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Title: Kerr Corporation v. North American Dental Wholesalers

October 18, 2011

TITLE: KERR CORPORATION
v.
NORTH AMERICAN DENTAL WHOLESALERS, INC., ET



The opinion of the court was delivered by: Honorable David O. Carter, Judge

CIVIL MINUTES -- GENERAL

O

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera N/A Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTION TO CONSOLIDATE ACTIONS AND DESIGNATE PLAINTIFF IN CONSOLIDATED ACTION

Before the Court is a Motion to Consolidate Actions and Designate Plaintiff filed by Defendants North American Dental Wholesalers, Inc., and North American Dental, Inc., ("Defendants"). The Court finds the matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, the Court GRANTS the Motion.

Because the Motion is GRANTED, the hearing on this Motion, originally scheduled for November 7, 2011, is removed from the Court's calendar.

I.Background

i.The Parties

Kerr Corporation ("Kerr") is Plaintiff in the present case 11-313 and a defendant in case 11-1300. Kerr is a wholly-owned subsidiary of Sybron Dental Specialties, Inc., ("Sybron"), which itself is a wholly-owned subsidiary of Danaher Corporation ("Danaher"). Order (11-1300 Dkt. 17). Sybron and Danaher are the other two defendants in case 11-1300.

North American Dental Wholesalers, Inc., ("NADW") and North American Dental, Inc., ("NAD") are Defendants in the present case 11-313. NADW is the plaintiff in case 11-1300.

ii.Parties' Interactions Before Litigation

NADW is an importer and distributor of dental supply products that, in the past, included Kerr-branded consumable dental products. Order at 1 (11-1300 Dkt. 17). Kerr and Sybron manufacture and sell Kerr-branded dental products. Id. at 1-2.

On December 14, 2010, either Sybron or Kerr allegedly sent a letter to NADW to "express concern" about NADW's "trafficking in goods bearing spurious and unauthorized imitations of [Kerr's] marks." FAC ¶ 22 (11-313 Dkt. 23); see also Kerr. Opp'n at 2 (11-313 Dkt. 63).

After receiving this letter, NADW allegedly engaged in settlement conversations with Kerr. Kerr. Opp'n at 2 (11-313 Dkt. 63).

On December 30, 2010, Sybron allegedly sent to 30 retailers a letter accusing NADW of counterfeiting Kerr products. Amended Complaint ¶ 74-80 (11-1300 Dkt. 10); Def. Mot. at 2 (11-313 Dkt. 62). These 30 retailers constituted about 80% of NADW's United States market for brand-name dental products. Def. Mot. at 2 (11-313 Dkt. 62).

Sybron also allegedly requested that retailers stop purchasing Kerr products from NADW, including products which Sybron knew were ...


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