Charlene Dzielak v. Whirlpool Corp ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 20-2551 & 20-2661
_______________
CHARLENE DZIELAK; SHELLEY BAKER; FRANCIS
ANGELONE; BRIAN MAXWELL; JEFFERY REID; KARI
PARSONS; CHARLES BEYER; JONATHAN COHEN;
JENNIFER SCHRAMM; ASPASIA CHRISTY,
on behalf of themselves and all others similarly situated,
v.
WHIRLPOOL CORPORATION;
SEARS HOLDINGS CORPORATION; HOME DEPOT
USA INC; FRY’S ELECTRONICS INC.; APPLIANCE
RECYCLING CENTERS OF AMERICA INC; LOWE’S
HOME CENTERS, LLC
Charlene Dzielak; Shelley Baker; Francis Angelone; Brian
Maxwell; Jeffery Reid; Kari Parsons; Charles Beyer;
Jonathan Cohen; Jennifer Schramm; Aspasia Christy,
Appellants in 20-2551
Whirlpool Corporation,
Appellant in 20-2661
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:12-cv-00089)
District Judge: Hon. Kevin C. McNulty
_______________
Argued: May 24, 2022
Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges.
(Filed: September 29, 2023)
_______________
Neal J. Deckant [ARGUED]
BURSOR & FISHER
1990 N. California Boulevard, Suite 940
Walnut Creek, CA 94596
Scott A. Bursor
BURSOR & FISHER
701 Brickell Avenue, Suite 1420
Miami, FL 10019
Counsel for Appellants/Cross-Appellees
Antonio Vozzolo
VOZZOLO LLC
345 Route 17 S.
Upper Saddle River, NJ 07548
Counsel for Appellants
2
Louis Chaiten
James R. Saywell [ARGUED]
JONES DAY
901 Lakeside Avenue
North Point
Cleveland, OH 44114
Counsel for Appellee/Cross-Appellant Whirlpool
Corporation
David R. Kott
MCCARTER & ENGLISH
100 Mulberry Street
Four Gateway Center, 14th Floor
Newark, NJ 07102
Allison R. McLaughlin
Eric L. Robertson
WHEELER TRIGG O’DONNELL LLP
370 17th Street, Suite 4500
Denver, CO 80202
Counsel for Appellee/Cross-Appellant Whirlpool
Corporation and Appellees Sears Holdings
Corporation, Fry’s Electronics, Inc., and Lowe’s Home
Centers, LLC
Galen D. Bellamy
Michael T. Williams
WHEELER TRIGG O’DONNELL LLP
370 17th Street, Suite 4500
Denver, CO 80202
Counsel for Appellee/Cross-Appellant Whirlpool
Corporation, Appellees Sears Holdings Corporation
and Fry’s Electronics, Inc., and Cross-Appellant
Lowe’s Home Centers, LLC
3
Sidney S. Haskins, II [ARGUED]
KING & SPALDING
1180 Peachtree Street N.E., Suite 1600
Atlanta, GA 30309
Lisa B. Geraghty
STARR GERN DAVISON & RUBIN
105 Eisenhower Parkway, Suite 401
Roseland, NJ 07068
Counsel for Appellee Home Depot USA, Inc.
__________
OPINION OF THE COURT
__________
PHIPPS, Circuit Judge.
From its inception in 1992, the Energy Star Program has set
energy efficiency standards for various categories of products
and permitted approved products to bear the Energy Star logo.
Three models of top-loading clothes washers were approved to
display that logo, and they did so from their entry into the
market in April 2009 until their discontinuation in December
2010. But under one method of measurement, those machines
did not meet the Program’s energy- and water-efficiency
standards. Although those clothes washers did satisfy the
Program’s standards under another measurement technique,
which the Program previously endorsed, Program guidance
from July 2010 disapproved of that method. Still, those models
were permitted to display the Energy Star logo until February
2011.
4
In January 2012, consumers in several states who had
purchased those models commenced this suit as a putative class
action in the District Court against the manufacturer of the
clothes washers and retailers that sold those machines.
Plaintiffs brought several claims, including counts for breach
of express warranty and for violations of state consumer-
protection statutes. All of the claims related to the allegedly
wrongful display of the Energy Star logo on the three models
that did not meet Energy Star standards under the July 2010
Program guidance. The District Court certified a class action
against the manufacturer, but it declined to certify a class for
the claims against the retailers. At summary judgment, the
District Court rejected all remaining claims by the class and by
the named plaintiffs, including the express-warranty and
consumer-protection claims.
Plaintiffs appealed to dispute two components of the
District Court’s summary-judgment ruling. They now argue,
first, that the District Court erred in denying their claims for
breach of express warranty. And second, they challenge the
District Court’s judgment rejecting their statutory consumer-
protection claims.
The manufacturer cross-appealed to contest class
certification, but it conditioned that cross-appeal on plaintiffs’
successful appeal of their class claims.
On de novo review, there is no genuine dispute of material
fact, and the manufacturer and the retailers are entitled to
judgment as a matter of law on the appealed issues. That
conclusion obviates the need to address the manufacturer’s
cross-appeal, so we will affirm the judgment of the District
Court.
5
I. BACKGROUND
A. The Origins of the Energy Star Program and
Its Applicability to Clothes Washers
1. Energy Star Standards and Testing
The United States Environmental Protection Agency
developed the Energy Star Program in response to the 1990
Amendments to the Clean Air Act. That legislation provided
further direction for a previously authorized research and
development program1 by requiring the EPA to “conduct a
basic engineering research and technology program to develop,
evaluate, and demonstrate nonregulatory strategies and
technologies for air pollution prevention.” Pub. L. No. 101-
549, tit. IX, sec. 901(c), § 103(g), 104 Stat. 2399, 2703
(Nov. 15, 1990) (codified at 42 U.S.C. § 7403(g)). As part of
its response to that mandate, the EPA introduced the Energy
Star Program in 1992 “as a voluntary labeling program
designed to promote – and allow consumers to identify –
1
In amending the Clean Air Act of 1963, Pub. L. No. 88-206,
77 Stat. 392 (Dec. 17, 1963), through the Air Quality Act of
1967, Congress directed the Secretary of the Department of
Health, Education, and Welfare to “establish a national
research and development program for the prevention and
control of air pollution.” Pub. L. No. 90-148, sec. 2, § 103(a),
81 Stat. 485, 486 (Nov. 21, 1967). And with the creation of the
EPA in 1970, the Administrator of the EPA assumed
responsibility for implementing that research and development
program. See Reorganization Plan No. 3 of 1970, § 2(a)(3),
84 Stat. 2086, 2087, 2089 (July 9, 1970); Reorganization Plan
No. 3 of 1970, 35 Fed. Reg. 15,623, 15,624 (Oct. 6, 1970); see
also 42 U.S.C. § 1857b(a) (1970) (“The Administrator shall
establish a national research and development program for the
prevention and control of air pollution . . .” (emphasis added)
(current version codified at 42 U.S.C. § 7403(a)).
6
energy-efficient computers and monitors.” Gov’t
Accountability Off., Energy Star Program 1, 3 (2010).2
The Energy Star Program expanded over time to cover
additional categories of products. In 1996, the EPA entered a
Memorandum of Cooperation with the United States
Department of Energy (‘DOE’) for overseeing the Energy Star
Program with respect to eight product categories, including
clothes washers.3 With the benefit of its experience in
developing methods for measuring the energy efficiency of
clothes washers for another program,4 DOE in 1997 announced
an updated testing method, referred to as the ‘J1 Test
Procedure,’ for measuring the two standards the Energy Star
2
See also 74 Fed. Reg. 25,732, 25,733 (May 29, 2009) (“EPA
introduced ENERGY STAR in 1992 to label energy efficient
computers.”); S. Hrg. 110-1095, The Implications of the
Supreme Court’s Decision Regarding EPA’s Authorities with
Respect to Greenhouse Gases Under the Clean Air Act:
Hearing Before the S. Comm. on Env’t & Pub. Works,
110th Cong. 24 (Apr. 24, 2007) (statement of Stephen L.
