Case: 1:13-cv-01297 Document #: 37 Filed: 06/26/13 Page 1 of 15 PageID #:187

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROBERT ALMBLAD, ) ) Plaintiff, ) ) v. ) ) SCOTSMAN INDUSTRIES, INC., and ) KEVIN FINK, ) ) Defendants. ) ____________________________________)

Case No. 1:13-cv-01297

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS Plaintiffs response is notable for two key reasons. First, it is notable because Plaintiff concedes, as he must, that he was attempting to convince NSF to modify its sanitation standards to help generate demand for his invention, i.e. to suit his own commercial purpose. Second, it is notable because Plaintiff fails to confront directly the legal arguments that Scotsman and Kevin Fink (collectively, Scotsman) raised in their Motion to Dismiss. Rather than respond directly to those arguments, Plaintiff sets up a series of false, strawman arguments that are easily knocked down, but are not the arguments that Scotsman actually made. In the Motion to Dismiss, Scotsman explained why the three (now, according to Plaintiffs response, apparently two) statements Plaintiff alleged were defamatory in his First Amended Complaint (the FAC) are not actionable. Scotsmans Opening Brief explained that Scotsmans statement about

Plaintiffs misinterpretation of the FDA Food Code is not actionable because expressing different views about the meaning of a model code, rule or regulation is pure, protected opinion. Scotsman also explained in its Opening Brief that statements about anothers motives are not actionable because they are opinions that are not capable of being objectively proven or 1

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disproven. Plaintiff failed to address any of these legal arguments directly. Plaintiff also tries to offer new facts to make out a valid Lanham Act claim, but his new assertions demonstrate only that he was trying to manipulate the NSFs intended purpose setting sanitation standards to create demand for his invention, not that Scotsman was trying to advertise its products. He fails to state a claim under the Lanham Act because he cannot establish his standing to sue and does not adequately plead that Scotsman engaged in commercial advertising or promotion, a required element of his claim. As such, this Motion should be granted. I. PRELIMINARY ISSUES Plaintiff raises two preliminary issues which may be disposed of at the outset. Choice of Law. Plaintiff argues that Illinois, not Florida, law applies. (ECF No. 36 at 2, n. 1.) There are differences between Florida and Illinois defamation law, including in particular the application of the innocent construction rule under Illinois law. Because of those

differences, Defendants informed the Court that it appeared at this point, before all contacts had been determined, that Florida law applies to Plaintiffs defamation claims based upon the Plaintiffs domicile in Florida. (ECF No. 20 at 6, n. 4) A party, however, can waive a choice of law argument, which Plaintiff apparently has done by arguing that Illinois law applies. See Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009). Scotsman believes it is entitled to dismissal of Plaintiffs defamation claim on its Motion to Dismiss, whether Florida or Illinois law applies. Conversion to Summary Judgment. Plaintiff argues that Scotsmans Motion to

Dismiss should be converted to one for summary judgment because Scotsman attached to its Motion the written statement referenced in the FAC as the statement that forms the basis for the Plaintiffs claims. Plaintiff is incorrect. Attaching materials that are referred to in a complaint and that are central to a plaintiffs claim does not convert a motion to dismiss to one for summary judgment. (ECF No. 20 at 3, n.3.) See Lott, 556 F.3d at 567 (affirming dismissal of 2

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defamation claim; defendants submitted, with their Rule 12(b)(6) motions, the book containing the alleged defamatory statements); Burke v. 401 N. Wabash Venture, 714 F.3d 501, 505 (7th Cir. 2013) ([D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to his claim.) (quoting McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006)). That is what Defendants have done here. In paragraph 9 of the FAC, Plaintiff alleges that Scotsman composed a written defamatory statement. He then alleges in paragraph 10 of the FAC that Defendants verbally, by speakerphone and by dissemination of the aforesaid written statement published the aforesaid defamatory statements, committing both libel and slander. Further, Plaintiff acknowledges that the NSF Summary that Scotsman submitted with its Motion to Dismiss contains the written statement referenced in the FAC upon which Plaintiff bases his claims. (ECF No. 36 at 2 and 10.) For that reason, the written statement contained in the NSF Summary is properly considered in connection with the Motion to Dismiss. See Fong v.

