ANSI standards aren't well known enough to be material

Little Giant Ladder Sys. v. Tricam Indus., Inc., 2022 WL 325969, No. 17-cv-1769 (ECT/ECW) (D. Minn. Feb. 3, 2022)

This case previously traveled under a different name/lead plaintiff. The parties compete in the market for articulated ladders, also known as multi-position ladders. Little Giant argued that Tricam violated the Lanham Act and the Minnesota Deceptive Trade Practices Act by falsely representing that its ladders comply with ANSI ASC A14.2, a voluntary industry standard for portable metal ladders (one mandated by Home Depot, the big customer, for all its suppliers). The case was tried to the Court, and Little Giant lost.

ANSI “does not develop standards and will in no circumstance give an interpretation of any [ANSI standard].” And “no persons shall have the right or authority to issue an interpretation of an [ANSI standard] in the name of [ANSI].” The court determined that the interpretation of the standard was a fact question, since it wasn’t a legal rule having the force of law; even if that sometimes happens, it wasn’t at issue here as part of a regulatory regime. And on that question, it sided with Tricam, though the details of interpretation are not worth going into. Tricam did have external testing done for compliance with the standard, and passed that testing using its interpretation thereof. There were also dueling materiality surveys, Little Giant’s focusing on whether compliance with safety standards was important to purchasers and Tricam’s focusing on whether respondents actually knew what ANSI does.

Tricam argued that it didn’t “use” any statements on Home Depot’s website, because Home Depot “developed the ANSI compliance language in its IDM system, specified the compliance language to be used in a drop-down menu, and otherwise exercised substantial control over the website.” The question, the court thought, was whether a business “has ceded so much control that it is no longer ‘using’ the ad.” Here,

the better understanding of the trial record is that Tricam retained control over the statements on Home Depot’s website. Tricam entered the information, not Home Depot. Though Home Depot reviews the submitted information, it relies on vendors to ensure that content is accurate. There is no evidence suggesting Home Depot second-guessed, double-checked, or somehow verified the information vendors submitted through this system. If Home Depot could change the Tricam-related content on its webpage without Tricam’s input, there is no evidence that happened. And no evidence warrants concluding that Tricam was prevented from accessing or editing this content if that became necessary.

Tricam’s argument was that Home Depot required ANSI-compliance statements. But that didn’t remove responsibility from Tricam for making the statements if they weren’t true.

Fortunately for Tricam, Little Giant didn’t succeed in showing falsity. Initially, “statements of ANSI compliance are statements of fact, not of opinion.” The better view of the relevant standard meant that this statement was true. For belt-and-suspenders purposes, if the court was wrong about what ANSI requires, it would have found literal falsity.

“In the Eighth Circuit, materiality is not presumed even when a statement is found to be literally false.” And the statements, even if false, were not material. Defendant’s ANSI-specific survey was more persuasive because it was more specific to which safety standards mattered. The court also liked the survey size (1000 v. 200 for Little Giant) and open-ended questions (compared to a closed list of 10 possibly relevant factors that omitted others that consumers might care about like price, availability, and customer reviews).  Also, Tricam’s expert “spent considerable time in Home Depot stores observing customers shop for and purchase ladders”; Little Giant’s did not. In Tricam’s expert’s survey, in response to an open-ended question about reasons for purchase, none of the respondents mentioned ANSI, OSHA, or industry safety standards. Only 2% of purchasers who bought at Home Depot recalled seeing an ANSI-compliance statement on the label.

As Little Giant’s expert pointed out, Tricam’s survey also featured 87% of respondents answering, in response to a closed-ended question, that information on a ladder’s side label was either “very important” or “somewhat important” to their purchasing decision. “But the tremendous volume of information on the side labels of Tricam’s MPX ladders makes it impossible to know whether—and unwise to conclude that—the ANSI-compliance statement specifically prompted or affected these responses.” Only 42 percent of respondents had heard of ANSI, and that didn’t say whether it was important to purchase decisions.