Johnson, Administrator, Env’t Prot. Agency).
3
See Dep’t of Energy & Env’t Prot. Agency, Memorandum of
Cooperation on Energy Efficient, Environmentally Beneficial
Buildings (1996) (included as exhibit to Global Climate
Change: Joint Hearing Before the Subcomm. on Energy Rsch.,
Dev., Prod. and Regul. of the S. Comm. on Energy and Nat.
Res. and Subcomm. on Nat’l Econ. Growth, Nat. Res., and
Regul. Affs. of the H. Comm. on Gov’t Reform, 106th Cong.
64–66 (1999)); see also S. Hrg. 110-1095, supra, at 24; U.S.
Dep’t of Energy, Off. of Inspector Gen., Audit Report: The
Department’s Management of the ENERGY STAR Program 1
(Oct. 14, 2009).
4
See Energy Conservation Program for Consumer Products:
Clothes Washer Energy Conservation Standards, 66 Fed. Reg.
3314, 3316–17 (Jan. 12, 2001) (“Federal test procedures for
clothes washers were first established in 1977.”).
7
Program used to assess the energy- and water-efficiency of
clothes washers: the Modified Energy Factor and the Water
Factor.5 The J1 Test Procedure went into effect in 2004.6
With the Energy Star Program’s expansion, it received
formal recognition and greater definition in statute. The
Energy Policy Act of 2005 preserved Energy Star’s character
as a voluntary labeling program for energy-efficient products:
There is established within the Department of
Energy and the Environmental Protection
Agency a voluntary program to identify and
promote energy-efficient products and buildings
in order to reduce energy consumption, improve
energy security, and reduce pollution through
voluntary labeling of, or other forms of
communication about, products and buildings
that meet the highest energy conservation
standards.
5
See Energy Conservation Program for Consumer Products:
Test Procedure for Clothes Washers and Reporting
Requirements for Clothes Washers, Clothes Dryers, and
Dishwashers, 62 Fed. Reg. 45,484, 45,508 (Aug. 27, 1997); see
also 10 C.F.R. pt. 430, subpt. B, app. J1, §§ 4.2.3, 4.4 (2004)
(defining “modified energy factor” and “water consumption
factor”).
6
See 10 C.F.R. pt. 430, subpt. B, app. J1 (2004) (“The
provisions of this appendix J1 shall apply to products
manufactured beginning January 1, 2004.”); Energy
Conservation Program for Consumer Products: Test Procedure
for Clothes Washers, 68 Fed. Reg. 62,198, 62,198 (Oct. 31,
2003) (announcing a direct final rule for amendments to the J1
Test Procedure to take effect on January 1, 2004, along with
the new standards).
8
Pub. L. No. 109-58, sec. 131, § 324A(a), 119 Stat. 594, 620
(Aug. 8, 2005) (codified at 42 U.S.C. § 6294a(a)). The Act
also identified the responsibilities that accompanied the
Program’s administration. Those duties, which were divided
as agreed between the EPA and DOE, see id. § 6294a(b),
included working to enhance public awareness of the Energy
Star label, see id. § 6294a(c)(2), preserving the integrity of the
label, see id. § 6294a(c)(3), and “promot[ing] Energy Star
compliant technologies as the preferred technologies in the
marketplace for . . . achieving energy efficiency [and] reducing
pollution,” id. § 6294a(c)(1).
Several provisions of the Energy Policy Act also accounted
for anticipated innovation in energy-efficient technologies.
Congress required the agencies to “regularly update Energy
Star product criteria for product categories,” id. § 6294a(c)(4),
which required an explanation of the changes, see id.
§ 6294a(c)(6), the solicitation of comments from interested
parties, see id. § 6294a(c)(5), as well as an agency response to
those comments, see id. § 6294a(c)(6). And, unless specified
otherwise by one of the agencies, 270 days’ notice was
required before a “new or a significant revision to a product
category, specification, or criterion” could take effect. Id.
§ 6294a(c)(7).
The Energy Policy Act further directed DOE to issue new
qualifying levels for clothes washers to take effect in 2009. See
id. § 6294a(d). DOE did so, and between 2009 and 2011, the
Energy Star Program required a Modified Energy Factor of at
least 1.80 and a Water Factor of no more than 7.50. See Energy
Conservation Program: Energy Conservation Standards for
Residential Clothes Washers, 77 Fed. Reg. 32,308, 32,332–33
tbl. IV-5 (May 31, 2012) (describing historical Energy Star
standards for top-loading clothes washers). By comparison,
regulations at the time for standard clothes washers
manufactured on or after January 1, 2007, required a Modified
Energy Factor of at least 1.26 – considerably less than the
Energy Star standard. See 10 C.F.R. § 430.32(g)(3) (2007).
9
And those regulations did not impose a Water Factor
requirement on standard clothes washers. See id.7
2. The Energy Star Logo and Its
Registration as a Certification Mark
Product labeling is a key component of the Energy Star
Program. In the 1990s, the EPA had developed logos for
manufacturers to identify their qualifying products as Energy
Star certified. See ENERGY, Reg. No. 2074946 (filed Apr. 12,
1995, registered July 1, 1997). And in 2008, the EPA
introduced the modern version of the Energy Star logo, which
“consist[ed] of a cyan blue box with white writing and trim
containing the word energy and a star below a curved line, with
the words ‘ENERGY STAR’ in white in a small cyan box
below the design.” ENERGY ENERGY STAR, Reg.
No. 3569551, Application at 1 (June 11, 2008) (hereinafter
‘2008 Energy Star Application’). The logo had the following
appearance:
Id.The EPA applied to register that version of the Energy Star
logo as a certification mark with the United States Patent and
Trademark Office.8 In its application, the EPA included a
7
Congress codified the Modified Energy Factor requirement
in statute for clothes washers manufactured on or after
January 1, 2011, and it added a Water Factor requirement of no
more than 9.50. See 42 U.S.C. § 6295(g)(9)(A) (2007).
8
See 15 U.S.C. § 1127 (defining “certification mark,” in
relevant part, as “any word, name, symbol, or device, or any
10
certification statement that explained that the logo would be
“used by authorized persons” to certify “that the items are more
energy efficient than most items sold in the same [category].”
2008 Energy Star Application at 1. And the EPA included with
its application “a copy of the standards that determine whether
others may use the certification mark on their goods,” as well
as a statement that it “exercise[d] legitimate control over the
use of the mark.” 37 C.F.R. § 2.45(a) (2007). The EPA’s
submitted standards incorporated by reference the Energy Star
Program’s Modified Energy Factor and Water Factor
benchmarks, which, at the time, were measured according to
the J1 Test Procedure. 2008 Energy Star Application at 1.
On February 3, 2009, the Patent and Trademark Office
granted the EPA’s application and registered the Energy Star
mark for a ten-year period. 2008 Energy Star Application at 1;
see generally 15 U.S.C. § 1058(a) (providing a ten-year
duration for registered marks).9 As an owner of a certification
mark, the EPA could allow others to use the mark to indicate
characteristics of their products, such as their “origin, material,
mode of manufacture, [or] quality.” 15 U.S.C. § 1127; see
generally Terry E. Holtzman, Tips From the Trademark
combination thereof – (1) used by a person other than its
owner, or (2) which its owner has a bona fide intention to
permit a person other than the owner to use in commerce and
files an application to register on the principal register
established by this chapter, to certify regional or other origin,
material, mode of manufacture, quality, accuracy, or other
characteristics of such person’s goods or services or that the
work . . . .”).
