In dirty diaper-pail fight, Munchkin loses appeal
By Amanda Bronstad, From The National Law Journal
It stinks to be No. 2—that’s why two leading diaper pail makers have spent years wrangling in court over who’s No. 1 at keeping odor out.
The U.S. Court of Appeals for the Ninth Circuit on Monday struck down Munchkin Inc.’s attempts to revive a $13.5 million false advertising verdict against Playtex Products LLC, maker of the Diaper Genie.
Munchkin attorney R. Cameron Garrison, a partner at Kansas City, Mo.’s Lathrop & Gage, said his client was evaluating its options, including whether to petition an en banc panel of the Ninth Circuit to review the ruling.
He wrote in an email that the jury heard evidence showing “that Playtex continued to tell consumers its Diaper Genie pails were #1 in odor control despite multiple internal Playtex tests revealing that claim to be false.”
The dispute is one of several involving the makers of diaper pails, which are depositories for dirty diapers. Long dominated by the Diaper Genie, the market now involves several competitors, some of which have gone to court over advertising claims.
Los Angeles-based Muchkin, which sells the Munchkin Arm & Hammer Diaper Pail, sued in 2011 after Playtex began challenging statements that its diaper pail was “The New #1 in Odor Control” and, citing laboratory tests, better than the Diaper Genie II and Diaper Genie II Elite. Munchkin sought to stop many of Playtex’s claims, including that the Diaper Genie II and Diaper Genie II Elite were “Proven #1 in Odor Control.”
In court, Playtex countersued, challenging Munchkin’s “New #1” statement, which appeared on the product’s packaging.
In 2012, a federal jury awarded nearly $13.5 million to Munchkin after finding that Playtex had engaged in false advertising as to two claims, including its “Proven # 1 in Odor Control” statement on the Diaper Genie II Elite box.
The jury awarded nothing to Playtex, which is based in Shelton, Conn.
After the verdict, Playtex, represented by Seattle’s Davis Wright Tremaine, brought in a new team from Los Angeles-based Gibson, Dunn & Crutcher. In a motion for new trial, they challenged an instruction that allowed the jury to presume injury, even though neither advertising claim explicitly compared the product to Munchkin’s.
U.S. District Judge A. Howard Matz granted the motion after concluding that the claims weren’t comparative and that both companies, although dominant, weren’t the only players in the market at the time.
He later called the case an “overblown dispute” after it failed to settle before he retired.
U.S. District Judge Otis Wright, faced with a retrial, ruled in 2013 that Munchkin couldn’t introduce theories that would have boosted its potential damages to more than $100 million.
“At that point, Munchkin found itself without any damages evidence,” said Richard Doren, a partner at Gibson Dunn who represents Playtex.
In its decision, the Ninth Circuit upheld the rulings on damages.
Munchkin’s attorney, Garrison, declined to address the damages issue. But he noted that the Ninth Circuit’s decision also means the jury’s finding against Playtex stands.
“Thanks to that jury, the Arm & Hammer Diaper Pail by Munchkin continues to proudly carry its Proven #1 in Odor Control advertising claim to this day,” he wrote.
