307-09 (11th Cir. 2001) (applying Florida law and dismissing defamation claim where Plaintiff conceded the statement was true). Moreover, Plaintiff again misstates what Scotsman said. He alleges that Scotsman falsely assert[ed] that Robert Almblad was making false claims about his own inventions for his commercial advantage. (FAC Count I 9 (emphasis added).) But Scotsman did not accuse Plaintiff of making false claims, and Scotsman did not say anything whatsoever about Plaintiffs inventions. (Exhibit A at 3-4.) Words matter in a defamation claim, and Plaintiff repeatedly tries to put words in Scotsmans mouth that it never used. Scotsman made two statements referring to Plaintiffs commercial motive: that Mr. Almblad misinterprets the FDA Food Code to suit his commercial purposes (Ex. A at 4), and We appreciate the opportunity to address Mr. Almblads erroneous claims and mischaracterizations that are meant to serve his commercial purposes. (Ex A at 3.) When

Scotsmans actual statements are reviewed, it is apparent that they are not defamatory. It is not defamatory to point out that someones views are mistaken. See Lott v. Levitt, 556 F.3d 564, 566-67 (7th Cir. 2009) (disagreement with plaintiffs article did not constitute defamation). If the rule was otherwise, public discourse would be overly restrained. That is particularly true in the context of a meeting held to discuss whether foodservice equipment sanitation standards should be changed it is precisely that type of discourse that is necessary.

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Even if Scotsmans statement about Plaintiffs commercial motive was defamatory (and it is not, for the above reasons) it is protected by the First Amendment. In a long line of cases, the United States Supreme Court has held that under the First Amendment, only statements capable of being proved false are actionable. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986). A statement about a partys motivation is not capable of being proved false. See Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995). Statements relating to matters of public concern which [do] not contain a provably false factual connotation will receive full constitutional protection. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); Falwell, 485 U.S. at 50; Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 13-14 (1970) (holding that the plaintiff real estate developer could not recover for being accused of blackmail); Letter Carriers v. Austin, 418 U.S. 264, 284-286 (1974) (holding that the use of the word traitor in literary definition of a union scab not basis for a defamation action); Hepps, 475 U.S. at 777; Milkovich, 497 U.S. at 16-20 (discussing Hepps, Falwell, Bresler and Letter Carriers in detail). Statements addressing an individuals motive are one type of such protected speech. In Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995), the court held that an allegedly defamatory statement about the plaintiffs motivation was not actionable because the truth or falsity of the statement did not rest on a core of objective evidence. Id. at 366-67 (citing Milkovich, 497 U.S. at 20) (other citations omitted). Simply put, a persons true motive is not provably false. Likewise here. Scotsmans statements about Plaintiffs commercial purpose are not susceptible of objective verification or falsification. While Plaintiff admits he had a commercial

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purpose, his actual motive for making any particular claim is inherently subjective and cannot be proven with objective evidence. It was for this reason that the court in Underwager held the The same

First Amendment protected the allegedly defamatory statement at issue there.

outcome is warranted in this case. The NSF conference involved public food and sanitation standards, a matter of public concern, and in that context, the First Amendment must allow for the free flow of subjective opinions, including the right to address a persons motive and disagree with his claims. Ultimately, Scotsman and Plaintiff simply disagree about whether any public health concern creates a need for the device Plaintiff is trying to license. But the Seventh Circuit has recognized that such disputes should not, indeed under the First Amendment cannot, be the subject of a defamation claim. In Lott v. Levitt, 556 F.3d 564 (7th Cir. 2009), an economist criticized in the book Freakonomics sued the books author, claiming that he had been defamed. The economist claimed he had been disparaged by statements that regardless of whether the data were faked , . . . [w]hen other scholars tried to replicate his results they failed to arrive at the same result. Id. at 566-67. The economist alleged that those statements

amounted to an accusation that he falsified his results. The Seventh Circuit disagreed. It distinguished between a criticism of the plaintiff and a criticism of his ideas. Id. at 570. The court held, To the extent [the plaintiff economist] is complaining about an attack on his ideas, and not his character, he is barking up the wrong tree. The remedy for this kind of academic dispute is the publication of a rebuttal, not an award of damages. Id. The same approach is appropriate here. Plaintiff and Scotsman disagree. But

disagreement is not defamation. Scotsman explained the basis for its views. It explained its testing results, explained its interpretation of the Food Code, and allowed the scientists it retained

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to advise it about Plaintiffs health claims to explain their views in public. Plaintiff was present and responded at length. That type of debate and public discussion, particularly in the context of a standards setting body, should not be chilled with the threat of defamation suits. It should be promoted. The defamation claim should be dismissed. II. THE LANHAM ACT CLAIM SHOULD BE DISMISSED. Count II is a claim under section 43(a) of the Lanham Act, which is codified at 15 U.S.C. 1125(a). It should be dismissed for two reasons. First, Plaintiff lacks standing to sue because he does not compete with Scotsman and therefore Scotsmans alleged actions, even if assumed to be true, could not have caused competitive injury to Plaintiff. Second, the Lanham Act claim should also be dismissed because Scotsmans alleged statements were not made in a commercial or promotional context. To bring a false advertising claim under 43(a) of the Lanham Act, plaintiff must allege a discernible competitive injury in order to have standing. LS Heath & Son, Inc. v. AT&T Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir. 1993). To assert a discernible competitive injury, the plaintiff must be a direct competitor of the defendant, competing in the same industry and at the same level of business as the defendant. See Id. (affirming grant of summary judgment and holding that candy producer lacked standing to sue computer system installer for false advertising because plaintiff was not a competitor of defendant); Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427 (7th Cir. 1999) (affirming grant of summary judgment and holding that cartoon animator lacked standing to bring false advertising suit against NFL and owner of St. Louis Rams because plaintiff was not in the NFL and not a competitor). Courts have repeatedly held that a plaintiff lacks standing to sue if it is engaged at a different level of the distribution chain than the defendant, even when both parties are involved in the same industry. As explained in Gail Green Licensing & Design Ltd. v. Accord, Inc., No. 13