9
Registration of a certification mark entitles the registrant to
the protections that registered trademarks receive. See
15 U.S.C. § 1054; see also Int’l Info. Sys. Sec. Certification
Consortium, Inc. v. Sec. Univ., LLC, 823 F.3d 153, 159–60 (2d
Cir. 2016); Am. Bd. of Psychiatry & Neurology, Inc. v.
Johnson-Powell, 129 F.3d 1, 3 (1st Cir. 1997).
11
Examining Operation: Certification Marks: An Overview,
81 Trademark Rep. 180, 183 (1991) (“[A] license agreement is
essential to the function of a certification mark.”); cf. 15 U.S.C.
§ 1064(5)(D) (allowing a petition to cancel a certification mark
if the registered owner “discriminately refuses to certify”
qualifying goods or services).
To control the use of the Energy Star logo on clothes
washers, DOE, as part of its cooperation with the EPA, entered
partnership agreements with manufacturers seeking to enroll
their machines in the Program.10 Under the model partnership
agreement effective March 7, 2008, manufacturers had to
conduct in-house testing of their own clothes washers
according to the J1 Test Procedure for those machines to
qualify for the Program.11 If, after self-testing, a machine
satisfied the Program’s Modified Energy Factor and Water
Factor standards, DOE would authorize the manufacturer to
display the Energy Star logo on that model and would share
additional Program resources, such as marketing materials.12
Still, as the owner of the certification mark, the EPA had
“an affirmative obligation . . . to monitor the activities of those
who use the mark.” Midwest Plastic Fabricators, Inc. v.
Underwriters Labs. Inc., 906 F.2d 1568, 1572 (Fed. Cir.
10
See ENERGY STAR Program Requirements and Criteria for
Clothes Washers 4 (Mar. 7, 2008); see also U.S. Dep’t of
Energy, Off. of Inspector Gen., Audit Report: The
Department’s Management of the ENERGY STAR Program 1
(Oct. 14, 2009) (explaining that under the 1996 Memorandum
of Cooperation, DOE assumed responsibility for ensuring the
proper use of the Energy Star logo on clothes washers).
11
See ENERGY STAR Program Requirements and Criteria for
Clothes Washers 4.
12
Gov’t Accountability Off., Energy Star Program 4 (2010).
12
1990).13 And despite allowing manufacturers to test their own
machines, DOE retained discretion to “conduct tests on
products that are referred to as ENERGY STAR qualified.”
ENERGY STAR Program Requirements and Criteria for
Clothes Washers 1 (Mar. 7, 2008).
3. The Announced End of the Self-
Testing Era and the Launch of a Pilot
Program for Independent Verification
On September 30, 2009, the EPA and DOE decided to exert
greater control over the use of the Energy Star logo. Through
a Memorandum of Understanding, which superseded the 1996
Memorandum of Cooperation, they announced that “[a]ll
products will be required to be tested in an accredited
laboratory and qualifying product information be submitted to
the government before the product can be qualified as
ENERGY STAR.” Dep’t of Energy & Env’t Prot. Agency,
Memorandum of Understanding on Improving the Energy
Efficiency of Products and Buildings 5 (Sept. 30, 2009).14
13
See also U.S. Patent & Trademark Off., Trademark Manual
of Examining Procedure § 1306.01(a), at 1300–37 (5th ed.
Sept. 2007) (“The owner of a certification mark does not
produce the goods or perform the services in connection with
which the mark is used, and thus does not control their nature
and quality. . . . What the owner of the certification make does
control is use of the mark by others on their goods or services.
This control consists of taking steps to ensure that the mark is
applied only to goods or services that contain the
characteristics or meet the requirements that the certifier/owner
has established or adopted for the certification.”); accord U.S.
Patent & Trademark Off., Trademark Manual of Examining
Procedure § 1306.01(a), at 1300–39 (8th ed. Oct. 2011).
14
See also Gov’t Accountability Off., ENERGY STAR:
Providing Opportunities for Additional Review of EPA’s
Decisions Could Strengthen the Program 7 (Sept. 2011)
13
That announcement of independent-laboratory testing did
not provide a precise end date for the era of manufacturer self-
testing. But in August 2010, DOE launched a pilot program
“to verify the energy efficiency and water-use characteristics
of selected ENERGY STAR products through laboratory
testing.” Dep’t of Energy, ENERGY STAR Appliance
Verification Testing – Pilot Program Summary Report 1
(Feb 3, 2012). Under that pilot program, DOE would select
Energy Star-designated products for testing at independent
laboratories. See Dep’t of Energy, FAQ for: ENERGY STAR
Verification Testing Pilot Program 1 (Dec. 2010).
The pilot program had two stages of verification testing. At
Stage I, DOE would spot check a single unit of an Energy Star
product at an independent laboratory. If the product’s
performance was within five percent of the relevant
specification for the Energy Star Program, DOE would take no
further action. See id. at 3. Products that failed at Stage I could
proceed, at the manufacturer’s election, to Stage II, which
involved independent testing of between four and eight units
to confirm whether they met Energy Star standards. See id. at
4. If a model also failed Stage II testing, DOE would refer the
matter to the EPA for “appropriate action,” which could
include formal disqualification of the model from the Energy
Star Program. App. 1000 ¶¶ 70–71 (Pls.’ Statement of
Additional Material Facts).
(“Before the MOU, the program generally relied on a self-
certification process for manufacturers to qualify products for
the Energy Star label. Under the MOU, all products are now
required to be tested in an accredited laboratory, and the results
submitted to EPA before the products can be qualified for the
Energy Star label.”).
14
B. Whirlpool’s Enrollment of Maytag-Branded
Clothes Washers in the Energy Star Program
Whirlpool, a Delaware corporation with a principal place
of business in Benton Harbor, Michigan, is one of the world’s
largest manufacturers of home appliances. In 2006, it acquired
Maytag Corporation, another appliance manufacturer.
Afterwards, Whirlpool continued production of clothes
washers and other products under the Maytag brand. In
recognition of consumer willingness to pay premiums for
Energy Star-labeled appliances, Whirlpool also sought to have
some of its Maytag-branded clothes washers qualify for the
Energy Star Program. But Whirlpool identified an ambiguity
in the J1 Test Procedure as applied to some models of Maytag-
branded top-loading clothes washers.
That procedure required measuring the capacity of a top-
loading clothes washer by sealing its “clothes container” with
a plastic sheet and filling it with “water to its uppermost edge.”
10 C.F.R. pt. 430, subpt. B, app. J1, §§ 3.1.2, 3.1.4 (2004).
Certain top-loading Maytag-branded clothes washers,
however, had four different fill levels:
15
App. 938 ¶ 165 (Pls.’ Resp. to Defs.’ Statement of Material
Facts). And without specific guidance in the regulations, it was
unclear which of those four levels corresponded to the
uppermost edge of the clothes container. See Energy
Conservation Program for Consumer Products: Test Procedure
for Residential Clothes Washers, 75 Fed. Reg. 57,556, 57,574
(Sept. 21, 2010) (noting that the existing test procedures “could
lead to multiple capacity measurements”). Yet the capacity of
the clothes container was critical to meeting the qualifying
levels for the Energy Star Program. A larger clothes-container
capacity would more readily satisfy the Modified Energy
Factor and the Water Factor thresholds needed for Energy Star
compliance.
To enable more of its Maytag-branded clothes washers to
qualify for the Energy Star Program, Whirlpool sought to use
the top of the tub cover, known as ‘Fill Level 4,’ in self-testing
those machines. So in March 2007, Whirlpool submitted a
petition for waiver to DOE to allow its use of Fill Level 4 for
measuring the capacity of its top-loading clothes washers. See
generally 10 C.F.R. § 430.27 (2007). Two months later, a
DOE representative, Bryan Berringer, responded in an email
explaining that the petition was unnecessary because
Whirlpool’s proposed “measurement of the clothes container
capacity to the upper edge of the tub cover” was already
allowed under the J1 Test Procedure. Email from Bryan
Berringer, U.S. Dep’t of Energy to J.B. Hoyt, Whirlpool
(May 14, 2007) (App. 851).
