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Heary Bros Lighting Protection Co. Inc. v. Natl Fire Protection Equipment Inc.

United States District Court, D. Arizona

February 13, 2019

Heary Bros. Lightning Protection Company Incorporated, et al., Plaintiffs,
v.
East Coast Lightning Equipment Incorporated, Defendant.

          ORDER

          Douglas L. Rayes, United States District Judge.

         Defendant 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.[1] (Doc. 478.) The motion is fully briefed.[2] (Docs. 487, 488.) For the reasons below, East Coast's motion is granted.

         I. Background

         Manufacturers 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).

         In 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.)

         In 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;[3] 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 protection; and
(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 (“NEC”);
(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 fields.

(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).

         The 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 ...


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