Tempur-Pedic Dismissal_1.14.2011

8/7/2019 Tempur-Pedic Dismissal_1.14.2011

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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTYPRESENT: L04bindex Number :400837/2010PEOPLE OF THE STATE OF N.Y.vs.TEMPUR-PEDIC INT L, INC.SEQUENCE NUMBER :003STRIKE

PARTc

INDaCNO.MOTION PAT6MOTION 8- NO.MOT ION CAL. NO,

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thk motlon tolfor

Dated:

Check one: &UAL DISPOSITION 0 NON-FINAL DISPOSITIONCheck if apbroprlate: 0 DO NOT POST 0 REFERENCE


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SUPREMECOURT OF THESTATEOF NEW YORKNEW YORKCOUNTY: IAS PART 6- - - - - - - I ~ - U I - - - - - - l - - c - XPEOPLEOF THE STATEOF NEW YORK byANDREW M.CUOMO, Attorney Generalof theState of New York, Petitioner,

-against-IndexNo. 400837/10fl

TEMPUR-PEDICINTERNATIONAL,TNC.,

Motion SequenceNumbers001,002, and003 are hcrcbyconsalldatedfordisposition.In Sequence 001, Petitioner Andrew M. Cuomo,Attorney Cfencdofthe State ofNew York,brInBsthis summary proceeding on behalf of the People of the State of New York against respondentTmpur-Pedic International, Inc. (Tempur-Pdc), seeking an order and judgment erljoiningTempur-Pedicfrom engaging in its discounting policy; prohibiting Tcmpur-Pedicfrom destroyingrecords; ordering disgorgerncnt of Tempur-Pedics profits and restitution to consumers; andawarding costs underC.P.L.R.Q 8303(a)(6). The Office of the AttorncyOencd(OAO) allegesthat Tcmpur-Pedicbas violated New York General Business Law 8 369-4 and that those violationsconstituterepeatedandpersistent illegal andfraudulcntconduct inviolation ofNcw York ExecutiveLaw 6 63(12). In Motion Sequence Number 002, Tempur-Pedic moves,pursuant to C.P.L.R.0404(a) and Rules 321l(a)(3) and 321 l(a)(7), for morder and judgment dismissing the petition. InMotion SequenceNumber 003, Tempur-Pdic ~ O V C Bfor an order striking podons of the OAQspetition or granting Tempur-Pedic leave to take dhcovcry of the evidence submitted With thepetition.


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Tempur-Pedic manufacturesvisco-elasticmemoryfoammattrtsses. Thosemattressesam sold directlyby Tempur-Pdic and by retailersauthorizedbyTempur-Pcdicto resell itsproducts.Apparently, in February2007, the OAGreceived a letter from a member of the public (who askedin his letter that his identity remain confidential), who stated that he had been shopping for aTempur-Pedic mattrags and that a number of atoms in New York had Informed him that Tempur-Pedic dictates the rcselltrs prices for its mattressesand does not allow discounts. The letter stated,[tlhis sounds like illegal price fixing to me. Based on this singular complaint, thu OAGcommenced an investigation into Tempur-Pcdics retail pricing policies, and uncovmd what itallegts are illegal and prohibited contracts to fix prices.

Tempur-Pcdic has established what it refers to as its Retail Partner Obligations andAdvertisingPolicics (the RPOAP). Retaileraagree to abide by the terms in theWOAPby signingan acknowledgment of receipt. As a Tempur-Pcdic retail partner, the retailer must agrcc to, forexample, follow Tempur-Pcdics rulesregardingadvertising and brandmarkusage; ship only withincertain geographic areas; accept Tempur-Pedica termination policies; and understand the productand the warranties. The RPOAP sets fortha numberof advortising policies to which retailers mustadhcra. Forinstance,mtaile n must have a physical store location; adhere to certaln rastrictionaonInternet sales and advertising; adhere to certain restrictions on the usa of coupons, rebates, andpromotional items; adhere to certain restrictions on the words, pictures, and brandmarh used inadvartising or discussing the product; and adhere to restrictions on the types of media used tocommunicate advertisements. Certain typcs of promotions may not bc advertisedwith Tempur-Pcdic products, such as advertising a freegift,giftcard,rebate, coupon, or store crcditwith a value