After receiving that email, Whirlpool used Fill Level 4 to
test two models of its top-loading Maytag Centennial clothes
washers: the C6-0 and the C6-1. At Fill Level 4, both models
met the Modified Energy Factor and Water Factor thresholds
for the Energy Star Program.15 Based on those test results,
15
Whirlpool’s self-testing reported the C6-0 as having a
Modified Energy Factor of 1.852 and a Water Factor of 7.108,
16
Whirlpool considered three of its Maytag Centennial models –
the two tested along with the C7-0 model, which had the same
energy profile as the C6-1 – to qualify for the Energy Star
Program. Then, in April 2009, Whirlpool began shipping those
three models to retailers with an Energy Star logo attached to
each machine’s control panel.
But in May 2010, DOE announced its intention to remove
the ambiguity in the J1 Test Procedure’s reference to the
‘uppermost edge of the clothes container.’ For the uppermost
edge, DOE proposed using “the highest horizontal plane that a
clothes load could occupy,” which corresponded to Fill
Level 3, the innermost diameter of the tub cover. App. 938
¶ 166 (Pls.’ Resp. to Defs.’ Statement of Material Facts).
Despite asserting that a comment period was unnecessary – on
the theory that the guidance qualified as an interpretation of its
existing regulations, see 5 U.S.C. § 553(b)(A) – DOE sought
public comments on the proposed rule. See Dep’t of Energy,
Guidance for Test Procedures for Clothes Washers 1 (July 6,
2010). Whirlpool responded and advocated for a reading of
the J1 Test Procedure that used Fill Level 4, which would
produce a larger volume for the clothes container than Fill
Level 3 and thus facilitate qualification for the Energy Star
Program.
On July 6, 2010, DOE announced its final interpretation of
the uppermost edge of the clothes container. It construed that
term to describe Fill Level 3, or “the highest point of the inner-
most diameter of the tub cover.” Id. DOE did not specify a
time for compliance with its interpretation of the J1 Test
Procedure, but under the Energy Policy Act, DOE had to
provide 270 days’ lead time before a “significant revision to a
product category, specification, or criterion” could take effect.
42 U.S.C. § 6294a(c)(7).
and the C6-1 as having a Modified Energy Factor of 1.848 and
a Water Factor of 7.065.
17
In response to DOE’s new interpretation, Whirlpool began
retesting all of its then-existing top-loading clothes washers.
That undertaking required over 2,000 hours of laboratory time.
A few months later, in September 2010, in administering its
pilot program for independently verifying Energy Star
compliance, DOE selected Whirlpool’s Maytag Centennial
C6-1 model for testing. That model was similar in energy- and
water-efficiency to the C6-0 model according to Whirlpool’s
self-testing, and it had the same energy profile as the C7-0
model.
Because the pilot program commenced after the July 6
guidance, the independent laboratory tested the machine when
operated below Fill Level 4. But, in self-testing the C6-1
model prior to the DOE’s interpretation, Whirlpool had used
Fill Level 4.
On September 20, 2010, DOE notified Whirlpool of the
Stage I results. The independent laboratory determined that
the C6-1 unit did not fall within five percent of the Energy Star
Program’s efficiency requirements. Accordingly, the C6-1
model failed Stage I testing for Energy Star compliance.
At Whirlpool’s election, the testing proceeded to Stage II
of the pilot program. The independent laboratory examined
four additional C6-1 units and determined that none of them
satisfied either criterion for Energy Star compliance. But in
notifying Whirlpool of those results on January 19, 2011, DOE
stated that the C6-1 model “will remain designated as
ENERGY STAR qualified” until February 9, 2011. App. 956
¶ 229 (Pls.’ Resp. to Defs.’ Statement of Material Facts). Even
that date was less than 270 days from DOE’s July 6 guidance.
Whirlpool did not object to having less than 270 days to
comply with the DOE’s new interpretation of the J1 Test
Procedure. Rather, in December 2010, Whirlpool discontinued
manufacturing its Maytag Centennial C6-0, C6-1, and C7-0
18
clothes washers. On May 7, 2012, the EPA disqualified those
models from the Energy Star Program.
Altogether, Whirlpool had shipped nearly 175,000 units of
the three models to retailers in seven states: California, Florida,
Indiana, New Jersey, Ohio, Texas, and Virginia. Charlene
Dzielak and other named plaintiffs, who resided in those states,
each purchased one of the units between November 2009 and
December 2010.
II. PROCEDURAL HISTORY &
GROUNDS FOR JURISDICTION
On January 5, 2012, Dzielak and one of the other named
plaintiffs initiated this class action against Whirlpool and two
of the retailers who had sold the company’s Maytag Centennial
clothes washers. Those retailers were Lowe’s Companies, Inc.
and Sears Holdings Corporation. As amended in July 2014,
the complaint added named plaintiffs and sued three other
retailers: Fry’s Electronics, Inc., The Home Depot, Inc., and
Appliance Recycling Centers of America, Inc.
All but one of the fourteen counts in the amended complaint
asserted claims under state law. Three of the state-law counts
were against all of the defendants for common-law causes of
action: breach of express warranty, breach of the implied
warranty of merchantability, and unjust enrichment. The other
state-law counts were against Whirlpool and the in-state
retailers for violations of the consumer-protection statutes of
the states in which the named plaintiffs resided.
The District Court had original jurisdiction over those state-
law claims under the Class Action Fairness Act. The class
included at least 100 persons, see 28 U.S.C. § 1332(d)(5)(B),
and it satisfied the minimal diversity requirement as the state
citizenship of at least one member of the plaintiff class differed
19
from the state citizenship of at least one defendant. 16 See id.§ 1332(d)(2)(A). Also, the class sought relief that was not to a
legal certainty worth $5 million or less. See id. § 1332(d)(2);
Frederico v. Home Depot, 507 F.3d 188, 193–99 (3d Cir.
2007).
Through a series of three motions to dismiss – in response
to the original complaint and two amendments – Whirlpool and
the retailer defendants challenged the plausibility of every
count, including the lone claim under federal law pursuant to
the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1).
See Fed. R. Civ. P. 12(b)(6). After the District Court’s rulings
on those motions, the Magnuson-Moss claims and some state-
law claims were dismissed without prejudice, and the unjust
enrichment claims against Whirlpool were dismissed with
prejudice.17 Several state-law claims remained, including
those for breach of express warranty and those under the
California, Florida, Indiana, New Jersey, Ohio, and Texas
consumer-protection statutes.18
16
The putative class members were citizens of California,
Florida, Indiana, Michigan, New Jersey, Ohio, Texas, and
Virginia, and the defendants were citizens of California,
Delaware, Georgia, Illinois, Michigan, Minnesota, and North
Carolina.
17
One of the named plaintiffs, Jeffery McLenna, who sought
to represent a subclass of Michigan purchasers, voluntarily
dismissed all his claims under Federal Rule of Civil Procedure
41(a)(1)(A)(i).
18
The other claims that survived the motion-to-dismiss stage
were the claims for breach of the implied warranty of
merchantability by the plaintiffs from Indiana, New Jersey,
Texas, and Virginia and the unjust enrichment claims against
the retailers on behalf of the plaintiffs from California, Indiana,
New Jersey, Ohio, Texas, and Virginia.
20
The case proceeded to discovery on the surviving claims,
and plaintiffs moved to certify a damages class. See Fed. R.
Civ. P. 23(b)(3). After analyzing the requirements for such a
class under Rule 23(a) and (b)(3), the District Court certified a
class, which included subclasses by state, against only
Whirlpool.19 When combined with the District Court’s prior
rulings, each of the subclasses could pursue claims for breach
of an express warranty against Whirlpool under a price-
premium damages theory. And the subclasses in California,
Florida, Indiana, New Jersey, Ohio, and Texas could seek
similar damages under those states’ consumer-protection
statutes against Whirlpool.