Franklin Collection Services, No. 12-C-1666, 2012 WL 3581171 at *3 (N.D. Ill. Aug. 16, 2012) (Darrah, J.) (considering collection letter submitted by defendant). There is no need to consider anything other than Scotsmans written statement, the allegations in the FAC and the new affidavits Plaintiff has attached to his response. Considering that material does not convert the Motion to Dismiss to a motion for summary judgment. See Burke, 714 F.3d at 505. II. THE DEFAMATION CLAIM (COUNT I) SHOULD BE DISMISSED. In its Opening Brief, Scotsman raised three statements that Plaintiff appeared to allege were defamatory. (ECF No. 20 at 6.) Plaintiffs response demonstrates that he does not claim the first statement, about Scotsmans own testing of its own products, is defamatory. (ECF No. 36 at 2.) Plaintiff now asserts only the second and third statements. (Id. (identifying two acts of defamation.)). Scotsman will address only those statements below. 3

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A.

Second Statement: Plaintiff misinterprets the Food Code to serve his commercial purposes. The fact is that our machines do have dustproof barriers within the meaning of the FDA Food Code.

Scotsmans Opening Brief demonstrated that this statement is not defamatory because it is pure opinion. (ECF No. 20 at 7-9.) The interpretation of a model code, law or regulation is non-actionable, pure opinion because such interpretations necessarily involve judgment about how to read and apply the provision at issue. Scotsman offered case authority for this

proposition and showed how the proffered opinion was based entirely on facts that Scotsman disclosed as part of its statement during the NSF Conference: the term dustproof barrier is not defined in the Food Code and the purpose of a dustproof barrier as set forth in Annex 3 of the FDA Food Code, makes it apparent that the barrier is intended to prevent accumulated dust blowing from the condenser compartment into the food zone. (Id.)1 Apart from strawman arguments, Plaintiffs only response is to claim that accusing him of misinterpreting or mischaracterizing the Food Code impugns his professional reputation. (ECF No. 36 at 6-7.) That argument is misplaced for three separate reasons. First, Plaintiff has distorted the common understanding of misinterpretation and mischaracterization by providing the Court with one interpretation of the prefix mis, rather than the actual definition of the words used. The term misinterpret is commonly understood to mean to make an incorrect interpretation; to misunderstand (http://en.wiktionary.org/wiki/misinterpret) or to interpret inaccurately; to explain inaccurately (http://thefreedictionary.com/misinterpret). Similarly, the term, mischaracterize is commonly understood to mean to characterize falsely or mistakenly (http://en.wiktionary.org/wiki/mischaracterization) or to give a false or misleading character to something (www.thefreedictionary.com/mischaracterization). Stating 1 Plaintiff pointedly criticizes Scotsman for supposedly not quoting the statements at issue verbatim in its Opening Brief. (ECF No. 36 at 5.) In fact, Scotsmans Opening Brief quoted those statements, word for word. (ECF No. 20 at 10.) 4

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that Plaintiff proposed an erroneous interpretation that suits his own purpose does not suggest he did anything evil or sinister, as Plaintiff now suggests. 2 If it did, lawyers would be accused of defaming their adversaries on an almost daily basis. Second, the statement in no way impugns Plaintiff in his chosen profession. Scotsmans statement is directed to Plaintiffs legal

interpretation of a model code. But Plaintiff does not and cannot allege that he is either a lawyer or a food safety regulator. He alleges only that he is an inventor. (FAC Count I at 6-7.) Challenging Plaintiffs interpretation of the model FDA Food Code cannot plausibly be considered as impugning his abilities or reputation as an inventor or an engineer. Third,

regardless of whether the statement borders at all on his profession, it is not actionable because it is opinion. See Artunduaga v. University of Chicago Med. Ctr., No. 12-C-8733, 2013 WL

