The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
Plaintiff, Playtex Products, Inc. ("Playtex") brought this
action for damages and injunctive relief alleging that defendant
Procter & Gamble Company ("P&G") violated the Lanham Act,
15 U.S.C. § 1125(a), by engaging in false advertising and unfair
competition. Specifically, Playtex alleged that P&G's advertising
claims communicated a false message that its Tampax Pearl tampons
are superior in comfort, protection and absorbency to Playtex's
Gentle Glide plastic applicator tampons. P&G counterclaimed,
alleging that Playtex's advertising claims that its tampons are
"So Comfortable You Can't Even Feel Them" constituted false
advertising and unfair competition.
The parties stipulated to withdraw their respective motions for
preliminary injunctions and proceed to trial on an expedited
basis. After a nine-day trial, the jury returned a unanimous
verdict in favor of Playtex finding, inter alia, that P&G
violated the Lanham Act by claiming in advertisements that its Tampax Pearl plastic applicator tampons are superior in
comfort, leakage protection and absorbency to Playtex's Gentle
Glide plastic applicator tampons. (Declaration of Jeffrey A.
Schwab, dated July 7, 2003 ("Schwab Decl.") Ex. 1 at 1: Jury
Verdict Sheet.) The jury awarded $2.96 million in lost profit
damages to Playtex, but did not award Playtex any damages to
compensate it for corrective advertising costs. (Schwab Decl. Ex.
1 at 2-3.) Further, the jury found that Playtex did not establish
by a preponderance of the evidence that P&G wilfully engaged in
false advertising. (Schwab Decl. Ex. 1 at 2.) Finally, the jury
found that P&G did not establish its counterclaim that Playtex
violated the Lanham Act with its "So Comfortable You Can't Even
Feel Them" slogan. (Schwab Decl. Ex. 1 at 3.)
Following the jury verdict, this Court requested and received
briefing and proposed orders by the parties on Playtex's motion
for a permanent injunction. (Schwab Decl. Exs. 3-4.)
Additionally, this Court heard oral argument on the scope of the
injunction. (See Transcript of Oral Argument, dated May 29,
2003 ("May 29 Tr.").) After reviewing the evidence and evaluating
the parties' thorough arguments, this Court entered a permanent
injunction against P&G, prohibiting it from continuing to
"falsely advertis[e] and promot[e] its Tampax Pearl tampons as
superior in comfort, protection and absorbency to [Playtex]
Gentle Glide tampons." (Judgment and Order of Permanent Injunction, dated May 30, 2003 ("Perm. Inj.") at 1.) In that
vein, P&G was enjoined from communicating that:
(a) Tampax Pearl tampons are superior in wearing
comfort or protection to Playtex Gentle Glide
tampons; and (b) Tampax Pearl tampons are superior in
absorbency to or have an absorbent braid for better
protection than Playtex Gentle Glide tampons, either
explicitly or by reference to the "leading plastic"
applicator tampon, and without limitation of
reference to the use of comparative words such as
"superior," "better," or "more."
(Perm. Inj. at 1-2.)
Currently before this Court are P&G's motions for: (1) judgment
as a matter of law against Playtex, pursuant to Fed.R.Civ.P.
50(b); and (2) reconsideration of this Court's entry of a
permanent injunction. For the reasons set forth below, P&G's
motions are denied.
I. Judgment as a Matter of Law
P&G moves pursuant to Fed.R.Civ.P. 50(b) for judgment as a
matter of law on the basis that: (1) the product testing
proffered by Playtex at trial is insufficient to support the jury
finding that P&G's claims of superior comfort and leakage
protection are false; (2) Playtex's product testing does not
support a finding that, with regard to leakage protection, the
parties' products were at parity or that P&G's Tampax Pearl tampons were inferior to Playtex's Gentle Glide tampons; and (3)
that the jury's award to Playtex of $2.96 million in lost profits
has no basis in law or fact.
Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure,
a court may grant a motion for renewed judgment as a matter of
law if "there is such a complete absence of evidence supporting
the verdict that the jury's findings could only have been the
result of sheer surmise and conjecture, or pure guesswork."
Provost v. City of Newburgh, 262 F.3d 146, 156 (2d Cir. 2001)
(internal citations omitted); accord Stratton v. Dep't for the
Aging, 132 F.3d 869, 878 (2d. Cir. 1997); Cruz v. Local Union
No. 3 Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir.