Nor did non-survey evidence support materiality; fact witnesses had never heard of consumers relying on ANSI to buy a ladder.

literal falsity as Q of fact v. law and other important issues in a dueling ladder case

Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2021 WL 63108 (D. Minn. Jan. 7, 2021)

After remand because the court of appeals concluded that a materiality survey was wrongly excluded, the court here tries again in this false advertising case between competing sellers of articulated ladders, also known as multi-position (or MPX) ladders. Given the inclusion of the survey, a reasonable jury could find both that Tricam made a literally false statement and that Wing suffered cognizable commercial injury. One thing worth noting here is the relevance of greater availability of disgorgement of profits, creating the potential for an award even when damages can’t be proven with reasonable specificity.

Wing’s claims all revolve around ANSI A14.2, a voluntary industry standard that “prescribes rules governing safe construction, design, testing, care and use of portable metal ladders of various types and styles.” The standard says, inter alia, that when a ladder uses particular types of rungs those rungs “shall have a step surface of not less than 1 inch, either flat or along a segment of 3 inches or greater radius.” The outer rungs on Tricam’s multi-position ladders are greater than one inch deep in the middle, but they are crimped and less than one each deep at each end, where the rung meets the rail. Wing argued that they therefore fail to comply with the standard, despite (1) the label affixed to each ladder containing an oval icon that bears the text “MANUFACTURER CERTIFIES CONFORMANCE TO OSHA1 ANSI A14.2 CODE FOR METAL LADDERS”; (2) the portion of each product’s page at Home Depot’s website that provides: “Certifications and Listings: ANSI Certified”; and (3) the portion of each product’s page on Tricam’s website that provides: “CERTIFICATIONS: ANSI A14.2 OSHA.”

Tricam argued that it couldn’t be held responsible for statements on Home Depot’s website. The court found a jury issue (which is a gift to Tricam). “The gist of this argument is that Tricam only made this statement to Home Depot—not to the public—and that Home Depot was the one to disseminate it.” Thus, it wasn’t Tricam’s statement. Wing pointed out that Tricam “expected and intended that [statements to Home Depot] would be used in commercial advertising.”

How did the statements get on the website? Home Depot uses an Item Data Management (IDM) system vendor portal for “managing online content relating to products Home Depot sells (or that vendors hope Home Depot will sell)”:

Home Depot chooses what fields a vendor can or must populate within the IDM system, reviews the content vendors submit through the IDM system, may reject content that does not follow Home Depot’s requirements, must approve any changes requested by the vendor, and may itself change content on a product page without prior notification to the vendor.

Tricam knew that if it did not select some type of ANSI certification from a drop-down menu in the IDM system, Home Depot would not issue a SKU number for the product, and the product would likely not be sold at Home Depot. A Home Depot representative testified that the “IDM is the source of truth for all content as it relates to Home Depot” and that Home Depot relies on its suppliers, like Tricam, to make sure the content it enters into the IDM system is accurate.

Home Depot doesn’t independently audit that information, and Tricam warranted that its marketing materials were accurate, including specifically ANSI statements. Deposition testimony unsurprisingly confirmed that Tricam expected and intended that the information it entered would appear on Home Depot’s website and that customers would use it for comparison when ladder-shopping.

Tricam monitors Home Depot pages for Tricam ladders; it can request content changes by submitting a ticket in the IDM system. It considered doing so after this lawsuit was filed, when it removed the ANSI-certification language from its own website, but didn’t, “in part because it wanted customers to be able to differentiate its products from other articulated ladders on Home Depot’s site.”

The court found no previous authority addressing “whether and when a supplier’s Lanham Act liability is cut off after the supplier passes on an allegedly false statement to a retailer expecting and intending that the statement will reach the purchasing public.” Tricam made the novel but too clever by half argument that it could only be contributorily liable, and Home Depot was not alleged to be primarily liable (and Wing might lack standing against Home Depot).

