Suing for false advertising as abuse of process

Bobrick Washroom Equipment, Inc. v. Scranton Products, Inc.,
2017 WL 2126320, No. 14-CV-00853 (M.D. Pa. May 16, 2017)
In May 2014 SP sued Bobrick, alleging that it “carefully
orchestrated a campaign to scare architects, product specifiers, procurement
representatives, building owners, and others in the construction industry into
believing that Scranton Products’ toilet partitions are fire hazards, are
unsafe and pose health and safety risks if used in building projects across the
country.” After SP voluntarily dismissed the claim, Bobrick filed a complaint
asserting false advertising and wrongful use of civil proceedings under
Pennsylvania’s Dragonetti Act, as well as common law unfair cornpetition and
abuse of process claims.
Bobrick’s Lanham Act and unfair competition claims arose
from SP’s alleged misrepresentations of “thousands of its high density
polyethylene (‘HDPE’) toilet partitions sold for installation in schools and
other public and private buildings as being compliant with applicable fire,
life safety, and building code requirements.” SP allegedly falsely represented
that its HDPE toilet partitions comply with the requirements of the NFPA 286
room-corner test, a fire performance test promulgated by the National Fire
Protection Association, even though SP allegedly improperly modified and
manipulated the test methodology to produce a favorable result, thereby
invalidating the test, and sold toilet partitions with a different chemical
composition and physical structure than those it claimed to have successfully
tested under NFPA 286.
As for the abuse of process-type claims, Bobrick alleged
that SP knew or should have known that its central claims—similar to those
challenged in the false advertising claims here—were false, but sued anyway,
for “the improper purpose of stifling legitimate competition by Bobrick,
silencing Bobrick’s efforts to educate market participants about code
requirements in the interest of public safety, and inflicting financial harm on
Bobrick for unfair competitive advantage by increasing Bobrick’s costs and
otherwise.” The result was “[n]early three years of costly and time-consuming
litigation.”  SP also allegedly destroyed
numerous relevant documents while contemplating litigation and made discovery
more costly in various ways, including by miseading Bobrick and the court.

The court first found that false advertising was cognizable as unfair
competition under Pennsylvania common law, which was not limited to passing
off.  Then it refused to dismiss the
abuse of process claim. “Generally speaking, to recover under a theory of abuse
of process, a plaintiff must show that the defendant used legal process against
the plaintiff in a way that constituted a perversion of that process and caused
harm to the plaintiff.”  Though un-of-the-mill
discovery disputes cannot constitute an abuse of process under Pennsylvania
law, Bobrick alleged “facts far more detailed and nefarious: that SP knew that
some or all of its HDPE toilet partitions did not actually comply with NFPA 286
(i.e., its claims were baseless) yet SP nevertheless continued to prosecute
this lawsuit for nearly three years, all while stifling Bobrick’s legitimate
discovery efforts for the specific purpose of financially harming Bobrick and
gaining a competitive advantage in the marketplace.” 

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