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Extreme Sports Divas, LLC v. Polartec, LLC

United States District Court, W.D. Wisconsin

April 25, 2018

POLARTEC, LLC, Defendant.

          OPINION & ORDER


         Plaintiff Extreme Sports Divas, LLC, (ESD) designs and sells women's clothing for snowmobiling. For a new line of outerwear, ESD used defendant Polartec, LLC's NeoShell fabric, which Polartec marketed as “waterproof to 10, 000 mm.” ESD alleges that the NeoShell fabric was not as waterproof as Polartec represented it to be, leaving ESD with useless merchandise and a damaged reputation. ESD asserts claims against Polartec for violations of Wisconsin's Deceptive Trade Practices Act (DTPA), Wis.Stat. § 100.18, and violations of the Lanham Act, 15 U.S.C. § 1125(a).

         Polartec now moves for summary judgment on several grounds. Dkt. 32. ESD has not adduced evidence to show that Polartec misrepresented the waterproof qualities of its NeoShell fabric, so the court will grant summary judgment in Polartec's favor on both claims.


         The court begins by noting deficiencies in ESD's summary judgment response. ESD purports to dispute many of Polartec's proposed facts by stating that “discovery is ongoing and Plaintiff has not yet had an opportunity to depose Defendant's representative as to this issue.” See, e.g., Dkt. 50, ¶ 23. This is not a valid basis to dispute a proposed fact. As the court explained in its preliminary pretrial conference order, “[p]arties are to undertake discovery in a manner that allows them to make or respond to dispositive motions within the scheduled deadlines.” Dkt. 11, at 3. And the court “will conclude that a proposed fact is undisputed unless the responding party explicitly disputes it and either identifies contradictory evidence in the record, or demonstrates that the proponent of the fact does not have admissible evidence to support it.” Id. at 10. So any fact proposed by Polartec that is opposed only on the basis that discovery is ongoing will be deemed to be undisputed.

         The following facts are undisputed except where noted.

         Polartec manufactures fabric. In 2010, it introduced its NeoShell fabric, which it markets as breathable and waterproof to 10, 000 mm. Its technical information sheet specifies that NeoShell fabric obtains a minimum 10, 000 mm waterproof rating when tested against a mesh restraint according to the American Association of Textile Chemists & Colorists' Water Resistance: Hydrostatic Pressure Test, also known as AATCC Test Method 127.

         “AATCC Test Method 127 is a common standard used in the fabric industry for measuring waterproofing capabilities.” Dkt. 50, ¶ 9. The test procedure involves applying hydrostatic pressure (that is, water pressure) to one side of a fabric specimen and steadily increasing the pressure until three droplets appear on the opposite side of the fabric. “[A]t the moment water droplets penetrate the fabric in three different places, ” the hydrostatic pressure is recorded. Dkt. 34-1, at 3. The pressure can be recorded in millimeters of water or millibars (a unit of pressure abbreviated as “mbar”)-10, 200 mm of water exerts 1, 000 mbar. This procedure is repeated on at least two other specimens of the fabric sample, and the results are then averaged. The final report should list the method used and the “[r]esults for each specimen and the average for each sample.” Id. at 4. The AATCC acknowledges that the “results are tester dependent.” Id.

         Polartec tests samples of each batch of NeoShell fabric to confirm that they meet the 10, 000 mm waterproof rating before releasing them for sale. Polartec will release a batch for sale if it meets, exceeds, or falls below but “does not reflect a significant departure from” the 10, 000 mm minimum listed in the technical information sheet. Dkt. 50, ¶ 125. Polartec tested 68 batches of NeoShell fabric between December 7, 2012, and February 7, 2017; all but four had average results that met or exceeded the 10, 000 mm minimum. Polartec sold three batches of NeoShell fabric to ESD. Two of those batches had an average test result of 20, 000 mm; the third tested at 17, 960 mm. See Dkt. 33-8.

         ESD used the NeoShell fabric to manufacture garments in its Avid 2.0 line of outerwear. It performed in-house testing on some of the sample garments; these test results also met or exceeded the 10, 000 mm minimum. But after ESD began selling the Avid 2.0 line, some customers complained that they were getting wet while wearing Avid 2.0 garments.

         In response, ESD sent samples of its Avid 2.0 garments to a third-party tester, SGS North America, Inc. In April 2016, SGS tested six sample garments using AATCC Test Method 127, although without the mesh restraint listed in Polartec's technical information sheet. It reported the results in millibars:


Jacket Now Pink

Pant New Pink

Jacket new Blue

Pant New Blue

Pant Used Pink

Pant Used Blue
































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