Inc. v. UL LLC, — F.3d —-, 2020 WL 3406585, No. 18-14976 (11th Cir. Jun.
This decision comes
out the right way—a manufacturer’s disagreement with UL’s interpretation of its
own standards doesn’t make UL’s interpretation false—but it also highlights
that the fact/opinion divide is very fraught.
Warren, which makes
UE heaters (don’t worry about it) for HVAC systems, sued its competitor Tutco
and UL, which is a Nationally Recognized Testing Laboratory accredited by OSHA
to certify products’ compliance with safety standards, including the UL 1995
standard for UE heaters. Warren sued for Lanham Act false advertising and
contributory false advertising, damages under the common law of unfair
competition, and violation of the Florida Deceptive and Unfair Trade Practices
“All of Warren’s
claims are based upon its allegation that, despite UL’s having certified
Tutco’s UE heaters as compliant, Tutco’s heaters do not, in fact, comply with
the UL 1995 standard,” because (Warren argued) UL misapplied the standard.
UL must, to do its
OSHA-accredited job, interpret its standards. UL’s resulting authorization to
Tutco to use UL’s mark was not an actionable misrepresentation. Even a
misinterpretation of the UL standard wouldn’t necessarily be a falsehood as
opposed to a matter of opinion, “provided it was made in good faith and in
accordance with OSHA’s criteria for independence, procedural regularity, etc.”
However, in order to limit what counts as opinion, the court indicated that it
would be possible to plead an actionable misrepresentation based on a
miscertification by UL. That could happen if UL failed to meet its own
standards for testing, or interpreted the UL 1995 standard inconsistently over
time, or applied it inconsistently to Warren and Tutco, or lacked independence
relative to Tutco. Interestingly, all but the first of these examples appear to
be the court reasoning from conduct that would invalidate a certification mark.
But why those things (aside from the first) would remove an interpretation from
the category of “opinion” is an interesting question.
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