challenge to whether certification agency did its job can't be used to disprove an establishment claim

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.