I would have rejected this claimwashing attempt out of hand given the evidence of both intent and effect—the claim reached the consumer just as if Tricam had paid the transit authority to put posters up on buses—but the court was more sympathetic. Wing pointed out that false advertising precedent indicates that retailers can’t be liable for statements from manufacturers, which indicates that the manufacturers are the appropriate target for primary liability, but the court thought that was irrelevant to whether Tricam could be liable, apparently comfortable with the idea that nobody could be liable for a false ad. The court reasoned that because it’s possible that both manufacturer and retailer could be liable, authorities that retailers weren’t liable for transmitting false advertising to consumers didn’t bear on whether manufacturers were liable. This seems to me like a logic error.

The court found that, with reference to the language of the Lanham Act, which requires “use” of a false statement in commerce, the relevant question was “whether the business has ceded so much control that it is no longer ‘using’ the ad.” [Even under the court’s own terms, the issue should be whether the business is controlling the statement at issue. Extensive editorial control by the publisher over the format or other non-false portions of the ad should be irrelevant.]

The court held that there was a genuine dispute of material fact over “whether the degree of control Home Depot exercised over its website means that Tricam did not ‘use’ the online ANSI-certification statement in commerce”:

The evidence that Home Depot could change the content on its webpage without notifying Tricam could suggest that Tricam effectively surrendered control over the allegedly false content. But there is also evidence that Home Depot relies on its vendors to enter accurate information in the system without independently auditing that information; that Tricam expected and intended that customers would use the information it entered into the IDM system to make purchasing decisions; and that Tricam could request changes to the information after it was posted on the website.

I don’t understand how Home Depot’s “potential” control could allow a reasonable jury to conclude that Tricam didn’t “use” this information.

Anyway, a reasonable jury could also find literal falsity. Literal falsity requires a clear answer to the question “what message is being conveyed?” because “[o]nly an unambiguous message can be literally false.” Is this a question of fact or of law? The Eighth Circuit cases are not clear, with at least one case treating it as a factual question by applying the clearly erroneous standard of review to an appeal of a preliminary injunction, and another stating that “[a] literally false statement can be determined as a matter of law, but whether a statement is misleading is considered a matter of fact.” The majority approach in district courts and other circuits is to treat what message is being conveyed as a question of fact, like the question of whether that message is false. The court found that the better approach was that potential ambiguity is a question of fact; the former Eighth Circuit case was decided first and the weight of authority was on this side.

Again, the court gives weight to what I would have dismissed as mere chutzpah: Tricam argued that the only reasonable reading of its statements was that its ladders were tested for ANSI compliance, not that they passed, and they undisputedly were tested. This was a genuine dispute over what it means to “certify” ANSI conformance or to claim an ANSI “certification.” Although Tricam thus posited competing meanings, there would only be ambiguity if there were multiple “reasonable” interpretations of the advertisement, and a jury could find that all reasonable interpretations were just different ways of saying the same thing: ANSI conformance.

Actual deception: The Eighth Circuit has held that once a plaintiff has proved that a statement is literally false, “the court may presume that consumers were misled ... without requiring consumer surveys or other evidence of the ad’s impact on the buying public.” Tricam argued that this rule only applied to comparative statements, but cases saying this are talking about presumptions of harm to the plaintiff/irreparable injury, not presumptions of consumer deception.

Injury: “Relying primarily on cases involving money damages, Tricam asserts that the record lacks evidence to support Wing’s claimed injuries—diversion of sales, price erosion, and loss of business opportunities—and that Wing has not adequately tied those injuries to Tricam’s statements, as opposed to other market factors.” But the nature of a plaintiff’s burden on the injury-and-causation element depends on the type of remedy that it seeks. There’s no presumption of causation when the parties compete directly, though courts will presume injury and causation “in comparative advertising cases where money damages are sought and where there exists proof of willful deception.” The plaintiff’s burden is highest when it seems money damages, and lower (now of course presumptive) when it seeks injunctive relief. Given the congressional policy in favor of protecting consumer rights, “courts are not and should not be reluctant to allow a commercial plaintiff to obtain an injunction even where the likelihood of provable impact on the plaintiff may be subtle and slight.”