2151685, *5 (N.D. Ill. May 16, 2013) (allegedly defamatory statements about medical residents medical skills not actionable because they were opinions). Plaintiff offers nothing else to explain how Scotsman defamed him by challenging his interpretation of the FDA Food Code. He does not dispute that Scotsman included in the statement at issue the facts on which its opinion was based. (ECF No. 36 at 7.) He does not cite Under Illinois innocent construction rule, any ambiguity in any part of the alleged defamatory statement must be resolved in Scotsmans favor. Even if a statement falls into one of the recognized categories of words that are actionable per se, it will not be found actionable per se if it is reasonably capable of an innocent construction. Bryson v. News Am. Publns, Inc., 174 Ill. 2d 77, 90 (1996). The innocent construction rule requires the court to interpret the alleged defamation in context and give the words and their implications their natural and obvious meanings. Id. If a statement is reasonably capable of a nondefamatory interpretation, given its context, it should be so construed; there is no balancing of reasonable constructions. Dubinsky v. United Airlines Master Exec. Council, 303 Ill. App. 3d 317, 324 (1st Dist. 1999). Put simply, any reasonable, innocent interpretation sounds the death knell to a per se defamation claim. Lott, 556 F.3d at 569. Moreover, for statements that are not defamatory per se, a plaintiff must plead special damages with particularity by itemizing his losses and pleading his actual financial injuries with specificity. See Fed. R. Civ. P. 9(g); Muzikowski v. Paramount Pictures Corp, SFX, 322 F.3d 918, 927 (7th Cir. 2003). Here, Plaintiff has pleaded only general damages. (FAC Count I 11.) Plaintiffs failure to plead his special damages properly requires dismissal. Muzikowski, 322 F.3d at 927 (affirming dismissal of complaints defamation per quod claim).
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a single case to refute the authority that Scotsman provided in support of the Motion to Dismiss. (Id.) Instead, he attacks a straw man an argument Scotsman does not make (that the use of qualifying language such as I believe means the statement is non-actionable opinion.) (Id.) He concludes by misstating the law, asserting without citation that whether a statement is properly considered fact or opinion is a question of fact for the jury. (ECF No. 36 at 7.) That is incorrect. Under both Florida and Illinois law, determining whether a statement is fact or opinion is clearly a question of law for the Court. See Sullivan v. Barrett, 510 So. 2d 982, 983 (Fla. 4th DCA 1987); Moriarty v. Greene, 315 Ill. App. 3d 225, 234 (1st Dist. 2000). B. Third Statement: We appreciate the opportunity to address Mr. Almblads erroneous claims and mischaracterizations that are meant to serve his commercial purposes.

In its Opening Brief, Scotsman demonstrated that this third statement is not defamatory, because Plaintiff admits he was lobbying NSF to serve his commercial purpose. Moreover, courts repeatedly have held that statements attributing conduct to profit motive are not defamatory. And even if the statement somehow could be interpreted to be defamatory (which it cannot), speech about motive is protected under the First Amendment because it is not capable of being objectively proven. 1. The Statement is Not Defamatory In the First Place.

Plaintiffs own affidavit confirms that Scotsmans commercial purpose statement about Plaintiffs motive is true. He admits, One reason for my participation in the debate at NSF was to promote the leasing of my invention. (ECF No. 36-1 at 3.) A statement cannot be defamatory if it is true. Linafelt v. Beverly Enters.-Fla., Inc., 745 So. 2d 386, 389 (Fla. 1st DCA 1999); Voyles v. Sandia Mortg. Corp., 196 Ill. 2d 288, 299-300 (2001). But even if Plaintiff had not admitted his commercial purpose, saying that someones conduct or position is motivated by profit is not defamatory, as a matter of law. Plaintiff asserts 6