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05-C-5303, 2006 WL 28732020 (N.D. Ill. Oct. 5, 2006), a plaintiff that develops or sells a product that is to be used as a component of another companys product is not a direct competitor for purposes of this section of the Lanham Act. Id. at *5. In Gail Green, the plaintiff developed creative works and attempted to license those works to defendants. The defendants manufactured and sold clothing and accessories for pets. The plaintiff hoped defendants would use its designs in their products. Because the plaintiff did not actually manufacture and sell clothing and accessories for pets only the creative designs used in those products the court held it was not engaged in the same business as the defendants and did not have standing. Id. See also Medallion Products, Inc. v. McAlister, No. 06-C-2597, 2008 WL 5046055, at *4 (N.D. Ill. Nov. 20, 2008); Doctors Data, Inc. v. Barrett, No. 10-C-3795, 2011 WL 5903508, at *5-*7 (N.D. Ill. Nov. 22, 2011); Goodloe v. National Wholesale Co. Inc., No. 03-C-7176, 2004 WL 1631728, at *12 (N.D. Ill. July 19, 2004). Here, Plaintiff has not alleged, and cannot plausibly allege, that he competed with Scotsman. Scotsman manufacturers and sells ice machines. (FAC at Count I 2.) Like the plaintiff in Gail Green, Plaintiff here alleges only that he sought to license his device to Scotsman to be retrofitted into Scotsmans machines. (FAC at Count I 8.) He did not sell ice machines. Because Plaintiff cannot claim to be a direct competitor of Scotsman, he lacks standing to sue and his Lanham Act claim must be dismissed on this basis alone. Further, Plaintiff does not allege that Scotsman made a false statement of fact in commercial advertising or promotion, and Plaintiff cannot make this allegation. A section 43(a) false advertising claim requires that the statements at issue occur in an advertising or promotional context. Section 43(a)(1)(B) is limited to false or misleading commercial

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advertising or promotion and does not cover all deceitful business practices. ISI Intern., Inc. v. Borden Ladner Gervais LLP, 316 F.3d 731, 733 (7th Cir. 2003). Here, the only facts pled in the FAC reveal that the statements at issue were made during the NSF task group teleconference and were not made for any commercial advertising or promotional purpose. The NSF task group teleconference was held to consider a proposed change to NSF Standard 12. (FAC Count I 10.) Plaintiff has not alleged and cannot allege that Scotsman made any attempts to sell or market its products during the teleconference. Accordingly, Plaintiff cannot state a claim for false advertising under the Lanham Act and his complaint should be dismissed. MapQuest, Inc. v. CIVIX-DDI, LLC, No. 08-C-1732, 2009 WL 383476, at *5 (N.D. Ill. Feb. 11, 2009) (dismissing claim because plaintiff did not plead sufficient facts to show that statements were commercial advertising).7 For these reasons, Plaintiffs Lanham Act claim should be dismissed with prejudice. III. CONCLUSION The Court should grant Scotsmans motion and dismiss Plaintiffs Amended Complaint in its entirety and with prejudice.

The situation here is quite different from the facts in Neuros Co., LTD v. KTurbo, Inc., 698 F.3d 514 (7th Cir. 2012). In Neuros, the defendant made a series of road show presentations where it repeatedly visited de facto customers and presented promotional materials that trashed the defendants direct competitor in an effort to persuade customers to purchase its products. In contrast, during the NSF teleconference, Scotsman merely responded to Plaintiffs Issue Paper; it made no sales or promotional efforts. Plaintiff does not allege any facts to the contrary, and the NSF Summary confirms that no such activity took place. (Exhibit A.)

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Dated: May 9, 2013

Respectfully submitted, /s/ Matthew B. Mock_______ Charles H.R. Peters Matthew B. Mock Brian L. Josias SCHIFF HARDIN LLP 233 South Wacker Drive, Suite 6600 Chicago, Illinois 60606 Phone: (312) 258-5500 Fax: (312) 258-5600 Counsel for Defendants Scotsman Industries, Inc. and Kevin Fink

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CERTIFICATE OF SERVICE I hereby certify that on May 9, 2013, I electronically filed the foregoing Memorandum in Support of Defendants Motion to Dismiss, with the Clerk of Court using the CM/ECF system, which will cause an electronic copy to be served on counsel of record, who is listed below: Nicholas J. Motherway Motherway & Napleton, LLP 100 West Monroe St,, Suite 200 Chicago, IL 60603 Phone (312) 726-2699 nmotherway@mnlawoffice.com

/s/ Matthew B. Mock

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