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GUARDSMARK, INC. v. PINKERTON'S INC.

June 6, 1990

GUARDSMARK, INC., PLAINTIFF,
v.
PINKERTON'S, INC., DEFENDANT.



The opinion of the court was delivered by: Cedarbaum, District Judge.

OPINION AND ORDER

Plaintiff, Guardsmark, Inc., and defendant, Pinkerton's, Inc., are in the business of providing security services. Both companies believe that psychological testing of security guards is important to the provision of effective security services, and both agree that in recent years users of security services have become increasingly interested in the psychological testing of the security officers assigned to them. Guardsmark tests all of its security guards with The Minnesota Multiphasic Personality Inventory ("the MMPI").

In September of 1989, Pinkerton's distributed an illustrated ten page promotional brochure. On page three of the brochure, the following sentence appears: "First, we test every officer applicant with a special version of the MMPI psychological evaluation." Guardsmark contends that Pinkerton's inclusion of this sentence in its promotional material constitutes false advertising and unfair competition. Guardsmark has sued Pinkerton's for violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for violation of Sections 349 and 350 of the New York General Business Law, N.Y. Gen.Bus.Law § 349 (McKinney 1984) and N.Y. Gen.Bus.Law § 350 (McKinney 1963), and for the common law tort of unfair competition.

With the consent of the parties, after expedited discovery, a consolidated preliminary and permanent injunction hearing was held. The evidence was presented at a two day bench trial. After weighing all of the evidence and evaluating the credibility of the witnesses, I find that Guardsmark has not proven by a fair preponderance of the credible evidence that Pinkerton's has violated the law.

THE FACTS

The MMPI is one of the best known and widely used personality assessment tests. It was developed in the late 1930's and early 1940's by researchers at the University of Minnesota. The strength of the MMPI is attributable, in large measure, to the extensive research done during its development and during the years of its use.

The full MMPI consists of 566 questions. Originally, the questions were written on index cards which could be shuffled and given to a test subject in any order. Now, the MMPI is available in two test booklet versions, the Form R and the Full Form. Recently, the MMPI-2 was introduced. This new test is similar to the MMPI except that the order of some of the questions has been changed, some questions have been eliminated, and the language of some of the questions has been adjusted to better reflect current speech patterns. The MMPI-2 was designed so that all the research done on the MMPI would be applicable to it. In other words, it was intended to be the equivalent of and a substitute for the MMPI.

The MMPI is designed to be scored on fourteen different scales. Ten of these scales measure psychopathology. The other four scales are validity scales which measure the defensiveness and honesty of the test subject. After the answers are scored on the fourteen scales, the results are plotted on a graph. The MMPI profile on the graph is then interpreted by a qualified psychologist experienced in interpreting MMPI profiles. The test comes with instructional materials which explain how the fourteen scales should be scored. In fact, only 399 of the questions are used to produce the fourteen scales; the other questions are experimental and are designed to test for other things, like lower back pain. The Form R test booklet is designed so that all of the questions used for the fourteen scales are grouped at the beginning. Thus, the subject can stop after completing the first 399 questions and not spend time answering the experimental questions if the person administering the test has no need for the experimental scores.

Since the MMPI's introduction, independent researchers have been working to develop a shorter version of the MMPI. To date, at least fourteen such abbreviated versions have been developed and written about. These shorter tests are called "short form MMPI's," altered form MMPI's," or "abbreviated MMPI's." There is an extensive body of literature discussing these short form MMPI's. Dr. W. Grant Dahlstrom, plaintiff's expert witness, included chapters on MMPI short forms in several of his books on the MMPI.

One of the most widely known of the short form MMPI's is the MMPI 168. This test uses only the first 168 questions of the MMPI to generate the fourteen scales. The tables needed to convert the answers from the MMPI 168 into the scales are included in MMPI handbooks and code-books published by the University of Minnesota Press. The MMPI 168-E is another short form MMPI. It consists of the first 168 questions of the full MMPI plus all the K-scale questions. The K-scale is one of the four validity scales. It is used to measure subtle defensiveness.

Guardsmark administers the full MMPI to all its employees immediately after they are hired. The test is given at each employee's local office. The completed answer sheet is mailed to headquarters where it is fed into a computer which scores the scales and generates an MMPI profile. This profile is then read by a trained psychologist. The psychologist distills his conclusions into one or more codes. The codes are sent back to the local office, where they are interpreted by the use of a key produced by the psychologist. The local office uses the results of the MMPI to determine placement and appropriate disciplinary response in the event of improper conduct by the employee. Although Guardsmark submitted no advertising or promotional material in which it discussed its use of the MMPI, there was testimony that Guardsmark salespeople stress the use of the MMPI as a major selling point with potential customers.

Pinkerton's also does psychological testing. It tests all applicants for employment with a series of questions based on the MMPI 168-E.*fn1 However, Pinkerton's test booklet differs from the MMPI 168-E test booklet in that Pinkerton's has altered the wording of several of the questions, has changed the order of some of the questions, and has eliminated several questions which it found to be politically, religiously, or sexually offensive. The questions eliminated by Pinkerton's have also been eliminated or altered in the MMPI-2.

Pinkerton's test, created by Dr. Arthur LeBlanc, a psychologist employed by Pinkerton's, is designed to be administered and assessed at the local offices. After the answer sheet is completed, the clerk administering the test uses overlays designed by Dr. LeBlanc to score the test on five clinical scales and one validity scale. By applying these cutoff scores, the local office decides whether to hire the applicant. The overlays were developed by Dr. LeBlanc and include a built-in K-scale, which he generated based ...


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