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United States District Court, S.D. New York

July 26, 2004.

PLAYTEX PRODUCTS, INC., a Delaware Corporation, Plaintiff,
PROCTER & GAMBLE COMPANY, an Ohio Corporation, Defendant.

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.

  A. Rule 50(b) Standards

  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 itself").

  B. Waiver

  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).

  i. Testing

  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 two acknowledged that he didn't have the expertise to opine as to whether these claims were appropriate to support the advertising so I think on the literally false claim [Playtex] failed to meet their burden of proof.
(Tr. at 880-81.)

  P&G's Rule 50(a) argument sufficiently encompasses P&G's current 50(b) motion concerning the tests' ability to replicate real-world conditions. However, its current Rule 50(b) claim that Playtex's testing sample size was inappropriately small fails to correlate to its Rule 50(a) arguments. P&G's Rule 50(a) motion concerning Playtex's testing was directed solely to the external validity of the tests, not sample size. Indeed, P&G's Rule 50(a) argument did not mention the studies' sample size or the powering of testing. Thus, this Court cannot consider P&G's Rule 50(b) arguments concerning the sample size of Playtex's tests. See, e.g., Bracey, 268 F.3d at 117 (holding district courts may not excuse the Rule 50(a) requirement); Cruz, 34 F.3d at 1155 (barring certain claims on Rule 50(b) motion where party failed to specifically preserve those issues in a prior motion for directed verdict); Lambert, 10 F.3d at 53-54 (noting that "the specificity requirement is obligatory" when examining the correlation between Rule 50(a) and 50(b) motions).

  ii. Damages

  P&G also made a Rule 50(a) motion during trial that sufficiently encompasses its current Rule 50(b) motion regarding damages. Specifically, P&G's counsel argued:

[W]ith respect to damages, I don't think that Dr. Lynde made out a case, an appropriate case of causation. He, I think acknowledged that, in essence, he excluded, attempted to exclude the sales as to which price was the reason for the lost sales but none of the other factors, so we don't think that is adequate.
(Tr. at 881.) Whether Dr. Lynde "made out an appropriate case of causation" (Tr. at 881) relates directly to the reliability of Dr. Lynde's methodology and whether his damages model accounted for the proportion of lost profits attributable to P&G's false advertising. Accordingly, this Court considers all of P&G's arguments concerning damages on its Rule 50(b) motion. C. Challenge to Product Testing

  P&G acknowledges that this Court correctly charged the jury that to find P&G liable for falsely advertising that its tampons provide superior comfort and leakage protection than Playtex's tampons, Playtex's testing on these issues must satisfy two conditions: (1) the products must be used in Playtex's test the same way they are used in the real world; and (2) the testing must prove that Tampax Pearl is equal or inferior to Gentle Glide. (P&G Br. at 3; Tr. at 1625.) P&G argues that the jury's verdict should be set aside "[b]ecause Playtex failed to provide evidence sufficient to sustain its burden of proof on the first of these issues with respect to the comfort and leakage protection claims, and on the second of these issues with respect to the leakage protection claim." (P&G Br. at 3.)

  i. Normal Consumer Usage

  At trial, Playtex offered its HPT-02-27 study (the "HPT") to prove as false P&G's claim of superior comfort and its Actual Use Tests (the "AUT")*fn1 to prove as false P&G's claim of superior leakage protection. Playtex used the HPT and AUT tests to show that consumers found parity between Playtex's Gentle Glide tampons and P&G's Tampax Pearl tampons as to comfort and leakage protection. P&G argues that the tests are deficient as a matter of law because they did not replicate real world conditions of tampon use. (P&G Br. at 4.) Under the Lanham Act, product testing can prove an advertising claim false or misleading only if those tests have some "real world" applicability. S.C. Johnson & Son, Inc. v. Clorox Co., 930 F. Supp. 753, 766 (E.D.N.Y. 1996); Gillette Co. v. Wilkinson Sword, Inc., 89 Civ. 3586 (KMW), 1989 WL 82453, at *2 (S.D.N.Y. July 6, 1989). The jury found P&G's claims of superior comfort and leakage protection false, implicitly finding that the tests were generalizable to the real world.