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that statements undermining scientific test results as being improperly motivated by commercial and economic gain, on their face, undermine the plaintiffs professional integrity. This is actionable defamation. (ECF No. 36 at 6.) But he offers no legal authority for that assertion. The law is otherwise. In Lott v. Levitt, the authors of the book Freakonomics stated that when other scholars tried to replicate [the plaintiffs] results, they could not do so, and the authors arguably implied that the plaintiffs data may have been faked. The Seventh Circuit held this was not actionable as defamation. Lott, 556 F.3d at 570. Other courts likewise have held that statements attributing a plaintiffs words or actions to a profit motive are not defamatory. In Moriarty v. Greene, 315 Ill.App.3d 225 (1st Dist. 2000), for example, the plaintiff was a licensed clinical psychologist who was hired to counsel a child who had been removed from his adoptive parents after living with them since birth. The defendant wrote columns in the Chicago Tribune criticizing the plaintiff, claiming that the plaintiffs actions were motivated by plaintiffs desire to write a book and profit from it. Id. The court dismissed the complaint, holding that statements about whether the profit-motivated book should be written were nonactionable opinion. Id. at 234. Similarly, in Klein v. Victor, 903 F. Supp. 1327 (E.D. Mo. 1995), the plaintiff, a child therapist and child abuse investigator who was involved in exposing claimed satanic rituals, claimed that the defendant defamed her in her chosen occupation by falsely stating that plaintiff transformed a moral enterprise into a lucrative business enterprise, that [Plaintiff] has made a very profitable business out of the satanic cult scare, and rhetorically asking Are there many more moral crusaders, like [plaintiff], profiting from the satanic cult scare? Id. at 1331-32. The court granted defendants motion to dismiss, holding that the statements simply did not defame

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plaintiff in her profession as a matter of law. Assuming that the statements do imply that plaintiff has a profit motive, the Court fails to see how these statements touch on plaintiffs qualifications or ability to perform her work as a child therapist/investigator. The plain sense of the words used is that plaintiff has made money in pursuing her profession, and this, in itself, is not defamatory. Id. at 1335.3 The same outcome is required here. Plaintiff admits his motive for lobbying NSF was commercial, but a statement that he was motivated by his own commercial interests is not defamatory as a matter of law in any event. 2. The Statement Is Protected By The First Amendment

Even if stating that Plaintiff had a commercial purpose for his actions was somehow defamatory, the statement is protected by the First Amendment. As explained in Scotsmans Opening Brief, statements about a persons motive are not actionable because they are not objectively verifiable and therefore capable of being proven true or false. (ECF No. 20 at 9-12 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) and its progeny and Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995).) Because motive cannot be objectively known or proven, the concern underlying this First Amendment protection is that rendering such statements actionable would have an undue chilling effect on speech. (Id.) 3 Elsewhere in his response, Plaintiff again asserts that Scotsman said that plaintiff was making false claims about his own inventions, and said that Plaintiffs engineering testing about the ice machine contamination was false. (ECF No. 36 at 7.) But as Scotsmans actual statement in the NSF Summary shows, Scotsman never said anything about Plaintiffs invention. (ECF No. 20-1 at 3.) Scotsmans statement included only information about its own testing of its own products. (Id.) Like the plaintiff in Lott, Plaintiff is really arguing that Scotsman called Plaintiff a liar by stating that it reached different testing results than Plaintiff. But, as Lott demonstrates, Plaintiffs assertion cannot give rise to a valid defamation claim. Lott, 556 F.3d at 567, 570 (affirming dismissal where plaintiff argued that if the others were unable to reach the same results as him then the inescapable conclusion is that he fabricated his findings or was too incompetent to reach the right ones.) If the law viewed disagreeing with someones conclusions as actionable defamation, the courts would be flooded with claims. 8

