Thursday, June 25, 2020

UL's interpretation of its own standards is opinion (but not all standards application would be)

Warren Technology, Inc. v. UL LLC, --- F.3d ----, 2020 WL 3406585, No. 18-14976 (11th Cir. Jun. 22, 2020)

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 Act. 

“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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