LG and Whirlpool compete in the market for home laundry appliances, here specifically dryers with steam features designed to refresh fabrics by removing odors and wrinkles. LG alleged that Whirlpool’s “steam” dryers used no steam, and thus its ads were false.
Whirlpool’s Steam Dryers (that’s how they’re sold; the court was not judging truth at this point) work by “introducing a spray of cool or cold water into a hot, spinning dryer drum.” The resulting mist dampens the clothing, and the dryer’s heat and moving air speed evaporation. In-dryer temperatures range from under 60 degrees Celsius to over 140 degrees in certain locations. Clothing put in a Whirlpool Steam Dryer generally has fewer wrinkles after a steam cycle, but LG argued that conventional non-steam dryers have the same effect. LG’s Steam Dryer, by contrast, has a boiler unit outside the dryer drum which creates steam by boiling water and then injecting or spraying it into the drum as vapor, where it combines with cooler air and condenses into “hot while billowy steam.” (As Dave Barry says, sounds like a good name for a rock band.)
The parties pair their steam dryers with steam washers, and these sell for a premium over non-steam appliances. Both parties’ steam washers use an internal boiler to create steam that’s injected into the washer drum.
LG was first to market with a steam washer, which was immediately ranked as a top choice by Consumer Reports, displacing Whirlpool and spurring Whirlpool to act. Whirlpool rushed development of its stream dryer, which internal documents described as having a “refresh” cycle (a warm up stage, a water spray stage, a drying stage, and a cool down stage). It changed the name of its project from “Duet Myst” to “Duet Steam,” and managed to beat LG’s steam dryer to the market.
LG challenged a bunch of ad claims, including “Naturally steam out wrinkles and odors with the touch of a button. The new Duet Steam dryer features two cycles-Enhanced Touch-Up and Quick Refresh-that infuse clothing with steam to refresh and dewrinkle;” “The pure power of steam-Nothing beats the power of steam to get rid of wrinkles”; and “The Whirlpool Duet Steam laundry pair, a whole new way to care for your clothes from start to finish, with the pure power of steam.” (I think this last one is the most damning; I predict that a reasonable consumer would expect “steam” to mean the same thing in the washer as in the dryer.)
The question was: what does “steam” mean? Whirlpool offered several expansive definitions and contended that, at least, its dryer used steam defined as “vapor arising from a heated surface” and “the vapor phase of water,” even if it didn’t come from boiling water and wasn’t a visible mist formed by condensation of water vapor. Whirlpool’s expert concluded that this occurs when the sprayed mist evaporates after contact with hot clothing and dryer drum surfaces, and also later when the water vaporizes during drying. He opined that what happens in Whirlpool’s dryer is similar to what happens if you spray a mist into a hot oven—the water evaporates and the resulting vapor combines with the heated air. By his definition, however, evaporation occurring within and around a glass of water at room temperature is also steam. Plus, what happens in a conventional dryer is also steam on this view, making all dryers steam dryers. And the expert was unable to establish that water ever reached over 100 Celsius in the Whirlpool dryer, as required by another definition he used.
Whirlpool also pointed to a patent assigned to LG that used “steam” to mean “vapor arising from a heated surface.”
In a footnote, the court found articles referring to Whirlpool’s dryers as steam dryers to be inadmissible hearsay. That’s an interesting question—it seems to me that such articles could be nonhearsay evidence of the market meaning of “steam”—but that would be true if and only if the authors of the articles were aware of the different definitions Whirlpool and LG used and accepted Whirlpool’s definition, rather than accepting Whirlpool’s representation that it made a steam dryer.
Whirlpool argued that it should win summary judgment because its Steam Dryers met various definitions of steam employed by Consumer Reports, other magazines, competitors, dictionaries, and LG’s patent. The court found that the behavior of competitors was irrelevant to literal falsity, and that the magazines were hearsay. Given the competing definitions, the court couldn’t find lack of falsity as a matter of law. Moreover, LG argued that falsity by necessary implication applied. The court found material issues of fact as to whether Whirlpool’s claims necessarily implied a literally false message that the Steam Dryers use a different method for creating/using water vapor than that employed by conventional dryers. Given that Whirlpool advertised “a whole new way to care for your clothes from start to finish, with the pure power of steam. Just another laundry innovation from Whirlpool,” “a finder of fact could conclude that Whirlpool’s use of the word ‘steam’ necessarily implies the unambiguous message that Whirlpool’s dryers refresh clothing by a process not previously available in Whirlpool’s non-steam dryers.”
The court also rejected Whirlpool’s reliance on the patent—there was no evidence that the inventors were LG employees, and is about conventional dryers where the moisture comes only from wet clothes. Arguably, that even supports LG’s falsity by necessary implication argument.
Thus, Whirlpool was denied summary judgment on literal falsity.
Turning to implicit falsity, Whirlpool argued that LG’s survey was inadmissible. It was a double-blind mall intercept with a total of 440 interviews using open- and closed-ended questions, including “Did the commercial say, show, or imply anything about any unique feature of the advertised dryer?” The respondents were also given descriptions of two dryers. Dryer A was described thusly: “A mist of cold water is injected into the heated dryer drum. The dryer then heats the water and tumbles the clothes until dry.” Dryer B: “A hot vapor is injected onto clothes inside the dryer drum. The dryer then heats and tumbles the clothes until dry.” Then they were asked, given the commercial they just saw, whether the ad could be for Dryer A only, Dryer B only, both, or neither (along with don’t know).
Whirlpool criticized the questions as leading and unreliable, and argued that the control ad was too different from the test ad to eliminate noise. The court accepted the use of closed-ended questions as not inherently leading—they might just remind respondents of things that aren’t at the top of their minds. “[C]losed-ended questions are suitable for assessing choices between well-identified options or obtaining ratings on a clear set of alternatives.” Given the use of a don’t know/not sure option, and given that the consumers here probably don’t make appliance buying decisions impetuously using only the information at the top of their minds, the question here was okay. The jury could weigh the survey for itself.
The control ad was a different commercial for the Whirlpool products. A good control should differ minimally from the text except for the characteristic being tested. Again, the jury could weigh the success of the control.
In the end, the survey criticisms went to weight rather than admissibility.
Whirlpool also lost its motion to exclude LG’s expert Jacobi, an engineering expert, arguing that his opinion about whether Whirlpool’s dryer produced “lay steam” improperly put him in the position of determining meaning to consumers. The court mostly disagreed: Jacobi tested whether the dryer produced “steam” according to various definitions proferred by Whirlpool. Thus, he necessarily interpreted Whirlpool’s offered definitions, but that didn’t mean he purported to be a language expert or opined on the meaning of a given term. If he misinterpreted Whirlpool’s profferred definitions, that goes to weight rather than admissibility, except where he went beyond his expertise when testifying what “the most compelling lay definition of steam” would be, so that part of his testimony was stricken.