Whirlpool and three of the five retailer defendants –
Lowe’s, Fry’s Electronics, and Home Depot – moved for
summary judgment on the remaining class and individual
claims. Whirlpool also moved to decertify the class.
The District Court granted the summary-judgment motions
and denied Whirlpool’s decertification motion as moot. See
Dzielak v. Whirlpool Corp., 2019 WL 6607220, at *27 (D.N.J.
Dec. 5, 2019). As a first step in evaluating the non-statutory
claims, the District Court conducted a choice-of-law analysis
and applied the substantive law of New Jersey, the forum state.
See id. at *10–11. With respect to the claims for breach of an
express warranty, the District Court explained that the Energy
Star logo may have warranted that Whirlpool’s clothes washers
were “environmentally friendlier” than standard models and
“met federal standards of efficiency,” id. at *13, but it
concluded that plaintiffs did not establish that the three models
failed to conform to any such affirmation, promise, or
description at the time they were sold, see id. at *14–15. In
rejecting the claim for breach of the implied warranty of
merchantability, the District Court held that plaintiffs did not
19
Whirlpool sought immediate appellate review of the class-
certification order under Rule 23(f). This Court denied that
petition.
21
demonstrate that the models were unfit for their intended
purpose. See id. at *16–17. The District Court also concluded
that a reasonable jury could not find that the retailer defendants
were unjustly enriched from selling the washers. See id. at *17.
And without evidence of a false or misleading statement
attributable to Whirlpool or the retailers, the District Court
rejected plaintiffs’ claims under the state consumer-protection
statutes. See id. at *18–27.
The District Court’s order granting summary judgment
further required plaintiffs to show cause why the ruling should
not apply to one of the two defendants that did not move for
summary judgment – Appliance Recycling Centers of
America. Plaintiffs did not object, so the District Court entered
an order extending its summary-judgment ruling to all
defendants while recognizing that plaintiffs “preserv[ed] all
substantive objections” thereto. D. Ct. Dkt., ECF No. 363, at
1 (Dec. 11, 2019). With that, the District Court made clear that
“[j]udgment is final as to all parties and claims.” Id. at 2.
Plaintiffs then sought reconsideration of the ruling, and the
District Court denied that motion.
After those rulings, plaintiffs timely appealed, and
Whirlpool timely cross-appealed.
Whirlpool then moved to dismiss the appeals for lack of
appellate jurisdiction. It argued that the only applicable basis
for appellate jurisdiction was the final-order doctrine, see
28 U.S.C. § 1291, under which “an order which terminates
fewer than all claims, or claims against fewer than all parties,
does not constitute a ‘final’ order for purposes of appeal[.]”
Carter v. City of Philadelphia, 181 F.3d 339, 343 (3d Cir.
1999). And despite a contrary statement in the District Court’s
opinion, Sears Holdings Corporation did not move for
summary judgment because it had filed a voluntary petition for
bankruptcy on October 15, 2018, and was therefore subject to
the Bankruptcy Code’s automatic stay. See 11 U.S.C.
§ 362(a)(1). Thus, the remaining claims against Sears – which
22
were claims by two named plaintiffs, Charles Beyer and
Shelley Baker, for breaches of express and implied warranties,
unjust enrichment, and violations of California and Indiana
consumer-protection statutes – were left unresolved by the
District Court.
Without more, that incompleteness due to the operation of
the automatic stay would prevent the District Court’s order
from being final.20 See Mar. Elec. Co. v. United Jersey Bank,
959 F.2d 1194, 1206 (3d Cir. 1991) (explaining that absent
relief from a bankruptcy stay, “judicial actions and proceedings
against the debtor are void ab initio” regardless of “whether the
court finds for or against the debtor” (emphasis removed)).
Still, an order resolving fewer than all claims “may become
final for the purposes of appeal where a plaintiff voluntarily
and finally abandons the other claims in the litigation.” Bethel
20
The District Court’s order was otherwise sufficient to
establish the finality of the proceedings for purposes of
28 U.S.C. § 1291. Although its prior dismissal of plaintiffs’
Magnuson-Moss claims invited plaintiffs to amend their
complaint for a third time, plaintiffs did not avail themselves
of that opportunity. Instead, plaintiffs elected to litigate their
remaining state-law claims against the defendants to the end of
the summary-judgment stage. So by finally resolving each of
those claims (save for the ones against Sears) the District
Court’s order otherwise “accomplish[ed] all that the parties
asked the court to accomplish[.]” Aluminum Co. of Am. v.
Beazer E., Inc., 124 F.3d 551, 560 (3d Cir. 1997). Similar
reasoning applies to the named plaintiff from Michigan,
McLenna, who removed himself as a party to the suit through
a Rule 41 dismissal without prejudice of all of his claims
against all defendants before the District Court’s order
disposing of all remaining claims against all remaining parties.
The without-prejudice nature of that dismissal does not
undermine the finality of the District Court’s summary-
judgment orders for purposes of this Court’s appellate
jurisdiction under 28 U.S.C. § 1291.
23
v. McAllister Bros., 81 F.3d 376, 382 (3d Cir. 1996); see also
Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 246 (3d
Cir. 2013). That rule applies even when a plaintiff abandons
outstanding claims through representations made on appeal,
such as through appellate briefing or statements made at oral
argument, so long as the abandonment is final and unequivocal.
See Erie Cnty. Retirees Ass’n v. Cnty. of Erie, 220 F.3d 193,
201–02 (3d Cir. 2000); Bethel, 81 F.3d at 382. And here, in
response to Whirlpool’s jurisdictional challenge, Beyer and
Baker notified this Court that they “formally abandon their
individual claims against Sears.” Pls.’ Resp. to Mot. to
Dismiss at 12 (emphasis removed). That representation
suffices to convert the District Court’s ruling into a final
decision appealable under § 1291. See Tiernan v. Devoe,
923 F.2d 1024, 1031 (3d Cir. 1991). Accordingly, Whirlpool’s
motion to dismiss for lack of appellate jurisdiction will be
denied.
III. DISCUSSION
In their opening brief, plaintiffs raise two challenges to the
entry of summary judgment. First, they contend that as a
matter of law the District Court erred in rejecting their breach-
of-express-warranty claims against Whirlpool and the retailers.
They argue that the Energy Star logo warranted that
Whirlpool’s clothes washers met the Energy Star Program’s
Modified Energy Factor and Water Factor standards when
tested under the J1 Test Procedure using Fill Level 3. Second,
plaintiffs assert that genuine disputes of material fact prevent
summary judgment on their claims against Whirlpool and the
retailers for breaches of express warranty and for violations of
the state consumer-protection statutes.
As elaborated below, those arguments do not succeed. No
material facts are genuinely disputed, and the District Court’s
entry of summary judgment on the breach-of-express-warranty
and state consumer-protection claims was correct as a matter
of law. See Fed. R. Civ. P. 56(a); SodexoMAGIC, LLC v.
Drexel Univ., 24 F.4th 183, 203–04 (3d Cir. 2022) (explaining
24
that a factual dispute is ‘material’ when its resolution has “the
potential to affect the outcome of the suit,” and ‘genuine’ when
the evidence presented could allow “a reasonable jury [to]
return a verdict for the nonmoving party” (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))).21
A. The Claims for Breach of Express Warranty
No party disputes the District Court’s application of New
Jersey law to the claims for breach of express warranty. In
New Jersey, a claim for breach of express warranty consists of
four elements. The first three relate to the creation of the
warranty, and the last one defines breach:
1. A seller must make an affirmation of fact,
promise, or description related to goods or
21
The parties present two additional arguments, but neither
needs to be addressed on the merits. First, in its opening brief
as cross-appellant, Whirlpool argues that the class should not
have been certified because it does not satisfy the
predominance requirement for a damages class, see Fed. R.