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of over $100 with the purchasa of a Tampur-Pcdic product; advertising an offer to pay the amountof the d e s tax on a Tempur-Pedic product; advertisingan offer to pay the customer for his or herold bedding in coqjunction with the purchase of a new Tempur-Pcdlc product; or advertising a freefoundation with the purchase of a Tempur-Pedic product. The RPOAP firher states: [tlhaorequirements are the only agreement between you and Tcmpur-Pedic and supcmdc andor replaceany otheragreementsyou mayhave. Those requirementscannotbe changedorally,but onlythroughwriting. The RPOAP is periodically revised by Tempw-Ptdic; the most recent version of theRPOAP is from 2009. The RPOAP does not contain provisions regarding pricing.

In April 2002, Tcmpur-Pcdic established a ratail pricing policy. In a one-pagememorandum to ita rctailcrs, Tempur-Pedic announcc[d] a policy to suspend doing businasswithany r e tde r who does not adhere substantially to [its] suggested retailprice ranges. Tempur-Pcdictold therctailcrs that it would s upend shipmentatoan account if it discovercd that the account wassubstantially deviating from Tcmpw-Pedicssuggested retail priccs and that theduviationwas morethan an isolated incident or a liquidation sale of discontinued Tem pw-Pudic merchandise. Theretailers were informed that the policy is Tcmpur-Pedics unilateral decision; the policy is notnegotiable; and that Tempur-Pedic neither seeksnor will it accept its retailers agreement with thepolicy. The retailerswere also told that they may set priccs at whatever ltvcl they believe to be intheir best interests. Since the initial anoouncementof the policy in April 2002, Tempur-Pcdic hasreaffirmed its pricing policy through written euld verbal communications to its mtaIlcra. Tempw-Pedic informs its retailers about its suggested retailprice ranges by periodically providing rctailtnwith prim lists.

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During its investigation, the OAO dlacovcred thatNewYorkrctdlcra sellingTcmpur-PdicmattressesgenerallycomplywithTempur-Pedica pricks policies. In rasponso to the OAWainterrogatories, Tempur-Pudic stated that it was not aware of anyNew York retailer who had chosennot to adhere substantially to its suggested retail price rang=, and that it interprets adheresubstantially,in thiscontext to include both a persistent and intentional deviation from sugpstedretail price ranges. Various retailers that were subpoenaed by the OAOs office acknowledged thatthey ad hm to Tem pwP cdica pricing policy. Tempur-Pedic stated that it sometimes reccivescomplaintsofunderpricing fiom retailers againstotherretailers. TheOAG submitsdocuments thatindicate that Tempur-Padic contacts retailera to clarify Itspricing policy when it believes that theretailermay bc violating the policy.

The OAO brings thisproceeding under Executive Law 9 63(12). The OAO claimSthat Tumpur-Pcdic has demonstrated persistent h u d and illegality by violating General BusinessLaw 6 369-a,which acts forth: [a]ny contract provision that purports to restrain a vendee of acommodityfromresellingsuch commodity at lessthanthe price stipula ted by thevendor or producershall not be enforceable or actionable at law. Under Executive Law 63(12) theAttorney Generalm a y apply to the courts for an ordw iq jo id ng any parson from engaging in repeated hudulcnt orillegal acts or otheMrise demonstrating persistent h u d or illegality in transacting business.

Tempur-Pudic subm its an answer merting affirmative defenses and also moves todismiss the petition pursuant to C.P.L.R.0 404(a) and Rules 321 l(a)(3) and (aX7). In the motionto dismiss, Tempur-Pcdic first argues that the petition fails to allege any illegal act, Second,

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Tempur-Pedic argues that the petition fails to allege facts rrmfllcient to demonstrate any fraudulentconduct by Tempur-Pcdic. Third, Tampur-Pcdic maintains that tha OAO has not alleged factssufficientto establish the existence of a contract provision betwucn Tcmpur-Pdic and its rctailcrsto bet prices. For them reasons, Tampur-Pcdic argues that the petition must be denied and theproceeding dismissed in its entirety.

The court evaluates special pmcccdinga under the same standards that apply tosummary judgment motions. v. D-to Cqfp, 135 A.D.2d 353,354(1st Dept 1987). Petitioner must tcndar evidentiaryproof, in admissible form, sufficient to m tthe court rn a matter of law in directing judgment in [his] favor . . . . C.P.L.R. Rule 3212@).Unsupportedallegationsor thosewith insufficient or inadmissible proof will not m e to establishaa case. Only after the petitioner submitsevidence establishing its claimdocs tho burdensldfi to the respondent to come foward with cvidcnco raising a triable issua of fact.