Important move: “The burden is similarly low when a plaintiff seeks the equitable remedy of disgorgement of profits. That is because, rather than aiming to compensate the plaintiff for specific, identifiable losses, this remedy ‘exists to deter would-be infringers and to safeguard against unjust enrichment.’” Once a plaintiff has shown the likely harm necessary to establish an underlying Lanham Act violation—and remember, a plaintiff also seeking injunctive relief now gets a presumption of irreparable harm, so courts now have to decide whether that counts— the plaintiff must “prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed.” Willfulness, while a relevant factor, is not an “inflexible precondition to recovery” of profits under the Lanham Act—the court quoted McCarthy for the proposition that Romag should also apply to false advertising claims.

Wing seeks injunctive relief and disgorgement, and thus “does not need to meet the heightened injury-and-causation burden that applies when a plaintiff seeks money damages.” Although Wing didn’t provide sufficient evidence of its alleged lost opportunity to sell ladders in Home Depot stores, it created a genuine issue of material fact on lost sales/market share and price erosion. (It didn’t show lost opportunity to sell ladders because the evidence showed a previous falling out between Wing and Home Depot leading Home Depot to blacklist Wing. Even though this dispute provided Tricam “an opportunity to get back into the business” of multi-position ladders, and even though Wing eventually returned to Home Depot with some other products, Home Depot’s former ladder merchant declined to speculate about whether she would have invited Wing back into Home Depot’s retail stores if Tricam had not represented itself as conforming to ANSI A14.2, saying only that she “would probably reach internal, to existing suppliers, before [she] reached external, to new suppliers.” Under these circumstances, including the fact that Home Depot merely accepted Tricam’s offer rather than conducting a search for a new supplier, the causal chain was too speculative.)

Sales/market share: Wing argued that Tricam could not have entered the market if it had not represented that its ladders conformed to the ANSI standard, and that such ANSI-certification statements made customers more likely to purchase Tricam’s ladders than Wing’s. There was a close but triable issue of fact. The parties were in direct competition, including on Home Depot’s website, and Tricam sold over 565,000 ladders in the first year and a half that they were on the market. “The combination of the competitive relationship between the two companies and the volume of Tricam’s sales led Wing’s expert … to conclude that the introduction of Tricam’s ladders cost Wing sales and market share.” Add to that testimony that Home Depot likely would not have continued selling Tricam’s ladders if it had attempted to change its ANSI-compliance statements and the evidence of materiality accepted by the Federal Circuit, and you get a triable issue.

There was evidence in the record pointing the other way; Wing had higher sales on the Home Depot website than projected, and, after Tricam’s ladders had entered the market, Wing obtained a substantial new line of business by selling its ladders at Lowe’s. But Wing does not need to identify “specific damage,” and the jury should resolve the question.

So too with Wing’s evidence of price erosion:

[A] reasonable juror could find that Tricam’s false ANSI-compliance statements allowed it to enter and remain in the market by selling its ladders at Home Depot. Once in the market, Tricam consistently charged a lower price than Wing for its ladders. One of the reasons Tricam was able to do this was that the crimped design of its ladder rungs—the source of the dispute over ANSI compliance in this case—made its ladders cheaper to manufacture.… And this led several of Wing’s retail partners, particularly Lowe’s, to repeatedly pressure Wing to lower its prices to compete with Tricam. On one occasion, Wing agreed, at the urging of Lowe’s, to a 27% promotional discount on 75,000 ladders in order to compete with Tricam, and the “[e]very day” price of Wing’s ladders “[e]asily” dropped by $40 or $50.

The court cautioned that, while Wing was entitled to go to the jury, “there is no guarantee that Wing will ultimately be able to obtain the monetary relief—disgorgement of profits—that it seeks,” given courts’ broad discretion under the principles of equity. The Eighth Circuit recently suggested that disgorgement is only appropriate in “exceptional” cases. (Does that survive Romag?) Given the new presumption of irreparable injury, however, and the possibility that ANSI certification is necessary in this market, an injunction alone might be worthwhile for Wing.

mistaken exclusion of materiality survey leads to remand in false advertising case

Wing Enters., Inc. v. Tricam Indus., Inc., --- Fed.Appx. ----, 2020 WL 5739718, 2019-2279 (Fed. Cir. Sept. 25, 2020)

A remand because the district court wrongly excluded one survey in this false advertising case (though didn’t abuse its discretion in excluding another), then granted defendant’s motion for summary judgment.

