Multiple Energy Technol., LLC v. Under Armour, Inc., 2026 WL
2016679, 2:20-CV-664 (W.D. Pa. Jul. 13, 2026)

Bioceramic powder is “a substance that is integrated into
clothing, and, when worn, allegedly improves sleep and muscle recovery.” Plaintiff
MET made a type of bioceramic powder called Redwave. It entered into “essentially
an exclusive supply agreement” with Under Armour, which makes athletic apparel.
But then Under Armour changed course and partnered with another producer, Hologenix,
whose bioceramic powder was called Celliant. MET alleged that Under Armour
falsely marketed its Celliant apparel as essentially being “FDA approved” when
it wasn’t, encouraged some of its manufacturing partners not to deal with MET,
and used confidential information from MET. Tortious interference is the only
claim that survives; I’ll only discuss that and false advertising under the
Lanham Act.  

After ending its relationship with MET, Under Armour
encouraged Tom Brady’s company TB12 and two other textile manufacturing
partners to use Celliant, not MET’s Redwave. Under Armour falsely promoted
Celliant as “FDA approved” or “FDA designated” to TB12. Likewise, “Under Armour
promoted on its website that the FDA determined that Celliant increases
localized circulation, leading to faster recovery,” and issued a press release
with similar language.

blurry image from opinion, sorry

The alleged statements to manufacturing partners weren’t
actionable because there was no evidence that Under Armour made false
statements about its FDA designation to two partners, “much less that these
false statements affected the companies’ decisions to end their relationships
with MET.” Instead, Under Armour required the use of Celliant (and not Redwave)
as a condition of its potential partnerships; it was that pressure that
mattered. Under Armour did make the FDA claims about Celliant to TB12, but there
they didn’t qualify as “commercial advertising or promotion.”

Using the Gordon & Breach standard, the
statements to TB12 were neither for the purpose of influencing consumers to buy
the defendants goods or services nor “disseminated sufficiently to the relevant
purchasing public to constitute ‘advertising’ or ‘promotion’ within that
industry.” It was undisputed that TB12 wasn’t an Under Armour consumer, but
instead a branding partner working with Under Armour to sell products, and
preventing TB12 from partnering with MET “didn’t otherwise affect consumers’
decisions to buy Under Armour products.” Nor were the statements directed to
the relevant purchasing public or sufficiently disseminated, since the relevant
consumer market consisted of individuals interested in purchasing articles with
bioceramics, not branding partners, so statements to TB12 weren’t “ ‘directed
at the purchasing public.’ ”

[Why couldn’t manufacturers also be relevant consumers where
the product is always a component of another product?] Even if TB12 counted, the
market wasn’t made up of a “’relatively limited’ ” number of potential
purchasers, so statements to TB12 alone would not be “ ‘disseminated
sufficiently.’ ”

The website statements, by contrast, were actionable
commercial advertising or promotion, but MET didn’t show that the press release
had made a false FDA claim.

In a standing-limiting reading of Lexmark, the court
found that MET lacked statutory standing.

First, MET couldn’t show a link between Under Armour’s
website statements and lost royalties from Redwave-branded products. The court excluded
MET’s expert report, without which there wasn’t enough evidence of proximate
causation. Other economic and reputational harm was “simply too remote to
establish a proximate causal link to the statements on the website.” There was
no direct competition, reputational disparagement, or a “1:1 relationship”
between the plaintiff’s sales lost due to the false advertising and the
defendant’s gains. The most directly injured victims would be any other bioceramic
apparel manufacturers, and then existing suppliers to Under Armour’s direct
competitors, not MET.

MET also failed to provide enough evidence of materiality to
get to a jury. “[N]othing in the record
suggests that any specific consumers saw the false advertising on Under
Armour’s website and changed their purchasing decisions because of it,” and MET’s
survey was excluded (see below). Nor were the parties direct competitors, which can save
some materiality arguments.

An antitrust claim failed because it was an antitrust claim.
MET also failed to create a triable issue on its trade secret claim/breach of a
non-disclosure agreement claim. But there was a triable issue on tortious
interference with an existing contract with one manufacturer and with prospective
business expectancies with two others. Although Under Armour’s discussions with
them weren’t “commercial advertising or promotion,” but rather “business
partners talking about what supplier to use” that didn’t make them necessarily
justified or privileged.