As to whether Tempw-Pedice pricing policy is Illegal, tho OAO maintains thatSection 369-a of the Ocncral Business Law provides that a vendor or producer, such asTempur-Pedic, canaot prohibitaresellerfrom discounting its products. The OAC3urge3that Section 369-astitle, Price Fixing Prohibited, directly demonatratcs the legislative intent to declare contracts torestrain resalepricing illegal. Citing to ~ Q Q Sv. 485 F. Supp. 762(S.D.N.Y.1980), the OAO maintains that under New York law, a vendor cannothist that retailersw the prices specifiedby the vendor or otharwise restrain the resellers right to discount themaleprice.


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Tumpur-Pedic argues that the pldn languageofGeneral Businass Law 4 369-a doesnot declare contracts to rcstrain a vcndce from msalling a commodity at lessthan a price stipulatedby the vendor illegal; rather, Section 369-a declaras those contracts unenforceable. Tempur-Pcdcurgcs the courtto construe Section 369-a in conjunctionwith the Donnally Act (General BusinessLaw 3 340, sBQ3 and the Sherman Act (15 U.S.C. 6 1, a&. Tempur-Pdic argues thatconstruing Section 369-a to outlaw all resale priw agreaments would bring Section 369-a intoconflictwith the Donnelly and the Sherman Acts, under which such agreements arepresumptivclylegal. Tcmpur-Pcdicarguesthat declaringresalepriceagreements illegal inNewYorkunder Section369-a would raise issues of fair warning and due process, given that the statute contains no suchdeclaration, the OAGa prior interpretation of the statute is to the contrary, and the OAO has neverbefore charged anyone with violating the statute.

Thecourt agrees withTcmpur-Pudic that the OAO has failed to allege an illegal act.The statutory text is the clearest indicator of legislative intent and courts should construeunambiguous lanjpagc to giva effuct to itsplain meaning,lo raD- V. S w7 N.Y.3d 653 ,660 (2006) (citationsomitted). While theOAO urges the court to look to the titleofthe statute and other indicatorsofthe legislatures intent to criminalizeresale price restrajnts,whenthe text isclear,the courts inquiry into legislative intent ends.& , 1 N.Y.2d471,475 (1956) (While a title or heading may help clarlfl or point the meaning of an imprecise ordubious provision, it may not alter or limit the effcct of unambiguous language in thc body of thestatute itself.). There is no ambiguity in the text of Oeneral Busintss Law 8 369-a Contracts forresale price restraintsarc uncnforccablc and not actionable, but not i l l e d .

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Further, the court dots not find, aa the OAO argues, that W w & Sons V,485 F.Supp. 762(S.D.N.Y.1980) iscontrolling on the issue of whetherTcmpur-

Pediccommittadan illegal act. In aretailersueda manufbcturcr for themanufacturersfailure to fill and ship orders. The court found that the manufacturerhad threatened to cut off theretailers shipments if the retailor did not adhere to its pricing guidelines. Id, at 768. Themanufacturersmaintained that it had not breached ita contractual obligations to fill and ship theretailars ordcn bccausa the retailers orders wem not binding on the manufacturer until approvedby the manufacturershomeoflice. The court found that thisexplanation wat a pretext for tha rcalreason that the manufacturer mfuscd to fulfil its contractual obligations, namely, that the retderrefused to adhere to the manufacturers pricing guidelines. Thus,tha retailerwmentitled to recoverdamages for the manufacturers breach. The courts one referenceto General Business Law 5 369-athat, in light of the statute, the manufacturer could not lcgally implement Its minimum pricingpolicy^ isnot a holding that all such policies are illegal, but that the court would not enforce such acontract. ld,at 772,

Having fallen short of suMciently alleging an illegal act, the court must datcrminewhether the OAO haa sufficiently alleged that Tempur-Pedlcs acts or practices, 8s described,amount to rcpcatcd or parsistcnt fraud. Tempur-Pedic maintains that the QAOb failed to allegethat Tcmpw-Pedica acta have had the capacity or tendency to deceive, or rhavt] create[d) an

I InQrl Wa4ner, the court went on to award treble damages in favoroftheplaintiffretailerundct the Donnelly Act. InMa case, the OAO stated at oral argument that it was not asserting thatTempur-Pcdic hadcommitted any violations of the Donnelly Act.


