United States District Court, D. Arizona
Heary Bros. Lightning Protection Company Incorporated, et al., Plaintiffs,
East Coast Lightning Equipment Incorporated, Defendant.
Douglas L. Rayes, United States District Judge.
East Coast Lightning Equipment, Inc. (“East
Coast”) moves for an order compelling compliance with
the injunction in this action, and to reopen the case for
limited discovery into additional violations of the
injunction. (Doc. 478.) The motion is fully
briefed. (Docs. 487, 488.) For the reasons below,
East Coast's motion is granted.
and distributors of lightning protection systems, including
Plaintiff National Lightning Protection Corporation
(“NLPC”), brought this action against industry
trade associations and competitors, asserting violations of
Sherman Act, Lanham Act, and state law in connection with the
trade associations' failure to adopt a standard for Early
Stream Emissions (“ESE”) lightning protection
systems. East Coast, NLPC's competitor, filed a
counterclaim alleging false advertising under § 43(a) of
the Lanham Act, 15 U.S.C. § 1125(a).
October 2003, the Court granted summary judgment in favor of
East Coast on its § 43(a) claims, finding that
NLPC's advertisements were “literally false”
because the tests on which NLPC bases its advertising claims
are not sufficiently reliable to establish that NLPC's
ESE air terminal products provide an enhanced zone of
protection within a specific, measurable radius and
protection against lightning strikes in open spaces. (Doc.
341 at 45-56.)
October 2005, the Court enjoined NLPC and its
“successors, officers, agents, employees, dealers,
distributors, . . . and  all persons, partnerships or
corporations in present or future active concert or
participation” with NLPC from the following:
(1) . . . advertising that [it] sell[s] a lightning
protection system utilizing air terminals that provide a
measurable zone of protection, greater than systems installed
in accordance with NFPA 780; and/or that the system can
function effectively to protect open spaces; and
(2) . . . advertising that [it] sell[s] an “improved,
” “enhanced, ” or “more
efficient” lightning protection system utilizing air
terminals that rely on calculations of an enhanced range of
(3) . . . advertising that any “enhanced” air
terminal system manufactured, marketed, and/or sold by [NLPC]
. . . including but not limited to the [ESE] air terminal
product . . .
(a) is accepted by Underwriters Laboratories
(“UL”) . . . [or] the National Electric Code
(b) has been tested and certified by a private testing lab to
provide a measurable zone of protection greater than systems
installed in conformance with NFPA 780;
(c) is able to protect open areas, including but not limited
to amusement parks, golf courses, stadiums, and playing
(Doc. 391 at 2-3.) The Court's injunction was affirmed on
appeal. Heary Bros. Lightning Protection Co.,
Inc. v. Lightning Prot. Inst., 262 Fed. App'x 815,
817 (9th Cir. 2008).
Court retained jurisdiction over the action to monitor
compliance with the injunction. (Doc. 391 at 4.) In January
2006, East Coast filed a motion to compel compliance, which
was denied. (Docs. 431, 449.) East Coast again filed a motion
to compel compliance in June 2008, which the Court granted,
requiring that NLPC comply with the injunction or ...