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Plaintiffs responds by misstating Scotsmans argument saying that Scotsman argues that the First Amendment requires proof that the statements were false to be actionable. (ECF No. 36 at 8.) That is not Scotsmans argument, and Plaintiff fails to address the argument Scotsman actually made or any of the cases Scotsman cited. Instead, Plaintiff offers a host of generalizations about defamation law, and attacks points that Scotsman has not made in its Motion to Dismiss. (ECF No. 36 at 8-9 (per se damages and qualified privilege).) When Plaintiff does join issue with Scotsmans argument, he argues that ascrib[ing] a false motive to the plaintiff, i.e., his alleged financial gain is not constitutionally protected. (ECF No. 36 at 9-10.) But plaintiff again fails to offer any legal support for that assertion, and it is not the law. The Seventh Circuit has repeatedly held that statements about a plaintiffs motive are not actionable. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)

(statements about plaintiffs motives for leaving his wife are not actionable because they can never be known for sure (even by [plaintiff]) and anyone is entitled to speculate on a persons motives from the known facts of his behavior) (citing Milkovich); Madison v. Frazier, 539 F.3d 646, 655 (7th Cir. 2008) (authors statements accusing plaintiff of bad faith conduct and attributing plaintiffs motive to political aspirations were not actionable because the statements were vague and unprovable allegations which do not give rise to a defamation claim.).4 The issue discussed at the NSF Conference was one of public concern because it involved public health issues and the proposed modification of NSF standards that are incorporated by 4 See also Greenspan v. Random House, Inc., 859 F. Supp. 2d 206, 224 (D. Mass. 2012) (granting motion to dismiss defamation claim and holding that whether or not this was the plaintiffs motive cannot objectively be proven as true or false. No claim for defamation is stated.); Collins v. Cox Enterprises, Inc., 452 S.E.2d 226, 227 (Ga. Ct. App. 1994) (granting judgment on the pleadings, citing Milkovich, and holding that [Plaintiffs] motive is a matter about which reasonable people might differ. [Defendants] conjecture regarding [plaintiffs] motive cannot be proven as absolutely true or false and therefore is the sort of opinion that is not actionable as libel.) 9

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reference into state and local codes and regulations. (ECF No. 20 at 3, n.2.) Under Milkovich and the other cases Scotsman cited, Scotsmans statements about Plaintiffs motive are protected speech under the First Amendment. (ECF No. 20 at 9-12.) Count I should be dismissed with prejudice. III. THE LANHAM ACT CLAIM (COUNT II) SHOULD BE DISMISSED. Scotsmans Opening Brief has demonstrated that the allegedly false or misleading representations of fact that serve as the basis for Plaintiffs Lanham Act claims which the Plaintiff alleges are the same statements upon which his defamation claims are based were not advertising or commercial promotion within the meaning of the Lanham Act, and that the Plaintiff lacks standing to sue under the Lanham Act because he has not alleged facts that would make him a direct competitor of Scotsman. Plaintiff must allege both elements to state a valid claim for false advertising under Section 43 of the Lanham Act. Plaintiff offers virtually nothing in the way of legal authority to dispute Scotsmans arguments; instead, he now backpedals and tries to offer new facts via affidavit that purport to show that because he was using the NSF teleconference to promote his invention, the teleconference was a promotional event; and that he competes directly with Scotsman because Scotsman sells not only commercial ice machines, but also sells ice machine filters and other accessories. But as shown below, even if the facts asserted in Plaintiffs affidavits are accepted as true, he still fails to state a claim under the Lanham Act. A. The Statements At Issue Did Not Constitute Advertising or Commercial Promotion.

To be actionable as false advertising under Section 43 of the Lanham Act, Scotsmans statements must be deemed to be in commercial advertising or promotion. 15 U.S.C. 1125(a)(1)(B). Plaintiff now seeks to add allegations to his FAC through affidavits attached to 10