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atmosphere conducive to fraud, v. 0- 302 A.D.2d 314 (lat Dcpt 2003).Tcmpur-Pedc maintains that it operate8at face value and that itsactionswith regard to itspoliaynotto do business with retailerswho choose to sal1 ita products below its suggested retailprlcas arcconsistentwith its words, with no attempts to deceive or mislead.

The OAO maintains that Tumpur-Padics restraintson discounting arc fraudulentbecausethecompanymisleadsretailem into believin8 that restraints on discountingarcenforceable,thus ensuring compliance to ita dernanh. Further, Tmpur-Pedics pricing rtlrtraints dacaivecustomem into believing that the retailer cannot discount Tempur-Pedic products, when in fact,retailers do have that right under law. The OAO also argues that the pricing policy is anunenforceablecontract provision. Thu OAO thusmaintains that Tcmpur-Pcdics pricing policy isfraudulent conduct actionable under ExecutIvu Law 8 63(12).

For the purposes of Executive Law 9 63(12), thc term fraudulent includes anydevice, scheme or artifice to dehud and any dewption, misraprcscntation, con&almant,suppression,false pretense, falsepromise or unconscionablecontractualprovisions. TheOAQ hassubmittednoevidence to show that retailerswere misled or deceived in anyway to believe that theyhad entered into contracts to restrain discounting. The scant evidence submittadby theOACt onthisIssue, in fact, tends to disprove itsargument thatrutailenwere misled. In its interrogatory responses,a retailer identified BSRaymour& Flanigan states that it did not make any agreementwithTempur-Pudic on retail pricea. Raymour & Flanigans stnior vice president ofmcrchandising, NeilRoscnbaum, states in an affidavit that Raymour& FlanigansellsTumpur-Pdc productJ based on

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Tempur-Pcdics policy. A retailer identified as Slccpys sets forth that it s decisionto sal1 Tempw-Pcdic productaat suggested retail prices is based on Tempur-Pedics unilateralpolicy.Slaepysvicepresident of sales, Michael Bookbinder, states in an affidavit that Slecpya aalla Tampur-Pcdicproducts at suggested retail prices becauseTempur-Pcdic dcclints to do businesswith retailerswhocharge less. Them is no evidence submitted by the OAO that these retailers have bccn misled tobclicvc that they arebound byanCnfOrCCabh contractto satretail prices. Further, althoughtha OAOmouesthat Ttmpur-Pedicspricing restraintsdeceive customers into believing that amtailercannotdiscount Tempur-Pedic producta, no evidence was submitted to support this contention.

Moruover, although the OAQ argues that It has the power to enloin unenforceablecontract provisions under ExecutiveLaw g 63(12), the OAO has not sufficiently demonstrated theexistenceof a contract here, which is one ofthe clcmcnts required by General BusinessLaw 5 369-a.In detarmining whether a contract exists, the inquiry centers upon the parties intent to bc bound,ix., whether there w89 a meeting of the minds regarding the material terms of the transaction.

v.\ 70 A.D.3d 423,426 (1st Dcpt2010)(internal quotationmarksomitted),d- Sav.. F- W e&&,J&& 176A.D.2d 131,132(lstDept 1991). Thercisvurylittlccastlaw inNewYorkthatdealswithOencral BusinessLaw 0 369-a.Howaver, the concept of a meeting of thu minds withregard to price-fixing Jleptions was hcavilydiscussed in theUnited Status Supreme Court c a ~ eof

deals with thefederal ShermanAct, and not New Yorklaw,the case provides some guidance as to the definitionof a contract in case8 involving allegations of trade restrain&and price fixing.