Civ. P. 23(b)(3), and separately because plaintiffs’ damages
model does not fit with their theory of liability, see Comcast
Corp. v. Behrend, 569 U.S. 27, 34–38 (2013). But Whirlpool
conditions its challenge to class certification on plaintiffs
prevailing in their own appeal, and with the affirmation of the
District Court’s summary-judgment order, the condition for
Whirlpool’s cross-appeal is not satisfied. Second, plaintiffs, in
their reply brief, attempt to extend the arguments in their
opening brief to resurrect their claims for unjust enrichment
and breach of the implied warranty of merchantability. But by
not raising those challenges until their reply brief, plaintiffs
forfeited them. See In re Asbestos Prods. Liab. Litig. (No. VI),
873 F.3d 232, 237 (3d Cir. 2017). Regardless, those claims
could not succeed because they rely on the same unsuccessful
rationales presented in plaintiffs’ opening brief.
25
the seller must provide a sample or model of
goods;
2. The affirmation, promise, description,
sample, or model must serve as a basis of the
bargain between the seller and the buyer;
3. The buyer must accept the goods; and
4. The goods must not conform to the
affirmation, promise, description, sample, or
model.
See N.J. Stat. Ann. §§ 12A:2-313(1), 12A:2-714(2); Furst v.
Einstein Moomjy, Inc., 860 A.2d 435, 441 (N.J. 2004)
(explaining that damages for breach of an express warranty is
“the remedy for a buyer who has accepted defective goods”
(emphasis added)).
The parties dispute the first and fourth elements. Plaintiffs
argue that the Energy Star logo constitutes an affirmation,
promise, or description that a clothes washer satisfies Energy
Star standards when measured using Fill Level 3 and that
Whirlpool’s three models of Maytag clothes washers did not
do so. Whirlpool and the retailers respond that the logo is not
sufficiently concrete to make any affirmation, promise, or
description. And even if it did, they assert that the most the
Energy Star logo promised was generally better performance
relative to non-Energy Star washers.
New Jersey uses an objective test to determine whether a
statement by a seller constitutes an affirmation, promise, or
description that could form the basis of an express warranty.
As articulated by the New Jersey Supreme Court, a seller’s
statement does so “if it could fairly be understood, regardless
of [the seller’s] intent, to constitute an affirmation or
representation that the [goods] possessed a certain quality and
capacity relating to future performance.” Gladden v. Cadillac
26
Motor Car Div., Gen. Motors Corp., 416 A.2d 394, 397 (N.J.
1980); N.J. Stat. Ann. § 12A:2-313(2) (“It is not necessary to
the creation of an express warranty that the seller . . . have a
specific intention to make a warranty . . . .”); cf. Nester v.
O’Donnell, 693 A.2d 1214, 1220 (N.J. App. Div. 1997)
(looking to the “objective manifestations of the parties’ intent”
to determine the meaning of a contractual agreement). Thus,
under New Jersey law, for a statement to constitute an
affirmation, promise, or description that could form the basis
of an express warranty, that statement must be reasonably
understood as communicating that “the good sold will conform
to some standard which may be established by a model, a level
of quality, an assurance, a description[,] or a list of
specifications.” Liberty Lincoln-Mercury, Inc. v. Ford Motor
Co., 171 F.3d 818, 824 (3d Cir. 1999).
Even with that guidance, the questions of whether and to
what extent the Energy Star logo, as a certification mark,
creates an express warranty remain novel. But from the
parties’ briefing and the District Court proceedings, three
theories emerge. Those are described and analyzed below.
1. The Authorized-Use Theory: The Energy
Star Logo as Warranting the Department
of Energy’s Authorization.
The first, and narrowest, view is an authorized-use theory,
which the District Court described as a “branding” theory of
liability. Dzielak, 2019 WL 6607220, at *15. Under that
theory, the use of a certification mark indicates only that the
mark’s owner authorized the use of the mark in connection
with the user’s goods. Applied here, this theory would mean
that Whirlpool’s use of the Energy Star logo affirmed,
promised, or described nothing more than the EPA’s and
DOE’s authorization to use the logo in marketing and labeling
the three models of Maytag Centennial clothes washers.
But that warranty was not breached. At a minimum, the
display of a certification mark affirms, promises, or describes
27
that the owner of the mark has authorized the mark’s use in
connection with the labeled or marketed product. And here,
the clothes washers conformed to that affirmation, promise, or
description. DOE informed Whirlpool that the tested model,
the C6-1, would “remain designated as ENERGY STAR
qualified” until February 2011, App. 956 ¶ 229 (Pls.’ Resp. to
Defs.’ Statement of Material Facts), which was months after
any named plaintiff purchased any of the models. Because the
other two models had similar or identical energy profiles to the
C6-1, no reasonable jury could find that DOE did not permit
the use of the Energy Star logo on those three models at all
relevant times. See Cipollone v. Liggett Grp., Inc., 505 U.S.
504, 525 (1992) (“A manufacturer’s liability for breach of an
express warranty derives from, and is measured by, the terms
of that warranty.”).
2. The Certification-Statement Theory:
The Energy Star Logo as Warranting
Greater Efficiency Than Standard
Models.
The second approach, a certification-statement theory,
which in this context, the District Court termed the “energy
efficiency” theory, is more expansive. Dzielak, 2019 WL
6607220, at *15. It is grounded in the certification-statement
requirement for registration applications for certification
marks with the Patent and Trademark Office. By regulation,
an applicant must include a certification statement that
specifies “the conditions under which the certification mark is
used.” 37 C.F.R. § 2.45(a) (2007). And in its 2008 application
to register the Energy Star logo, the EPA’s certification
statement specified that the display of the logo indicates its
authorized use and that the corresponding product is “more
energy efficient than most items sold in the same category.”
2008 Energy Star Application at 1. Similarly, in depositions,
most of the named plaintiffs professed to understand the
28
Energy Star logo along these lines.22 Thus, under this theory,
the Energy Star logo warrants not only authorized use but also
greater energy efficiency than a standard model. See Dzielak,
2019 WL 6607220, at *15.
Such a conclusion, however, is an uneasy fit with the
structure of federal law on certification marks. Construing a
certification mark as warranting something more than
authorized use imposes joint responsibility for the accuracy of
the mark’s use on the mark’s owner and on its authorized users.
Yet the Lanham Act places that responsibility on only the
mark’s registered owner. See 15 U.S.C. § 1064(5)(A)
(subjecting a certification mark to cancellation if the registrant
“does not control, or is not able legitimately to exercise control
over, the use of such mark”); see also Midwest Plastic,
906 F.2d at 1572; 3 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition § 19:94 (5th ed. 2023)
(“[T]he certification mark owner should, through advertising,
convince buyers that the certification mark provides useful and
reliable information as to quality.” (emphasis added)). Thus,
it might not be reasonable to interpret a certification mark as a
warranty by the seller that its goods in fact conform to the
mark’s standards. Such a mark may, instead, communicate
nothing more than “that the goods have been certified as
meeting the standards set forth by the certifier.”
22
See, e.g., App. 982 ¶ 19 (Pls.’ Resp. to Defs.’ Statement of
Material Facts) (Kari Parsons testifying that “I knew that if I
saw the Energy Star label, that the machine, the washing
machine, was going to be efficient, was going to save money
and utilities, water and electricity”); id. at 983 ¶ 20 (Shelley
Baker testifying that the Energy Star logo meant that “if you
pay more for this machine, it will run at a more efficient rate
than one that is not Energy Star”); id. at 986 ¶ 26 (Jonathan
Cohen testifying that he thought his Energy Star-labeled
washing machine “was regulated or tested by what I assume to
be a government agency, and it was approved for energy
savings and water savings”).