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his response to the Motion to Dismiss. But even if the factual statements in those affidavits are accepted as true for purposes of the Motion to Dismiss, Plaintiff still has not stated a claim under the Lanham Act because those affidavits show only that Plaintiff was trying to manipulate the NSF standards setting process to promote his invention. Plaintiffs affidavits do nothing to establish that Scotsmans statements were made in advertising or commercial promotion. Plaintiff admits that NSF is a standard setting organization and that NSF standards address sanitation issues. (ECF No. 36-1 at 3.) Although Plaintiff concedes in his affidavit that he tried to manipulate the NSF process in an attempt to create commercial demand for his invention, this has no bearing on whether Scotsman used the NSF teleconference for the commercial promotion of its products. Plaintiff acknowledges that he hoped to convince NSF to modify or interpret its standards in a manner that would require his invention be used with ice machines. (Id.) But that has nothing to do with the reason that Scotsman participated in the teleconference or made the statements that it made during the teleconference. Each of the statements Plaintiff puts at issue, on their face, were directed at NSFs standard setting and responded to the reasons that Plaintiff had argued to NSF that its standard needed to be modified. Advertising is promotional material disseminated to anonymous recipients. First

Health Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 80304 (7th Cir. 2001). Here, there was no promotional material (or anything else) disseminated by Scotsman to the NSF teleconference attendees; Plaintiff does not contend otherwise. Nor was Scotsman engaged at the NSF teleconference in commercial promotion, which the Seventh Circuit has defined as a systematic communicative endeavor to persuade possible customers to buy the sellers product.

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Neuros Co. Ltd. v. KTurbo, Inc., 698 F.3d 514, 522 (7th Cir. 2012). 5 There was nothing systematic about Scotsmans statements at the NSF teleconference, and Plaintiff has not alleged any facts to indicate that Scotsman disseminated the statements outside the NSF process. Nor has Plaintiff alleged that Scotsman was trying to persuade anyone to buy its equipment during the NSF teleconference. While Plaintiffs affiant6 offers an unsupported personal observation his belief that the NSF standards-setting meetings provide a forum for sellers to promote their sales (ECF No. 36-2 at 7) he does not assert that at the teleconference in question Scotsman was actually promoting its products. (Id.) Moreover, the statements that Plaintiff places at issue show, on their face, that they were not initiated by Scotsman, but were made in response to Plaintiff, after he made claims to the NSF task group about supposed product defects and his interpretation of the model FDA Food Code. At least one court in this District has held that when statements are not initiated by the defendant, but were solicited by another party, they are not commercial advertising or promotion. See Govt. Payment Service, Inc. v. LexisNexis Vitalcheck Network, Inc., No. 12-C-1946, 2012 WL 1952905 at *5 (N.D. Ill. May 29, 2012) (granting summary judgment because defendants statements were sent in response to Cook 5 The Second Circuit has adopted a similar standard: The touchstone of whether a defendants actions may be considered commercial advertising or promotion under the Lanham Act is that the contested representations are part of an organized campaign to penetrate the relevant market. Proof of widespread dissemination within the relevant industry is a normal concomitant of meeting this requirement. Thus, businesses harmed by isolated disparaging statements do not have redress under the Lanham Act. Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002) (cited with approval by the Seventh Circuit in Neuros; summary judgment granted to defendants even though they made 27 statements disparaging plaintiff) (emphasis added). 6 Plaintiffs affiant, John Broadbent, who Plaintiff characterizes in his response simply as an expert in the refrigeration, food service and ice machine industries, was Plaintiffs former business partner at Origin Tech LLC, the entity through which Plaintiff marketed his invention, and on whose behalf Plaintiff appeared at the NSF meeting. (See ECF 20-1 at 1). Broadbent is a former Scotsman employee who left Scotsman to join Origin Tech LLC in January 2011. When he departed Scotsman, litigation ensued over Scotsmans claim that he took with him Scotsmans electronic data without Scotsmans knowledge or authorization. 12

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Countys requests and questions and thus do not amount to commercial advertising and promotion.).7 B. Plaintiffs New Assertions Are Insufficient to Establish Standing.