Co. v. S w Sew.Cqgl.,465 U.S. 752 (1984). Although

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In MOnsanfO, tha Court distinguished between independent action and concertedaction. A manufacturers indapendent acts to setminimum resalepdccs,without seckingagrccmentfrom its retailers,do not amount to a contract. at 761; W d S w v. Bt Go,250 U.S. 300,307 (1919) (reaffirming lonastanding right of a private m anufacturer to decide withwhom he wants to do business and announce In advance the circumstances under which he willr e h e to scll.). The Court further explained:

the fact that a manufacturer and its distributors are h constantcommunication about p r i m and marketing strategy doe8 not aloneshow that tha distributon arc not makingindependent pricingdecisions.A manufacturerand itJdistributorshave legitimateceasonsto exchange information about the prices and the rcception of theirproducts in themarket.Moreover, it isprcciscly in CBSCS in which themanufacturer attempts to M e r a particular marketing strategy bymeans of agreementson often costly nonprice rcs trlctionsthat it willhave the most interest in the distributors resale prices. Themanufacturer often will want to ensure that ita distributora camsuffIciant profit to pay for programs such as hiring and trainingadditional salesmen or demonstrating the technical faaturua of theproduct, and will want to see that %endera do not intcdere.Thus,the manufacturers strongly felt concernabout resale prices d o a notnecessarily rnm that it has done more than the Colgate doctrineallows.

465 U.S.at 762-63 (intcmal citations omitted). Neither will complaintsfrom retailers about otherretailers who cut prices, alone, demonstrate thatanagreement cxista betweena manufacturer and itaretailersto fuc pdcea. 16at 763, n.8. [S]omething more than evidence of complaintti is needed.Id at 764. A party necking to prove an agruemcnt to flx prices must present evidence that tends toexclude the possibility that tha manufacturer and retailers were acting independently, avidenccthat the manufacturer and reta ilers had a conscious commitment to a common scheme designedto achieve an unlawftl objective. (citationsomitted). To show a meeting of the minds or a

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commonscheme, itmust tw shown that the rctnilercomuniwtcd its acquiuscenccoragreement,and that this was sought by the manufacturer. IQ,at a.9.

Another instructivecase is v.V- 825 F.2d 1158(7thCir.1987), deniad,486 U.S. 1005 (1988). Inathe manufacturerprovided ratallcrs with asuggasted retail price list and informedthem that they could sell at any price they wanted. at1162. The plaintiff retailer sold the product at pricesbelow the suggested retail prices. Competingretailers complained to the manufacturer about tho plaintiff. W h e n the manufacturerfoundoutaboutthe plaintiffIdiscounting, it began to threaten and harass M m in a v d e t y of waya. The plaintiffr a i d his prices in response to threats h m the mmdacturer that his orders would be mixed upunlesshe raisedhis prices. at 1162-63. However, he did not raisc his prices until one year afterthe threats started, and in that year, the manufacturer never carried ou t its thranta to hann theplaintiffs businms. at 1163. The court posited that mertly adhering to suggeeted retail pr i wdoes not establish an agreement to adhere; but, if the manufacturer employs coercive tactiw orh e a t s to achieve compliance, a contract may be implicitly formed by conductin lieu of promissorylanguage. at I 164. A contract may bc formed if a retailer raises his prim in response to amanufacturers threats to harm the retailers businass unless the rctailar compliea with a list ofsuggested prices. Id,

Turning to the case at hand, tha court finds that, even under the rationale in IseJwan.petitioners rmbmisdom do not sufficiently allcga that a contract to flx prices was formed. In theOAOs papcn in support of the petition, there arc a numbcr of instances of Tempur-Pedic

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communicathg with its retailers rugarding compliance with its sat minimum pricas, but thecommunicationsdo no t damonstrata the enforcement mechanisms contemplated in thatmight support a finding of a contract. The OAGa submissions are also insufflcimt to show thatTempur-Pedic actually cancelled an accountWith a retailer basadon the ratnflers failure to adhareto the pricing policy. Indeed, Tmpur-Pedics response to the OAOs interrogatoriesacta forth thatit hasnever ceased doingbusinesswithaNew York retailerdue to the retailers m M or fdlurc tosell Tempur-Pcdicproductsatretailprices suggested, recommended,ormandated by Tempur-Ptdic.OneinternalTempur-Pcdic e-mail seemed to indicate that Tcmpur-Pcdic was going to terminate oneretailer, Dave Hayes Appliance Center, for fnilura to adhere to the pricing policy, but there arc noaffidavits fhm that retailer and no indication that the retailer was ever actually tmninatd.Petitioner allegcsthata second retailer, Dream City Mattruss,wasalso tcrminatcdasaTampur-Pedicretailer, and that upon Information and belief, Dream City Mattress w88 terminated due todiscounting. There is no documentation annexed to the putition to support this allegation. Theevidencepresented by the OAG failsto demonatratethat the interactionsbetwean Tempur-Ptdic andit s retailers amounted to a meetingof thomindsor consisted of harassment,threatstoharmbusiness,or concerted acts bctwecn Tcmpur-Pedicand its ~ t a i l t ~to harassother noncompliant retailers.