  At trial, this Court charged the jury that:

As a general rule, product tests should attempt to replicate how the consumer uses the product in real life as much as possible. To determine whether the product test mirrored how the products are used in the real world, you should consider, among other things, whether the participant used the product as she would in her ordinary life.
(Tr. at 1625.) Indeed, Playtex's witnesses acknowledged that their tests should correspond to real-world application of the product, or in other words, have external validity. (See, e.g., Tr. at 318, 621.) At trial, the jury was presented with sufficient testimony concerning the external validity of the HPT and AUT studies. For example, when challenged as to whether the AUT tests "mirrored actual consumer use," Dr. John Finn, Playtex's Senior Manager for Consumer Guidance Research, testified that it "approximated normal usage" by consumers. (Tr. at 319-20.) Dr. Finn also testified that the AUT tests had "external reality or external validity" because the tests mirrored approximate use. (Tr. at 319-20.) Similarly, with regard to the HPT test, Dr. Finn testified that when he reported the test results to Playtex's President of Personal Products, Richard Powers, he believed that the HPT was generalizable to the population. (Tr. at 302, 320.)

  P&G argues that Playtex's tests fail to account for external validity because respondents were asked at times to wear tampons to saturation. When challenged as to whether Playtex's AUT study respondents wearing tampons to saturation leakage were testing normal use conditions, Keith Edgett, Playtex's Director of Research and Development, testified "Well, what's not normal about it? Women experience leakage all the time and the majority of that leakage is saturation leakage. So yes, this is an actual test, we ask them to wear it to leakage. Women don't prefer to wear their products to saturation and leakage but it happens, very, very often, so it is representative of in-use conditions." (Tr. at 432.) When challenged on cross-examination again, Edgett consistently testified that the AUT test "measures normal usage as it pertains to how leakage occurs in the body, but I'm not looking to understand consumer perceptions. I am looking to understand performance, functionality, leakage functionality within a functional design, which is a different design than a consumer research study looking for perception." (Tr. at 437; see also Tr. at 377-78 (concluding from the results of the AUT studies "that these products performed equally in the body").)

  Finally, Playtex also offered testimony concerning the results of its in vitro syngyna testing, a type of absorbency testing used by the parties under Food and Drug Administration ("FDA") mandated guidelines. (Tr. at 895-96.) Edgett testified that the syngyna test could not only advise whether a tampon meets FDA absorbency guidelines, but also could provide "other insights with respect to how the tampon will likely perform or potentially perform in-body with respect to leakage, fluid absorption, etc." (Tr. at 356.)

  There was sufficient evidence before the jury to permit a rational trier of fact to find that Playtex's studies had realworld application. P&G's arguments amount to credibility attacks on Playtex witnesses who testified about the tests' external validity. This Court is not permitted to substitute its judgment for that of the jury's on credibility determinations. See Vasbinder, 926 F.2d at 1339-40. Accordingly, P&G's Rule 50(b) arguments concerning real-world applicability are without merit. ii. Sample Size

  P&G also argues that Playtex's AUT tests, used to measure leakage protection, were invalid and should not have been relied upon by the jury because they were not powered to prove parity between the parties' products.*fn2 Essentially, P&G contends that the sample size of the AUT tests were inappropriately small. As noted, P&G failed to make a Rule 50(a) motion concerning powered testing or sample size. Accordingly, this Court will not consider P&G's Rule 50(b) arguments on this issue. See infra at Section I.B.1.

  D. Challenge to Damages

  P&G contends that the jury's damage verdict of $2.96 million in lost profits should be set aside due to lack of evidence on causation of damages, including Playtex's use of a damage model that purportedly failed to sufficiently account for causation. (P&G Br. at 2, 11.) P&G's argument, largely repetitive of arguments this Court rejected in its pre-trial in limine rulings, is without merit. See Playtex Prods., Inc. v. Procter & Gamble Co., 02 Civ. 8046 (WHP), 2003 WL 21242769, at *4-6 (S.D.N.Y. May 28, 2003). A plaintiff who establishes false advertising under the Lanham Act is only entitled to damages caused by the violation. Brundy Corp. v. Teledyne Indus., Inc., 748 F.2d 767, 771 (2d Cir. 1984); Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 969 (D.C. Cir. 1993); Mobius Mgmt. Sys., Inc. v. Fourth Dimension Software, Inc., 880 F. Supp. 1005, 1022 (S.D.N.Y. 1994). While some degree of speculation in computing the amount of damages is acceptable, causation must initially be established. Brundy, 748 F.2d at 771; Braun v. Optiva Corp., 98 Civ. 4070 (RCC), 2000 WL 1234590, at *2 (S.D.N.Y. Aug. 31, 2000); Nikkal Indus., Ltd. v. Salton, Inc., 735 F. Supp. 1227, 1233 (S.D.N.Y. 1990); J. Thomas McCarthy, Trademarks and Unfair Competition § 30.79 (4th ed. 2004).*fn3

