McKeon Rolling Steel Door Co. v. U.S. Smoke & Fire Corp.,
2026 WL 865699, 1:23-cv-8720 (ALC) (S.D.N.Y. Mar. 30, 2026)

McKeon sued defendants for false advertising under NY and
federal law. I’m ignoring the trade secret counterclaim.

McKeon and USS&F compete in the market for commercial
and special purpose safety assemblies, focusing here on fire shutters that
close openings in buildings and block the passage of flames and gas in the
event of a fire. Fire shutters are installed in public buildings, including
hospitals, schools, and airports; they descend from ceilings if there is a
fire. Building codes throughout the United States require that fire shutters be
tested and certified by UL 10B Standard for Safety.

Defendant Guardian tests products, sometimes with
third-party help; once it deems a product certified, it posts that to its
website. Once the products at issue were deemed “certified” by Guardian, defendant
USS&F posted the certification information on its publicly accessible
website.

They argued that the statements were literally true because USSF’s
products were tested by a third party, a certified testing agency; the tests
were witnessed by Guardian, and Guardian issued certifications that the
products were UL 10B certified.

McKeon argued that, even though the products stated they
were UL 10B certified, they were not properly certified. McKeon had obtained
what defendants deem “confidential test reports” and interpreted the results to
determine whether the products should have been certified to UL 10B standard. McKeon
argued that it was bringing an establishment claim, by which it sought to prove
that “the Test Reports do not support the proposition for which they were
cited; namely, that the subject Products meet the UL 10B certification
requirements.”

The court found summary judgment appropriate, because this
wasn’t a case where the claim was “tests prove X,” but rather “this product is
accredited by a third party.” And that was true. The court found that cases
allowing challenges to the reliability of claim-supportive testing were about
protecting consumers against unfounded superiority claims. Here, there was no
superiority claim, so there could be no establishment claim. [This distinction
seems wrong to me, even if summary judgment is correct on these facts.
Certainly statements that “tests prove” a monadic claim (e.g., treats headaches)
or an equivalence claim (as good as) should also be able to be falsified.]

Instead, the court looked to Board.-Tech Elec. Co. v. Eaton
Corp., 737 F. App’x 556 (2d Cir. 2018), which rejected a challenge to whether a
competitor’s light switches should have actually been certified by the UL.
“Without any indication that UL decertified the defendant’s product—or
(perhaps) that the defendant’s product had materially changed since
certification—there would be no plausible allegation of a false statement.” Here,
McKeon conceded that it didn’t have a certifier re-test the products at issue,
or provide evidence from a testing agency that the products didn’t meet the standard,
or provide evidence that there was in fact no accreditation. Thus, the statements
were literally true.

from Blogger https://tushnet.blogspot.com/2026/04/challenge-to-whether-certification.html