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Baumann Farms, LLP v. Yin Wall City, Inc.

United States District Court, E.D. Wisconsin

August 25, 2017

BAUMANN FARMS, LLP a Wisconsin limited liability partnership; GLENN HEIER; and AARON KAISER, Plaintiffs,
v.
YIN WALL CITY, INC., an Illinois corporation; SUT I. FONG; CHEONG SAT O; YIN WALL CITY, DALLAS, INC., a Texas Corporation, Defendants. YIN WALL CITY, INC. (Illinois), YIN WALL CITY, INC. (Texas), and YIN WALL CITY DALLAS, INC., Counterclaim and Third-Party Plaintiffs,
v.
BAUMANN FARMS, LLP; GLENN HEIER; and AARON KAISER, Counterclaim Defendants and GINSENG BOARD OF WISCONSIN, INC.; THOMAS HACK, JOE HEIL and KURT BAUMANN, Third-Party Defendants.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.

         On May 5, 2017, plaintiffs Baumann Farms, LLP, Glenn Heier and Aaron Kaiser moved pursuant to Federal Rule of Civil Procedure 23 to certify this action against defendants Yin Wall City, Inc., Sut I. Fong, Choeng Sat O, Yin Wall City, Inc., and Yin Wall City Dallas, Inc. as a class action. (ECF No. 33.) Baumann asks the court to certify a class defined as:

All individuals and entities engaged in the business of cultivating ginseng in the State of Wisconsin who have registered as ginseng growers with Wisconsin's Department of Agriculture, Trade and Consumer Protection between January 2010 and the date of judgment herein, as mandated by Wis. Stats. § 94.50(2).

(ECF No. 33 at 5.) Under section 94.50(2) of the Wisconsin Statutes and Chapter ATCP 148 of the Wisconsin Administrative Code, anyone growing ginseng in Wisconsin is required to register annually with Wisconsin's Department of Agriculture, Trade and Consumer Protection (DATCP). According to the plaintiffs, in 2017 there are 180 ginseng growers registered with the DATCP. (ECF No. 33 at 2.)

         Plaintiffs are all Wisconsin ginseng growers and would be the class representatives and their lawyer would be class counsel. The defendants oppose the motion.

         The plaintiffs are suing the defendants for a violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Section 43(a) states:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

         The plaintiffs allege that Wisconsin ginseng is of superior quality to ginseng grown elsewhere. They allege that the defendants sold ginseng labeled as having been grown in Wisconsin when, in fact, it had not-most likely, it had been grown in China. (ECF No. 33 at 3-4.) According to the plaintiffs, by passing off ginseng grown in China as having been grown in Wisconsin, the defendants harm Wisconsin ginseng growers in two ways: first, it floods the U.S. market with ginseng root which purports to be grown in Wisconsin, which "depress[es] the price at which ginseng root actually grown in Wisconsin may be sold"; and, second, by selling ginseng root of lesser quality identified as Wisconsin ginseng root, the sales erode the status and desirability of Wisconsin ginseng in the mind of the consuming public, decreasing the market demand for Wisconsin-grown ginseng. (ECF No. 33 at 4-5.)

         Federal Rule of Civil Procedure 23(a) provides that one or more members of a class may sue as representative parties on behalf of all members if:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or ...

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