1994). A Rule 50(b) motion cannot be granted "if, drawing all
reasonable inferences in favor of the nonmoving party and making
all credibility assessments in his favor, there is sufficient
evidence to permit a rational juror to find in his favor." Sir
Speedy, Inc. v. L&P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir.
1992). Thus, this Court may only grant P&G's Rule 50(b) motion if
it cannot find sufficient evidence supporting the jury's verdict.
See Toporoff Eng'rs, P.C. v. Fireman's Fund Ins. Co.,
371 F.3d 105, 108 (2d Cir. 2004). Indeed, a movant seeking to set
aside a jury verdict faces "a high bar." Lavin-McEleney v.
Marist College, 239 F.3d 476, 479 (2d Cir. 2001). In considering a Rule 50(b) motion, courts "must give deference to all
credibility determinations made by the jury and to all reasonable
inferences from the evidence that the jury might have drawn in
favor of the nonmoving party," and "may not itself weigh the
credibility of the witnesses or otherwise consider the weight
of the evidence." Vasbinder v. Ambach, 926 F.2d 1333, 1339-40
(2d Cir. 1991) (citations omitted) (alterations in original);
accord Toporoff Eng'rs, 371 F.3d at 108 (reversing grant of
judgment as a matter of law where district court impermissibly
"made credibility determinations and weighed the evidence
As a preliminary matter, Playtex argues that P&G waived certain
arguments because P&G failed to raise them in a Rule 50(a) motion
prior to submission of the case to the jury. Specifically,
Playtex contends that P&G waived its claims that (i) Playtex's
studies were not powered to prove parity; and (ii) the
methodology employed in Playtex's damage expert's model was
unreliable. (Playtex Br. at 7-8, 17, 24.) "A post-trial
Rule 50(b) motion for judgment as a matter of law is properly made
only if a Rule 50(a) motion for judgment as a matter of law has
been made before submission of the case to the jury." Bracey v.
Bd. of Ed. of City of Bridgeport, 368 F.3d 108, 117 (2d Cir.
2004); accord Pittman by Pittman v. Grayson, 149 F.3d 111,
120 (2d Cir. 1998); LNC Investments, Inc. v. First Fidelity Bank,
126 F. Supp.2d 778, 784 (S.D.N.Y. 2001). "Though a procedural
requirement, it may not be waived by the parties or excused by
the district court." Toporoff, 368 F.3d at 117 (citing Cruz,
34 F.3d at 1155). The purpose of the rule is "to assure the
responding party an opportunity to cure any deficiency in that
party's proof that may have been overlooked until called to the
party's attention by a late motion for judgment." Piesco v.
Koch, 12 F.3d 332, 340 (2d Cir. 1993) (internal citation and
quotations omitted). Indeed, because a Rule 50(b) motion "is in
reality [a] renewal of [a] motion for a directed verdict, it
cannot assert new grounds for relief." Lambert v. Genesee
Hosp., 10 F.3d 46, 53-54 (2d Cir. 1993) (holding that there is a
specificity requirement at the directed verdict stage to preserve
the issue for a Rule 50(b) motion) (citing Meriwether v.
Coughlin, 879 F.2d 1037, 1044 (2d Cir. 1989)); accord Samuels
v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir. 1993)
(holding that the grounds for a Rule 50(b) motion are limited to
those raised with specificity in the prior Rule 50(a) motion for
a directed verdict).
P&G made a Rule 50(a) motion at the close of evidence, arguing,
inter alia, that Playtex's product tests "are not
generalizable to the real world and do not involve actual consumer use." (Trial Transcript ("Tr.") at 880.) Specifically,
P&G argued on its Rule 50(a) motion concerning Playtex's testing:
For purposes of the record I would just like to make
a Rule 50A motion. . . . The first ground relates to
the claims of literal falsity. As your Honor knows,
. . . [Playtex must] have tests which involve normal
use conditions that can be generalized to the real
world and there is lots of law that we cite and that
we will be citing in the jury charge on this, and I
think there is no evidence here.
The evidence is that the test[s] in fact are not
generalizable to the real world and do not involve
actual consumer use and that is, I think, based on
their own admissions. And, their expert, number one,
only testified with respect to internal identity
[sic, validity] and number ...