Scotsman also demonstrated in its opening brief that Plaintiff lacks standing to sue under the Lanham Act, because the allegations of the FAC show that he does not manufacture, sell, or distribute ice machines, but instead was trying to license his invention to Scotsman, to be added on to Scotsmans existing ice machines. He is a prospective licensor, not a competitor. (ECF No. 20 at 13-15.) In response, Plaintiff offers an affidavit with new assertions, but those new allegations do nothing to establish Plaintiffs standing. Plaintiff now contends that he competes with Scotsman because he considered Scotsman his competitor (ECF No. 20-1 at 7), but Plaintiffs selfserving view is irrelevant. Plaintiff also now claims in his affidavit that he and Scotsman compete for the business of Subway (id. at 6), but that conclusory statement is contrary to the facts that Plaintiff pleaded in his Amended Complaint. Scotsman sells ice machines. (FAC Count I, 2). Plaintiff does not sell ice machines; he has a concept for an air filter that can be added to ice machines made by others. (FAC Count I, 7.) Plaintiffs position vis--vis Plaintiffs newly submitted affidavit also asserts that the NSF teleconference attendees included numerous potential buyers of Scotsman machines and sanitation products. (ECF 36-1 at 3.) The attendee list of the NSF Summary shows that is incorrect. Of the 24 total attendees listed, other than NSF personnel and representatives of Plaintiffs own company, Origin Tech LLC, the other attendees were representatives of Scotsman or its ice machine manufacturing competitors (Scotsman, Ice-O-Matic, Manitowoc Ice, Hoshizaki America, Follett, IMI Cornelius Inc., Legacy), public health officials (Stephens, Tackitt), a food safety consultant (Todd), and a foodservice equipment manufacturers trade association (Flynn, Souhrada). Only one attendee, Jim Brady of Wawa, represented a potential customer of Scotsman, and he attended because he was the chair of the NSF Task Group. (See generally ECF 20-1 at 1-2.) Scotsman acknowledges that the Court must accept the Plaintiffs allegations as true for purposes of the Motion to Dismiss, and Scotsman therefore does not ask the Court to consider this information in deciding the Motion, but Scotsman will challenge Plaintiffs assertions in this respect if the case proceeds.
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Scotsman is the same as that of the plaintiff in Gail Green Licensing & Design Ltd. v. Accord, Inc. (cited in Scotsmans Opening Brief). Just like the plaintiff in that case, Plaintiff here sought to license his idea to Scotsman for incorporation into Scotsmans existing products. (FAC Count I, 7-8.) The plaintiffs complaint in Gail Green was dismissed for lack of standing. Plaintiff offers no basis to distinguish that case. Finally, Plaintiff argues that he has standing because, he now claims, he and Scotsman compete in the sale of ice machine filters. (Id. at 6.) They do not, but even assuming that to be true for purposes of the Motion to Dismiss, it does not establish Plaintiffs standing to sue, because the Scotsman statements upon which Plaintiff bases his claims are not statements about either Scotsmans filter accessories or Plaintiffs filter device. (ECF No. 20-1 at 3-4.) The statements at issue, on their face, pertain only to Plaintiffs misinterpretation of the FDA Food Code and his claims about supposed design defects in existing ice machines. In trying to survive this Motion, Plaintiff reaches to find any possible competitive connection, but the statements at issue lack nexus to the alleged competition he now belatedly asserts. IV. CONCLUSION Plaintiffs First Amended Complaint should be dismissed in its entirety with prejudice. Dated: June 26, 2013 Respectfully submitted, /s/ Charles H.R. Peters_______ Charles H. R. Peters Matthew B. Mock SCHIFF HARDIN LLP 233 South Wacker Drive, Suite 6600 Chicago, Illinois 60606 Phone: (312) 258-5500 Fax: (312) 258-5600 Counsel for Defendants Scotsman Industries, Inc. and Kevin Fink 14

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CERTIFICATE OF SERVICE I hereby certify that on June 26, 2013, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will cause an electronic copy to be served on counsel of record, who is listed below: Nicholas J. Motherway Motherway & Napleton, LLP 100 West Monroe St,, Suite 200 Chicago, IL 60603 Phone (312) 726-2699 nmotherway@mnlawoffice.com

/s/ Matthew B. Mock

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