Wing and Tricam compete in the market for multi-position ladders. Wing alleged that Tricam violated the Lanham Act and the coordinate Minnesota Deceptive Trade Practices Act by falsely advertising that its ladders complied with ANSI A14.2, an industry safety standard that applies to metal multi-position ladders. Wing alleged that Tricam’s ladders flunked the requirement that the rung on a multi-position ladder have a “step surface of not less than 1 inch.” Tricam’s allegedly false advertising appeared on: (1) the label on the side of Tricam’s ladders, which reads “manufacturer certifies conformance to OSHA ANSI A14.2 code for metal ladders,” (2) a statement on The Home Depot’s website, which reads “ANSI Certified, OSHA Compliant,” and (3) a statement on Tricam’s website, which reads “ANSI A14.2; OSHA.”

False advertising requires materiality, which frankly I would think a jury could infer from the fact that it’s an industry safety standard, but Wing had Hal Poret conduct two surveys.

The Importance Survey asked respondents to rank the factors they consider important when purchasing a ladder. The survey provided respondents with a list of factors, which included “strength/duty rating,” “compliance with industry safety standards,” “hinge lock size/style,” “feet material/style,” and “company name.” According to Mr. Poret, the survey results showed that “compliance with industry safety standards was ranked first as the most important factor by more respondents (19%) than any other factor except for strength/duty rating” and that a “total of 58% of respondents rated compliance with industry safety standards an important factor.” From these results, Mr. Poret concluded that “compliance with industry safety standards is the type of issue that is important to consumers and would tend to ... impact purchase decisions.”

The Labeling Survey showed a test group the side labeling of a Gorilla Ladder containing the allegedly false ANSI statement as well as a statement about OSHA compliance. A control group saw “an altered version” of the labeling in which “all references to compliance with OSHA/ANSI standards were removed.” While 69% of the test group members indicated that they were “extremely or very likely to purchase the ladder with the OSHA/ANSI content present,” only 55% of the control group did so, leading Poret to find “a significant impact on reported likelihood of purchase.”

Tricam’s surveyor, by contrast, concluded that “only 2% of the ... respondents [in her survey] could have potentially been influenced by the ANSI label,” though 67.5% of survey respondents “stated they had read the side label before buying the ladder,” 42.4% of the respondents had heard of ANSI, and 21.9% of the respondents clearly knew what ANSI was. Tricam’s surveyor Triese also criticized Poret’s work for failing to “isolate the effect, if any, of the ANSI” statement on consumers, focusing instead on the effect of an ANSI-OSHA statement or on industry safety standards in general.

In apparent response to this criticism, Wing sought to add OSHA compliance-related contentions, which the magistrate struck as untimely. Based on that, the district court excluded Poret’s testimony about the surveys, reasoning that they were “not relevant to the question of whether the ANSI-conformance statement that is at issue in this case is material to consumers’ purchasing decisions.” It reasoned that “[k]nowing that industry safety standards in general are important to consumers’ purchasing decisions does nothing to predict whether consumers might be dissuaded from buying a ladder that does not meet current ANSI standards” because Mr. Poret did not “ask about ANSI specifically.” Also, the surveys tested ANSI conformance in combination with OSHA conformance, so they weren’t relevant. [This is part of a trend of hyperspecificity in materiality requirements, which I think is generally a very bad idea as well as inconsistent with the historical treatment of materiality as “the kind of thing consumers care about.” Among other things, consumers aren’t great at telling you exactly why they do what they do, so demands for super-specificity can lead to lots of false negatives. If falsity/misleadingness is established, then in general we shouldn’t take the risk of allowing consumer harm unless there’s very good reason to think that the difference between the advertising and the truth wouldn’t matter to consumers.]