29
Interprofession du Gruyere v. U.S. Dairy Exp. Council,
61 F.4th 407, 415–16 (4th Cir. 2023) (internal quotation marks
omitted) (emphasis added) (describing certification marks at a
general level but not opining on any theory of express-warranty
liability associated with the use of a certification mark); see
also Opticians Ass’n of Am. v. Indep. Opticians of Am.,
920 F.2d 187, 190 n.3 (3d Cir. 1990) (explaining that
certification marks can be used to certify that “products meet
the mark registrant’s standards”). To hold otherwise, at least
in the absence of fraud, would expose authorized users of a
certification mark to liability for the lax oversight or wrongful
approval of their products by the mark’s owner.23 That could
discourage use of the mark and pose an obstacle to the
“accomplishment and execution of the full purposes and
objectives” of the Lanham Act’s certification-mark provisions.
Wyeth v. Levine, 555 U.S. 555, 563–64 (2009) (quoting Hines
v. Davidowitz, 312 U.S. 52, 67 (1941)); see generally
15 U.S.C. §§ 1054, 1127. Instead, although this Circuit has not
had occasion to consider the issue, it may be that a party
aggrieved by an improper certification of a product could seek
redress from the mark’s owner – as opposed to the user of the
mark. See, e.g., U.S. Structural Plywood Integrity Coal. v. PFS
Corp., 2022 WL 953150, at *1, 40 (S.D. Fla. Mar. 30, 2022)
(allowing claims for false advertising under the Lanham Act
and for state-law negligence against the owner of a certification
mark for improper certification to proceed to trial).
23
If a user of the mark deceived the mark’s owner as to the
qualities of a product, imposing liability on the user may be
justified. Cf. 3 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition § 19:90 (5th ed. 2023)
(explaining that the unauthorized use of a certification mark
may amount to counterfeiting). When an owner of a
certification mark relies on the user for information about a
product, such as through self-testing, the user’s liability for the
erroneous use of the mark becomes a more difficult question.
30
It is unnecessary here to determine the legal viability of the
certification-statement theory. Even assuming for the sake of
argument that the display of the Energy Star logo on a clothes
washer did warrant that the machine was “more energy
efficient than most items sold in the same [category],” 2008
Energy Star Application at 1, the three models conformed to
that affirmation, promise, or description. Congress and DOE
developed baseline efficiency standards that all residential
clothes washers on the market were required to satisfy. See
42 U.S.C. § 6295(g)(9)(A) (2007); 10 C.F.R. § 430.32(g)(3)
(2007). And compared to those minimum standards, the three
Maytag Centennial models, even when tested at Fill Level 3,
consumed 46.1% less water and 34.3% less energy. That
corresponds to between 92% and 93% of the water and energy
savings of machines qualifying for the Energy Star Program at
Fill Level 3. Thus, even if the Energy Star logo did warrant
comparative energy efficiency, a reasonable jury could not
conclude that the three models failed to conform to that
warranty.
3. The Absolute-Compliance Theory:
The Energy Star Logo as Warranting
Satisfaction of the Program’s
Modified Energy Factor and Water
Factor Standards When Measured at
Fill Level 3.
The third theory of express warranty, which the District
Court rejected on plaintiffs’ motion for reconsideration, takes
the broadest view. This approach posits that the display of the
Energy Star logo on a clothes washer affirms, promises, or
describes that machine as meeting the Program’s Modified
Energy Factor and Water Factor requirements using the J1 Test
Procedure administered at Fill Level 3 per the DOE guidance
on July 6, 2010. Although the record lacks direct evidence that
consumers understood the logo in those precise terms, the
EPA’s registration application for the Energy Star logo
included, as required by regulation, “a copy of the standards
that determine whether others may use the certification mark
31
on their goods.” 37 C.F.R. § 2.45(a) (2007). So, like the
certification-statement theory, this approach rests on the open
legal question of the liability of a certification mark’s user for
the erroneous certification of a product by the mark’s owner.
But even if that issue is resolved in favor of imposing liability
on the mark’s user, plaintiffs could not prevail under the
absolute-compliance theory. Neither the Energy Star logo’s
ordinary meaning nor its established industry or regulatory
meaning allows a fair understanding that the logo affirmed,
promised, or described clothes washers as Energy Star
compliant when tested at Fill Level 3 rather than Fill Level 4.
Ordinary Meaning
The ordinary meaning of the Energy Star logo, which
applies to numerous categories of products, does not indicate
that clothes washers qualified for the Program when tested at
Fill Level 3. The information needed to read the logo as
warranting Program compliance at Fill Level 3 – the Energy
Star Program’s efficiency standards, the J1 Test Procedure, the
July 6 guidance, and appliance manufacturers’ pre-2010
testing practices – is well beyond the ken of an ordinary
purchaser. As a reference point, the named plaintiff with the
most detailed pre-litigation understanding of the Energy Star
Program did not possess that degree of technical
understanding.24 Similarly, one of plaintiffs’ own expert
witnesses opined that “[c]onsumers don’t understand the exact
technical details of the amount of energy efficiency.” Supp.
App. 368 (Dep. of Dr. Ramamirtham Sukumar).
24
App. 946 ¶¶ 196–97 (Pls.’ Resp. to Defs.’ Statement of
Material Facts) (summarizing deposition testimony from
Aspasia Christy that she understood the Energy Star logo to
warrant “about 50 percent savings in water and 37 percent
savings in electricity” but that she did not know of the J1 Test
Procedure or testing using the different possible fill levels).
32
Specialized Meaning
In Whirlpool’s view, the lack of evidence that ordinary
consumers understood the specific requirements of the Energy
Star Program clinches the case. But under New Jersey’s
adoption of the Uniform Commercial Code, “all descriptions
by merchants must be read against the applicable trade usages”
in assessing the scope of an express warranty. N.J. Stat. Ann.
§ 12A:2-313 cmt. 5. Accordingly, the use of a specialized term
or symbol can create an express warranty by incorporating an
established industry or regulatory meaning. See, e.g., Simpson
v. Widger, 709 A.2d 1366, 1371–72 (N.J. App. Div. 1998)
(examining the specialized or technical meaning of the term
“sound” when used to warrant the condition of a horse);
3 David Frisch, Anderson on the Uniform Commercial Code
§ 2-313:84 (3d. ed. 2022) (“A statement by the seller that the
product, a swimming pool, could be used commercially
constituted an express warranty that the product complied with
local regulations applicable to commercial use.”). And
certification marks, too, can be used to signal compliance with
industry or regulatory standards. See 15 U.S.C. § 1127;
Opticians Ass’n of Am., 920 F.2d at 190 n.3. Indeed, certain of
Whirlpool’s promotional materials characterized its display of
the Energy Star logo as representing its clothes washers’
compliance with federal standards of energy efficiency.
Nonetheless, for the relevant time period, the record is
barren of evidence that even under its industry meaning, the
Energy Star logo warranted that the clothes washers qualified
for the Program when tested at Fill Level 3. Ambiguities in the
testing parameters before the July 6 guidance and uncertainties
associated with its effective date prevented the guidance from
being fairly understood as changing the meaning of an Energy
Star logo displayed on clothes washers such that the logo
warranted successful testing at Fill Level 3.
Before the DOE guidance on July 6, 2010, the J1 Test
Procedure was ambiguous. DOE recognized that, without
additional clarification, the term ‘uppermost edge’ could be
33
fairly understood to refer to multiple different fill levels,
including Fill Level 3 and Fill Level 4. See Energy
Conservation Program for Consumer Products: Test Procedure
for Residential Clothes Washers, 75 Fed. Reg. 57,556, 57,559
(Sept. 21, 2010) (stating that the J1 Test Procedure permitted
“[d]ifferent allowable interpretations of the maximum water
fill level”); id. at 57,574 (observing that the J1 Test
Procedure’s “general specification of the water fill level could
lead to multiple capacity measurements”). Confirming, at a
minimum, the lack of an accepted industry or regulatory
meaning of ‘uppermost edge,’ DOE in 2007, through the
Berringer email, had permitted Whirlpool to qualify its clothes
washers for the Energy Star Program based on testing at Fill
Level 4. In light of that uncertainty, especially during Energy
Star’s era of manufacturer self-testing, Whirlpool’s use of the
Energy Star logo before July 2010, without more, could not be
fairly construed as incorporating an established industry or
regulatory meaning that its Maytag Centennial clothes washers
had been tested at Fill Level 3 instead of Fill Level 4. See N.J.