  i. Dr. Lynde's Damages Model

  Dr. Matthew R. Lynde, an expert in applied economics and econometrics, testified at trial on behalf of Playtex concerning whether "there was harm caused to Playtex under the assumption that there was false advertising, and[, if so,] . . . to try to quantify that amount." (Tr. at 757-60.) Dr. Lynde calculated that Playtex's gross loss attributable to P&G's lawful and unlawful competition as a new entrant in the tampon market was $13.36 million. (Tr. at 782, 778-79.) As Dr. Lynde correctly acknowledged at trial, however, only losses attributable to P&G's false advertising, as opposed to lawful competition, may be recovered: "I am not imputing any harm to that good and helpful [competitive] activity. The question is[,] of that total loss how much was due to the false advertising[?]" (Tr. at 779.) From the $13.36 million in gross loss, Dr. Lynde calculated that $2.96 million of that amount was caused by P&G's false advertising.*fn4 (Tr. at 761, 809; Oral Arg. Tr. at 26.) In determining the $2.96 million lost profits amount, Dr. Lynde "calculated the lost units attributable to false advertising, [23.65 million units,] times the per unit profit." (Tr. at 780-81; see also Tr. at 771-84 (explaining basis for damage calculation).) Dr. Lynde further testified that his estimates were conservative. (Tr. at 777, 779, 782.) ii. Causation

  First, P&G contends that there is no evidence of a connection between Playtex's losses and P&G's false advertising. A review of the record, however, indicates that the jury was presented with ample evidence of causation at trial. At trial, Dr. Lynde testified that a causal link existed between P&G's false advertisements and Playtex's loss of market share. To buttress his opinion, Dr. Lynde relied on party declarations and deposition testimony, as well as documents from both parties and from Leo Burnett, P&G's advertising agency, which included internal memoranda and A.C. Nielsen studies and ratings from retail scanners. (See, e.g., Tr. at 762-64, 805, 820-22.) From this information, Dr. Lynde controlled for other factors which could have accounted for Playtex's loss of market share, examined markets where Playtex was actively defending against the Tampax Pearl advertising through price discounts and promotions, and determined that any residual impact could be attributed to the false advertising. (See, e.g., Tr. at 759-68, 771-84.)

  Second, P&G argues that Dr. Lynde failed to consider any other causal factor besides price in determining that Playtex had lost approximately $2.96 million in profits due to P&G's false advertising. (P&G Br. at 8.) That contention is similarly without merit. In explaining the lost profits damages Playtex sought, Dr. Lynde repeatedly testified as to the external factors and market forces that he examined and controlled for in determining why Playtex was losing market share. (See, e.g., Tr. at 762-65, 767-68, 775-77, 800-01, 809, 822-23 ("I controlled for every other thing which could explain why Playtex was losing market share — brand loyal people — to the Pearl product. Everything else had been eliminated. It wasn't trends in the national economy . . . or in consumer packaged goods. It wasn't superior promotional activity or just the fact of advertising.").) Indeed, Dr. Lynde eliminated lost sales due to price competition in the damages model, as well as various lawful promotional activity. (See, e.g., Tr. at 801-02, 809, 818-19, 822-23.) He further accounted for consumers who may have purchased P&G's product for reasons other than the false advertising, as well as "the mere fact [that] a launch of a new product by a well-known brand would take share away from a competitor." (Tr. at 800-801.)