In addition, the court excluded the Labeling Survey because it would confuse the jury, being premised “on the conclusion that the OSHA-conformance statement is false,” and Tricam had lacked an opportunity to take meaningful discovery on the interplay between ANSI and OSHA.

Without the survey, the district court found there was insufficient evidence of materiality—testimony from a high-level Wing executive, Tricam’s president, and the chairman of the ANSI Labeling Committee was “too speculative.”

“Because Mr. Poret’s testimony concerning the Importance Survey would have at least some tendency to make a fact of consequence more probable than it would be without the evidence, and because such testimony is not so unsupported that it would offer no help to the jury, we determine that the district court abused its discretion in excluding Mr. Poret from testifying about the Importance Survey.” Even if it doesn’t mention ANSI, “ANSI is unquestionably an industry safety standard and is one of the two potential industry safety standards relating to ladders in the United States.” Asking about safety standards in general wasn’t irrelevant. Other courts have accepted materiality surveys as relevant even when the surveys didn’t ask about “the particular statement or product at issue.” Note: As well they should! Tricam also argued that the survey didn’t show that consumers know that ANSI is an industry safety standard. “This argument seems aimed more at the weight that the Importance Survey’s results should be accorded than whether the survey is relevant. Still, as the district court determined, ladder consumers could potentially ascertain that ANSI is an industry safety standard based on how Tricam displayed ANSI conformance.” Also, Tricam’s own survey results suggested that consumers know that ANSI is an industry safety standard, and it was ok to rely on the opposing party’s survey results for that proposition.

However, the district court didn’t abuse its discretion in excluding the Labeling Survey, because compliance with OSHA wasn’t part of the case and that was too intertwined with this survey, such that the jury would be confused. Wing argued that the jury could be instructed that the survey was only submitted for the materiality of the ANSI label, but the survey was still premised on the conclusion that the OSHA-conformance statement was false; Poret concluded that the survey showed that the “OSHA/ANSI content did have a significant impact on reported likelihood of purchase” (emphasis added). Tricam never had reason to explore in discovery the relationship between OSHA and ANSI on which the survey was premised.

With the one survey in, there was enough to survive summary judgment. That survey “suggests that consumers consider compliance with industry safety standards an important consideration when making a purchasing decision.” Consumers could know that, as Tricam’s survey suggested.  Result: remand, which could consider some other unsettled legal arguments.

 

When © trips courts up: Lack of access to standards makes false ad claim impossible to resolve

Wing Enterprises, Inc. v. Tricam Industries, Inc., 2019 WL 2994465, No. 17-cv-1769 (ECT/ECW) (D. Minn. Jul. 9, 2019)

This false advertising case about multi-position ladders turns out to involve an important copyright issue that the Supreme Court has taken up: when a standard is incorporated into law, should it be readily accessible to the public? Because an older ANSI standard incorporated into OSHA isn’t available to the court, the court can’t resolve whether failure to meet the current ANSI standard also violates OSHA. This matters because the defendant advertised ANSI/OSHA compliance, but plaintiff’s evidence went to whether there was compliance with current ANSI.

The thrust of the federal and state false advertising claims claims is that Tricam represented that its Gorilla Ladders comply with ANSI ASC A14.2, a voluntary industry standard for portable metal ladders that was developed by the American Ladder Institute, but in fact the rungs of its ladders are not sufficiently deep all the way across to satisfy that standard as Wing understands it.  The label affixed to each ladder has an oval icon that says: “manufacturer certifies conformance to OSHA ANSI A14.2 code for metal ladders” and there were similar representations elsewhere.

The court admitted one expert on ANSI conformance and excluded an expert report on materiality, the latter because of the access-to-code problem.  Wing’s survey expert, Hal Poret, conducted materiality surveys: a labeling survey, intended to measure consumer reaction to the allegedly false statement on the label, and an importance survey, intended to assess the importance to consumers of compliance with industry safety standards in general. First, the court rejected the argument that the labeling survey was unreliable because it failed to replicate market conditions; it highlighted the label and demanded consumers spend a certain amount of time looking at it, which might not happen on the retail floor.  “These might be fair points if the survey had been intended to test what message the statements conveyed (as relevant to the falsity element), or whether consumer confusion existed in a trademark case.” But for a materiality study, how the consumers would see the image in the store didn’t affect its relevance, although a jury could weigh divergence from the retail context in its considerations.