Stat. Ann. § 12A:1-303(c) (requiring a trade usage to have
“such regularity of observance in a place, vocation, or trade as
to justify an expectation that it will be observed with respect to
the transaction in question”).
Contrary to plaintiffs’ assertions, the July 6 guidance did
not definitively resolve that ambiguity for clothes washers that
displayed the logo and were sold beforehand. There is a
general presumption against retroactive regulation, see Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), and
nothing about the July 6 guidance overcomes that presumption.
As a work-around, plaintiffs characterize that guidance as an
interpretive rule that merely clarified the meaning of an
existing regulation, the J1 Test Procedure. See Levy v. Sterling
Holding Co., 544 F.3d 493, 506 (3d Cir. 2008) (explaining that
“where a new rule constitutes a clarification – rather than a
substantive change – of the law as it existed beforehand, the
application of that new rule to pre-promulgation conduct
necessarily does not have an impermissible retroactive
34
effect”). Yet even if the July 6 guidance were a valid
interpretive rule – a debatable proposition25 – it would not
transform the meaning of the Energy Star logo on clothes
washers for express-warranty purposes. Under New Jersey’s
Uniform Commercial Code, to constitute a warranty, that
change would had to have been “fairly . . . regarded as part of
the contract.” N.J. Stat. Ann. § 12A:2-313 cmt. 7; see also
Liberty Lincoln-Mercury, 171 F.3d at 825; N.J. Stat. Ann.
§ 12A:2-313(1) (requiring the affirmation, promise, or
description to form “part of the basis of the bargain”). And the
July 6 guidance could not be fairly regarded as part of the
contracts for clothes washers previously sold and accepted.
After its issuance, the July 6 guidance did not immediately
transform the meaning of the Energy Star logo on clothes
washers. The guidance affected which clothes washers could
25
To qualify as an interpretive rule, an agency rule must do
more than resolve an ambiguity; it must do so through an
interpretative method as opposed to policy considerations. See
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)
(describing interpretive rules as “issued by an agency to advise
the public of the agency’s construction of the statutes and rules
which it administers” (emphasis added) (quoting Attorney
General’s Manual on the Administrative Procedure Act
(1947))); see also Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165,
170 (7th Cir. 1996) (limiting interpretive rules to those that
“can be derived from the regulation by a process reasonably
described as interpretation”). Yet DOE’s guidance does not
invoke any of the traditional tools of construction. See Kisor
v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (defining the standard
“interpretive tools” to include the “text, structure, history, and
purpose” of a regulation or statute). And even if the July 6
guidance were an interpretive rule, it would “not have the force
and effect of law” nor would it be “accorded that weight in the
adjudicatory process.” Perez v. Mortg. Bankers Ass’n,
575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey Mem’l
Hosp., 514 U.S. 87, 99 (1995)).
35
qualify for the Energy Star Program, and it ultimately resulted
in the disqualification of the three Maytag Centennial
models.26 But by statute, “a new or a significant revision” to
any Energy Star “product category, specification, or criterion”
cannot take effect for 270 days unless DOE or the EPA
specifies otherwise. 42 U.S.C. § 6294a(c)(7). It may be that
modifications to test procedures do not qualify as revisions to
“product category, specification, or criterion,” such that the
270-day lead time does not apply to revisions to procedures for
testing products. Id. But that is not clear, and without a
specified earlier effective date for the July 6 guidance, the
uncertainty associated with the logo’s meaning when displayed
on a clothes washer prevented it from being fairly regarded as
certifying compliance at Fill Level 3 for 270 days, until at least
March 2011 – after any plaintiff purchased one of the models.
Assuming, for the sake of argument, that the
July 6 guidance could have taken immediate effect, that would
not simultaneously transform the Energy Star logo into an
express warranty of compliance with the new guidance. A
reasonable purchaser would still have had doubts that after
July 6, 2010, the display of the Energy Star logo on machines
certified something different than the logo did for the same
models that were sold and accepted before the guidance.
Indeed, the July 6 guidance prompted a lengthy and complex
recertification process. For Whirlpool, that change to the
testing protocols required “an all hands-on-deck, multi-month
effort,” consuming “more than 2,000 hours of lab time.” App.
944 ¶ 183 (Pls.’ Resp. to Defs.’ Statement of Material Facts).
The independent testing under DOE’s pilot program was not
much faster. It took months to confirm that the selected
Maytag model did not meet Energy Star standards at Fill
Level 3. And even after that determination, DOE still allowed
the model to bear the Energy Star label for twenty days, until
26
Three of the named plaintiffs purchased their units after the
July 6 guidance but before February 9, 2001, the date to which
DOE permitted the models to bear the Energy Star logo.
36
February 9, 2011 – which was after any plaintiff purchased one
of the machines. Thus, in the context of the regulated industry,
it is not reasonable to understand the Energy Star logo on the
same model clothes washer to convey a different affirmation,
promise, or description until at least the expiration of DOE’s
permission for the logo’s use (if not the full 270 days specified
in statute).
In sum, at least between November 2009 and December
2010 – the time period during which the named plaintiffs
purchased their washers – the July 6 guidance did not
transform the prior ambiguities in the J1 Test Procedure, much
less those in the Energy Star logo itself, into a “specific”
affirmation, promise, or description that a clothes washer
complied with Energy Star standards when tested at Fill
Level 3. Herbstman v. Eastman Kodak Co., 342 A.2d 181, 187
(N.J. 1975). Thus, the District Court did not err in rejecting
plaintiffs’ absolute-compliance theory.
B. The State Consumer-Protection Claims
Plaintiffs also challenge the District Court’s entry of
summary judgment against their statutory causes of action.
Those claims were grouped by subclasses based on the
applicable state’s consumer-protection statutes, which allow
civil redress for unfair methods of competition, abusive sales
practices, false advertising, fraud, and similar wrongs. See
Dzielak, 2019 WL 6607220, at *18–27.27 The parties agree
27
Plaintiffs’ consumer-protection claims sought redress under
three California statutes (the Consumers Legal Remedies Act,
Cal. Civ. Code § 1770(a), False Advertising Law, Cal. Bus. &
Prof. Code § 17500, and Unfair Competition Law, id.§ 17200), Florida’s Deceptive and Unfair Trade Practices Act,
Fla. Stat. §§ 501.201–.213, Indiana’s Deceptive Consumer
Sales Act, Ind. Code § 24-5-0.5-4, two New Jersey Statutes
(the Consumer Fraud Act, N.J. Stat. Ann. § 56:8-19, and Truth-
in-Consumer Contract, Warranty, and Notice Act, id. § 56:12-
17), Ohio’s Consumer Sales Practices Act, Ohio Rev. Code
37
that each of those statutory causes of action requires a false or
misleading statement, the spread of deceptive advertisements,
or conduct by the defendant that is otherwise unfair, deceptive,
or unconscionable. See id. But, as explained above, the
Energy Star logo cannot be reasonably construed to affirm,
promise, or describe clothes washers as satisfying Energy Star
standards at Fill Level 3 during the class period. And without
any deception associated with the logo’s use on the three
Maytag model clothes washers, the District Court did not err
in granting summary judgment on those claims.
IV. CONCLUSION
For these reasons, we will affirm the District Court’s
summary judgment and dismiss Whirlpool’s cross-appeal.
Ann. § 1345.02, and Texas’s Deceptive Trade Practices-
Consumer Protection Act, Tex. Bus. & Com. Code §§ 17.41–
.63.
38