Multiple Energy Technol., LLC v. Under Armour, Inc., 2026 WL
2015216, No. 2:20-CV-664 (W.D. Pa. Jul. 13, 2026)

The court excludes two of MET’s experts, one of whom focused
on the antitrust claim, which I will ignore.

For the Lanham Act claim, MET’s proffered expert Dr.
Maronick offered a supplemental survey and report.

His original survey and report concluded that “a
statistically higher percentage of respondents seeing the Under Armour webpage
claiming that products ‘Powered by Celliant have been determined by the FDA to
increase localized circulation, leading to faster recovery’ believe th[at]
Under Armour products will provide the increased circulation and faster
recovery benefits claimed than do respondents who saw language that ‘the FDA
had not made a determination whether products made with Celliant increase
circulation and lead to faster recovery.’ ” It also concluded, “Under Armour’s
claims about increased circulation and faster recovery are Important or Very
Important in consumers’ decision to buy Under Armour products with either
Celliant or Redwave fabric.”

In response to Under Armour’s deposition, Dr. Maronick
“redid the survey,” creating the supplemental survey and report at issue. Specifically,
(1) he matched the images and the font sizes and lengths of the “FDA
determined/FDA has not determined” language shown to respondents across the
test and control groups; and (2) rotated the positive and negative answers to
both groups’ question on the “importance of the claims in consumers’ purchase
decision.” The test cell showed Under Armour’s actual landing pages, and the
control group was presented with landing pages that instead contained the
statement, “The FDA has not made a determination about whether products powered
by Celliant increase localized circulation leading to faster recovery.”

In his supplemental report, Dr. Maronick found that the
“design differences” between the original and supplemental surveys “had no
effect on consumers’ perceptions of Under Armour’s performance claims for its
‘Celliant-Powered’ products” and “played no role in assessing consumers’
reactions to claims made by Under Armour.”

The court initially found that the first survey’s flaws
merited exclusion. It now evaluated the supplemental survey, and still found it
too flawed to admit because it (a) used a fundamentally inadequate control; (b)
materially distorted marketplace conditions; and (c) didn’t mitigate
non-response bias or identify a target population.

The control was “problematic” because it “artificially [drew
respondents’ attention] to the fine-print language at issue[,]” making it
“impossible to determine [the cause of] any disparity between the respondents’
reactions to them.” First, the control survey focused its respondents on the
fine-print text addressing the FDA claim at issue by framing that text in a
white box, while no box surrounded the FDA-related text in the test group’s
same question. Likewise, the control survey underlined the direction “[n]ote
the statement about products ‘Powered by Celliant’ at the bottom of the
statement,” “increasing the likelihood respondents would read the fine-print
statement explaining that the FDA had not yet determined whether Celliant
improved athlete recovery.” In the test cell, the same direction wasn’t
underlined. The court found these differences to be “significant” and likely to
skew the results.

one without a box, one with

Additionally, the test survey used improper negative
language— stating that “[t]he FDA has not made a determination about whether
products powered by Celliant increase localized circulation leading to faster
recovery.” The Court previously found such language flawed because negative
language creates different language than positive language. (I’m not sure why
that is distorting—if the truth is that the FDA hasn’t evaluated the statement,
how else can you say that? If negative language matters to consumers, then that
in itself seems like evidence of materiality.) Alone this would go only to
weight, but the variations amplified the negative language’s skewing effects,
making the control improper.

The survey also “inappropriately distorted market conditions
by flagging the variable about which the survey intended to ask respondents—the
FDA claim—without having properly screened out respondents who otherwise would
have ‘paid no attention’ to the fine-print claim.” [This is downstream of a larger
debate about whether attention or comprehension, once perceived, is more
important—from a regulatory perspective I favor comprehension, once perceived,
because I don’t think there’s any social benefit in deceptive statements that
might be overlooked, but reasonable minds can certainly differ.]

The survey “funneled” respondents by asking questions about
magnified pictures of the fine-print language, and screened out respondents “[w]ere
[not] able to see the images clearly.” But there was no filtering of
respondents who, while physically able to see the webpages, didn’t notice or
read the fine-print text, thus materially distorting marketplace conditions.

Finally, the supplemental survey failed to account for
non-response bias and identify a target population.

from Blogger https://tushnet.blogspot.com/2026/07/under-armour-defeats-lanham-act-claim.html