The real problem is that Poret’s surveys tested ANSI and OSHA conformance together by eliminating the entire challenged label (and his importance survey referred only to conformance to unspecified “industry safety standards,” not specifically to ANSI); Wing didn’t show that either a combined OSHA/ANSI statement or industry safety standards writ large was relevant to the issues a jury would need to decide in this litigation.

Wing argued that OSHA uses ANSI standards, so that a violation of ANSI is necessarily a violation of OSHA.  And here’s where the access part comes in.  OSHA regulations provide that mandatory provisions (“shall” provisions) of standards incorporated by reference are adopted as mandatory under OSHA and “have the same force and effect” whether they are issued by federal agencies or by nongovernmental organizations. Here, OSHA regulations incorporate by reference “ANSI A14.2-56 Safety Code for Portable Metal Ladders, Supplemented by ANSI A14.2a-77.”

Those last two digits are apparently pre-2000 year codes.  Wing didn’t identify how -56 and -77 differed/overlapped with the 2007 version of ANSI A14.2 the parties were apparently working from in this case.  OSHA regulations, in fact, incorporate by reference different versions of ANSI A14.2. “For example, one regulation that pertains to the construction industry incorporates the 1982 version; another, pertaining to shipyards, incorporates the 1972 version; and others, relating to marine terminals and longshoring, incorporate the 1990 version.”  Wing didn’t confirm whether there was any relevant variation, and “[e]ven if the Court were inclined to do that legwork on Wing’s behalf, the Court cannot independently verify the extent to which the 1956 version explicitly mentioned in the regulations overlaps, if at all, with the 2007 version before the Court by referencing publicly available sources because the ANSI standards are not reproduced in the Code of Federal Regulations and are instead behind a paywall or available for in-person review in another state.” [Apparently the “state” is DC, at the National Archives.]  Testimony from Tricam witnesses was not sufficient to reach the legal conclusion that failure to meet the current ANSI standard, in the manner identified, would also be failure to meet the older standards that actually have the force of law.

Because Poret’s label survey was premised on the assumption that ANSI falsity meant OSHA falsity, it couldn’t test ANSI falsity alone and was not admissible. Likewise, his importance survey tested “[c]ompliance with industry safety standards” in general, but given the multiple sources of industry safety standards and the evidence in this case, that wasn’t relevant—“What happens if, as contemplated above, a ladder that fails to conform to the 2007 version of ANSI nonetheless does meet the requirements of one or more OSHA regulations that incorporate an older version of that standard?”

Without the survey, Wing couldn’t show materiality and summary judgment was warranted. It argued that it could show materiality by showing that “the false or misleading statement relates to an ‘inherent quality or characteristic’ of the product,” and that “questions of safety and efficacy are likely to satisfy automatically the materiality prong.” But the Eighth Circuit has not endorsed the “inherent quality or characteristic” method of showing materiality. And here, without further evidence on ANSI variation, “the most Wing could show is a technical noncompliance with one of multiple potentially applicable safety standards. That is not a compelling context in which to adopt a new approach to showing materiality.”

Nor was the following adequate: (1) testimony from a high-level Wing executive that, in his opinion, compliance statements on Home Depot’s website are “important, otherwise, I don’t believe Home Depot would put it on the website,” (2) testimony by Tricam’s president that an ANSI-certification statement on Home Depot’s website “could be” helpful in differentiating Tricam’s products from hypothetical competing ladders that do not purport to conform to ANSI, and suggesting that an ANSI-certification statement on the product label might be something a professional might want for purposes of OSHA inspections of a job site, and (3) testimony from the chairman of the ANSI labeling committee that “[i]t’s possible” that an ANSI-compliance statement would help a consumer choose a ladder. But these statements were all speculative on their face, and in each case the testimony was qualified by reference to the speaker’s lack of direct knowledge about consumer behavior.