84 F.R.D. 682 (D.Mass. 1980), C. A. 71-481-J, Bose Corp. v. Consumers Union of U.S., Inc.

Docket Nº:Civ. A. 71-481-J.
Citation:84 F.R.D. 682
Opinion Judge:JULIAN, Senior District Judge.
Party Name:BOSE CORPORATION, Plaintiff, v. CONSUMERS UNION OF U.S. INC., Defendant.
Attorney:Blair L. Perry, Hale & Dorr, Boston, Mass., for Bose Corp. Michael N. Pollet, Marshall Beil, Karpatkin, Pollet & LeMoult, New York City; Nancy Gertner, Silverglate, Shapiro & Gertner, Boston, Mass., for Consumers Union of U.S., Inc.
Case Date:January 08, 1980
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 682

84 F.R.D. 682 (D.Mass. 1980)

BOSE CORPORATION, Plaintiff,

v.

CONSUMERS UNION OF U.S. INC., Defendant.

Civ. A. No. 71-481-J.

United States District Court, D. Massachusetts.

January 8, 1980

Manufacturer of loudspeaker sued publisher of magazine which rated consumer goods seeking damages for alleged product disparagement, unfair competition and violation of the Lanham Act. On the publisher's motion for summary judgment, the District Court, Julian, Senior District Judge, held that issues of material fact existed, precluding summary judgment.

Motion denied.

Blair L. Perry, Hale & Dorr, Boston, Mass., for Bose Corp.

Michael N. Pollet, Marshall Beil, Karpatkin, Pollet & LeMoult, New York City; Nancy Gertner, Silverglate, Shapiro & Gertner, Boston, Mass., for Consumers Union of U.S., Inc.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JULIAN, Senior District Judge.

This is an action brought by the plaintiff, Bose Corporation, against the defendant, Consumers Union of U.S. Inc. seeking damages for alleged product disparagement, unfair competition, and violation of Section 43(a) of the Lanham Act, 15 U.S.C. s 1125(a). The plaintiff alleges that it was harmed by false statements contained in an article published in the defendant's publication, " Consumer Reports."

The defendant's motion for summary judgment and the affidavits and memoranda offered in its support 1 were filed on September 26, 1979. As grounds for its motion the defendant states that the actual

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malice standard announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), is applicable in this case and that the plaintiff cannot establish that the statements published by the defendant were made with either actual or common law malice. The defendant also states that the plaintiff cannot establish that the statements published by the defendant were false statements of fact rather than statements of opinion.

The plaintiff's opposition to the defendant's motion for summary judgment and the documents offered in support of the opposition 2 were filed on October 4, 1979. The plaintiff contends that there is clear and convincing evidence to support a finding that the defendant published false statements of fact about the Bose 901 loudspeaker with knowledge that the statements were false or with reckless disregard for the truth or falsity of the statements.

Under Fed.R.Civ.P. 56, the Court may grant a motion for summary judgment only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file show 1) that there is no genuine issue as to any material fact, and 2) that the moving party is entitled to judgment as a matter of law. In making these determinations the Court must view the record in the light most favorable to the party opposing the motion and indulge all inferences favorable to that party. Hahn v. Sargent, 523 F.2d 461, 464, (1st Cir. 1975), Cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976). After a thorough examination of all the relevant documents 3 filed in this case, the Court has concluded that there are material facts as to which there is a genuine issue and that the defendant's motion for summary judgment must therefore be denied. The facts as to which there is a genuine issue include, but are not limited to, the two following questions:

1) Whether the statements published by the defendant in its Consumer Reports article about the Bose 901 loudspeaker were false or were based on underlying facts which were false;

2) Whether the defendant published the statements contained in its Consumer Reports article about the Bose 901 loudspeaker with knowledge that the statements were false or with reckless disregard for the truth or falsity of the statements.

Whether the Defendant's Statements Were False

In its Consumer Reports article reviewing the Bose 901 loudspeaker, the defendant stated that when a panel of listeners heard records played through the Bose 901 loudspeaker system " individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to

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wander about the room." The affidavit of the president of Bose Corporation, Amar G. Bose, which was submitted in support of the plaintiff's opposition to the motion for summary judgment, states that the phenomenon of widened and wandering instruments described in the defendant's article is a scientific impossibility. (Affidavit of Amar G. Bose, dated October 3, 1979 (hereinafter Bose Affidavit) at p. 4). Dr. Bose received a Doctor of Science degree in electrical engineering from the Massachusetts Institute of Technology (M.I.T.) in 1956. He has been a member of the faculty of M.I.T. since 1956 and has taught courses in acoustics there since 1967. The defendant concedes for the purposes of this action that Dr. Bose qualifies under the Federal Rules of Evidence as an expert in the field of loudspeaker design. (Bose Affidavit at p. 1, Defendant's Responses To Plaintiff's Second Request For Admissions at p. 4). The affidavit of Arnold L. Seligson, submitted in support of the defendant's motion for summary judgment, states that " Consumers Union reported accurately and faithfully to our readers what we heard in our tests" and that " I know what I heard . . . " (Affidavit of Arnold L. Seligson dated September 25, 1979 (hereinafter Seligson Affidavit) at p. 17). Seligson is Chief of the Electronics Division of Consumers Union and was primarily responsible for conducting and supervising the loudspeaker tests which were the basis of the Consumer Reports article about which the plaintiff complains. (Seligson Affidavit at p. 1).

Whether Seligson, as a panelist in the test of the Bose 901 loudspeaker, actually heard instruments grow to gigantic proportions or wander about the room is a question of fact, not opinion, which must be resolved at trial rather than on a motion for summary judgment. The credibility of the witnesses involved, Dr. Bose and Mr. Seligson, must be assessed before resolving such a factual question.

The defendant's article reviewing the Bose 901 loudspeaker also states, " If you do consider buying the system, note well this fact: The Bose requires a rather gigantic amount of power. CU recommends you have an amplifier of 50 watts per channel for the deepest bass response." In his deposition Seligson explained how he arrived at the conclusion that the Bose 901 loudspeaker required a " gigantic" amount of amplifier power. (Deposition of Arnold L. Seligson (hereinafter Seligson Deposition) at 196-211). Dr. Bose states in his affidavit that he examined the deposition testimony of Seligson. Dr. Bose also states that if his understanding of Seligson's testimony is correct, Seligson was proceeding on an assumption or theory which was invalid, and that any competent audio engineer would have known that that theory was invalid. (Bose Affidavit at 6-8). Seligson's affidavit states that the Consumer Reports article accurately reflected the defendant's test data and the true state of facts. (Seligson Affidavit at 22). The question thus posed whether the defendant's statement that " The Bose required a rather gigantic amount of power" was false or was based on underlying facts that were false is once again a question of fact as to which there is a genuine issue. The existence of such a factual question precludes summary judgment. Fed.R.Civ.P. 56.

Whether the Defendant's Statements Were Published With Actual Malice

The defendant contends that, even if the statements published by the defendant in the Consumer Reports article were false, the plaintiff cannot establish that the defendant...

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