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September 29, 2014

Superiority of Triangular Geogrids over Uniaxial and Biaxial Geogrids at Issue in Action Brought by Tensar Against Former Employee

On August 6, 2013, Tensar International Corporation (“Tensar”) filed a complaint in the Northern District of Georgia asserting false advertising, Georgia Deceptive Trade Practices Act violations, and violations of Georgia statutory and common law relating to it geogrid product “TriAx®” against James Penman (“Penman”) acting individually or on behalf of Alliance Geosynthetics, LLC (“Alliance”).

Tensar participates in the “geosynthetics” industry as a full-service provider of specialty construction products.  Tensar defines geosynthetics as being a family of products for earthwork applications made generally from thermoplastic polymers.  A geogrid is an oversized screen (usually one inch or larger openings) which captures aggregate or soil particles and interlocks them to create a mechanically-stabilized earthwork, such as a roadbed.  The geogrid serves to redistribute the load and thus protect the structure from isolated failure.

According to the complaint, Tensar originated the “punched and drawn” process to manufacture geogrid products.  This process begins with the extrusion of a sheet, which is fed into a press where fine holes are punched into it.  After the punching, the sheet is stretched to open up the holes in a large heated chamber.  This process not only enlarges the holes but aligns or orients the thermoplastic polymer, greatly strengthening the product.  “Punched and drawn” grids are referred to as “integral,” because the sheet is not a composition product but is rather a modified single element.  The products are generally classified by the shapes of the holes they contain – uniaxial (oblong), biaxial (square or rectangular), or triangular.  Tensar claims that it led research in geogrid materials and obtained the first patents in the uniaxial and biaxial categories and later the triangular categories introduced in 2007.  The triangular geogrid has the advantage of isotropic strength over the one-directional strength of uniaxial geogrids and the two-directions of biaxial geogrids.

Geogrid products are evaluated on several criteria, including material properties, performance testing, and governmental acceptance and approval.  Tensar’s triangular geogrids have been accepted by many departments of transportation and have been evaluated for material properties and performance.

In January 2011 Tensar terminated Penman’s employment with the company and he subsequently became Vice President of Sales for a Tensar competitor, Alliance, which does not offer geogrids in the triangular category.  Thereafter, according to the Tensar complaint, Penman disseminated advertising and promotional materials making false and misleading claims about a Tensar triangular product in comparison with unspecified biaxial geogrid Alliance products.  Specifically, Penman authored and distributed a “Product Equivalency Statement” used to persuade consumers to select Alliance biaxial geogrid products over a Tensar triangular product using at least seven allegedly false statements.

Tensar alleges violations of the Lanham Act [15 U.S.C. § 1125(a)], the Georgia Uniform Deceptive Trade Practices Act, and adds a count for libel, and seeks punitive damages and attorneys' fees for Penman’s intentional misconduct.  Preliminary and permanent injunctive relief is also sought.

The case is Tensar International Corporation v. James Penman, No. 1:13-cv-02594-WBH, filed 08/06/13 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge Willis B. Hunt, Jr.

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