  The jury listened to evidence regarding causation, Dr. Lynde's theory on lost profits, as well as testimony from P&G's expert, Dr. Elisabeth Landes, attacking Dr. Lynde's damages theory on nearly identical grounds as P&G argues in the present motion. (Tr. at 1427-80.) After review of all the evidence and argument from both parties, the jury made a credibility determination and accepted Dr. Lynde's theory of damages over P&G's attacks. This Court may not second-guess the jury's credibility determination as it is based on sufficient evidence. See Toporoff Eng'rs, 371 F.3d at 108. To the extent that P&G argues that Dr. Lynde's methodology is otherwise flawed because it does not rely on well-accepted economic principles, that argument is meritless. (Transcript of Oral Argument, dated Aug. 1, 2003 ("Oral Arg. Tr.") at 16, 25-26.) Both Drs. Lynde and Landes testified that they could not perform a regression analysis to determine whether or not false advertising caused damage to Playtex because there was insufficient data available to complete such an analysis. (Tr. at 768-70, 1473.) Instead, Dr. Lynde created a detailed damages model, based on basic economic principles, that tracked the unit price versus the market share that P&G's Pearl was gaining against Playtex's Gentle Glide. (Tr. at 771-84, 820.)

  As noted, this Court has thoroughly reviewed the trial testimony as well as Dr. Lynde's damages model and finds that Dr. Lynde's methods are sound, supported, and non-speculative. Accordingly, P&G's Rule 50(b) motion to overturn the jury's award to Playtex of $2.96 million in lost profits is denied, as there was sufficient evidence at trial for a rational juror to award such an amount. See Sir Speedy, 957 F.2d at 1039.

  II. Reconsideration

  P&G also moves this Court to reconsider the scope of the permanent injunction. Local Civil Rule 6.3*fn5 provides in relevant part: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions to which counsel believes the court has overlooked." "Thus, to be entitled to reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion, which, had they been considered `might reasonably have altered the result reached by the court.'" Chere Amie, Inc. v. Windstar Apparel, Corp., 01 Civ. 0040 (WHP), 2002 WL 31108187, at *1 (S.D.N.Y. Sept. 23, 2002) (citations omitted); accord Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Cohen v. Koenig, 932 F. Supp. 505, 506-07 (S.D.N.Y. 1996).

  Courts narrowly construe this standard and apply it strictly against the moving party so as to "dissuade repetitive arguments on issues that have already been considered fully by the court." Caleb & Co. v. E.I. DuPont De Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). The purpose of Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988). The decision to grant or deny the motion is within the sound discretion of the district court. See Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).

  P&G argues on reconsideration that the permanent injunction is overbroad because it: (1) "prohibits P&G from making superior wearing comfort claims with respect to specific absorbencies other than super absorbency or across P&G's entire Tampax Pearl line"; (2) "bars P&G from making superiority claims addressed to every potential group of consumers, including, for example, cardboard users and non-Gentle Glide users"; and (3) "bars P&G from making any comparative leakage claim, including, for example, claims related to a specific categories of leakage." (Def. Br. at 4-5.) As P&G counsel acknowledged at oral argument, these same allegations were carefully considered and rejected by this Court after counsel's briefing and argument of Playtex's motion for a permanent injunction. (Schwab Decl. Exs. 3-5; Oral Arg. Tr. at 19 (Q: "Isn't [the reconsideration] motion just a reiteration of the arguments in your letter memorandum?"; A: "Yes it is.").) The injunction was narrowly tailored to conform to the jury's findings of fact, which were well-supported by evidence submitted at trial, as recorded on the stipulated verdict sheet.*fn6 See Wade v. Orange County Sheriff's Office, 844 F.2d 951, 954 (2d Cir. 1988) ("[W]hen the jury has decided a factual issue, its determination has the effect of precluding the court from deciding the same fact issue in a different way."); Song v. Ives Labs., Inc., 957 F.2d 1041, 1048 (2d Cir. 1992) ("When legal and equitable actions are tried together, the right to a jury in the legal action encompasses the issues common to both."). As P&G acknowledges that it offers no facts or controlling decisions overlooked by this Court on the underlying motion (Oral Arg. Tr. at 19), its motion for reconsideration is denied. CONCLUSION

  For the reasons set forth above, defendant Procter & Gamble Company's motions for reconsideration and for judgment as a matter of law are denied.


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