The OAO has also allcgcd that the WOAP violatesGeneral Business Law 0 369-4because it contains contractual provisions that prohibit and restrain discounting. Tempur-Pdcacknowledgesthat the RPOAP is an agreement bctwcan itself and the mtailers,so for the purposesof this motion, the court will consider theRPOAP to be a contract. To be clear, as was explainad

the RPOAP rtstraina the retailerfrom advertising certain coupons, rebates, and promotional-12-


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items. It does not appaar that the RPOAP prohibita dealers from providing coupons, rabatw, orpromotional items to the customer, but by accepting the terms of the RPOAP,the dealer does a p enot to advertise thaw itoms in conjunction with Tmpur-Pcdic products. Rcad plainly, thuRPOAPis not a contract to restrain discounting, only advertising of discounting.

While the OAO maintains that the RPOAPs termination l a n p g e specifidlyincorporates Tampur-Pcdics pricing policy, and that Tempur-Pedic achieves compliancewith thepricing policy due to the contrect it haswith its retailers in the RPOAP,the evidence submitted bythe OAG docs not support thia allegation. The RPOAP does require the retailer to agree to abideby and Acccpt Tempur-Pedic Retail Partner Termination Policies. The OAO alleges that theRPOAP is provided to Tempur-Pedics retailerswith a covar letteraxplaining Tempur-Pudicsratail pricing policy and Tcmpur-Pcdics intentions to cease doing business with any retailer thatcharges less than Tampur-Pedics suggested retail prices. The OAO egscntiallyasks the court toconsider the two documents as the complete contract, into which ratailem enter by signing theacknowledgment of receipt of the RPOAP.Thisclaim that theRPOAP andthe cover lettershouldbe considcrtd one contract is flawed. First, the OAOs submissions do not sufflcicntly support itsclaim that the documents am provided together. Second,Tempur-Pedic sat forth that it carriesoutita pricing policy even if a retailer does not ague to be bound by tho RPOAP. Third, the languagein thcRPOAP statesthat theRPOAP is*theonly agreementbetween[retailers]andTempur-Pedic.It is well settled that a contract is to be conatmed in accordance with the parties intent, which isgenerallydiscerned from the four cornersof the document itself. Consequently, a written agreementthat iscomplotc, clcar and unambiguous on its face must be enforcedaccording to thepldn mcanhg

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of its terns. JDT C Q ~ .v, Tvco GrowSA ,& , 13 N.Y.3d 209,214 (2009) (internal quotatiorisomitted). Theta is no indication that the parties intended to inaorporate the pdcin8 poliuy into theRPOAP. Tellingly, the retailers themselves, whbn questioned by the QAO, denied the existence ofa contract between themselves and Ternpur-Pediq to adhere to Tempur-Pcdicspricing guidalines.The evidence submitted by the QAO indicates that the retailers understand that they are notcontractually bound to adheretoTtmpur-Pcdicsminimum suggestedretdl prices,but that not doingsomay negatively affect their standing as a Tzwpur-Pedic productretailer. Withoutdemonstrating,by some evidence, that a contract to adhere to suggested minimum resale prices or prohibitdiecoi3dlting exists, the OAGs petition falls short of pleading all of the elements required to showa viol@tionof General Business LAW 5 369-a. Even accepting the Attorney Oeneralsargumentthatit hm the power to seek to enjoin parties fkom imposing wenforceable contract provisians, as itmserts, no contract provision to restrain discounting has been established herein.

The court need nat reach the rernPlinder of issues herein. Accordingly, it is hereby

ORDERED andADJUDGED that the rnqtirrntodismiss isgranted (MotionsequenceNumber 002), the motion to strike (Motion Sequence Number 003) isdenied asmoot, the Wtition(Motion SequenceNumber 00 1) is denied, and rhe proceeding i s dismissed.

Dated: Janwry /r ,201 1

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Tempur-Pedic Dismissal_1.14.2011