U.S. Structural Plywood Integrity Coalition v. Forestwood Industries, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 22-60976-CIV-LEIBOWITZ/HUNT

U.S. STRUCTURAL PLYWOOD

INTEGRITY COALITION, et al.,

Plaintiffs

v.

AMERICAN ASSOCIATION FOR

LABORATORY ACCREDITATION, INC.

Defendant.

__________________________________________/

REPORT AND RECOMMENDATION

THIS MATTER is before this Court on Defendant’s Motion for Summary Judgment.

ECF No. 199. The Honorable David S. Leibowitz referred this matter to the undersigned

for a report and recommendation. See ECF No. 212; see also 28 U.S.C. § 636(b); S.D.

Fla. L.R., Mag. R. 1. Upon thorough review of the Motion, the Response, the Reply, the

entire record, arguments of counsel at a June 5, 2024 hearing, and applicable law, the

undersigned hereby recommends that the Motion be granted in part and denied in part

for the reasons set forth below.

Background

This case concerns the importation of Brazilian plywood into the United States.

Plaintiffs represent a coalition of U.S. plywood producers. Initially, this case involved two

Defendants. The first, Defendant Forestwood Industries, Inc. (“FII”), was a company in

charge of certifying that certain kinds of plywood imported from Brazil were up to the PS-

1 standard, which indicates structural grade plywood suitable for use in the construction

of buildings and homes. FII issued stamps that were placed on Brazilian plywood

indicating the plywood met the PS-1 standard. Defendant American Association for

Laboratory Accreditation, Inc., (“A2LA”) was the accrediting agency for FII.

Plaintiffs initially filed this case alleging malfeasance on the part of both

Defendants, seeking both damages and an injunction to prevent FII from certifying

Brazilian plywood and A2LA from certifying organizations such as FII as being able to do

so. Over the course of this case, it was discovered that FII likely violated the conditions

for accreditation. FII’s accreditation was suspended, and FII ultimately exited the PS-1

plywood certification business permanently. The Court dismissed FII from this case with

prejudice on August 28, 2023. ECF No. 169.

After a prolonged stay while the sawdust settled, Plaintiffs proceeded with their

claims against the remaining Defendant, A2LA. Plaintiffs now allege that A2LA committed

direct false advertising under the Lanham Act, in that it knew or should have known that

its certificate of accreditation was false, as well as contributory false advertising based on

FII’s violations of the Act. Additionally, Plaintiffs allege that A2LA was negligent in its

accreditation, leading to millions of dollars in damages to Plaintiffs. Plaintiffs also seek to

permanently enjoin A2LA from continuing to issue such accreditation. A2LA now seeks

summary judgment on all of Plaintiffs’ claims.

Legal Standard

For purposes of a motion for summary judgment, summary judgment shall be

entered “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“The moving party bears the initial burden to show the district court, by reference

to materials on file, that there are no genuine issues of material fact that should be

decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (stating that there is no

“requirement in Rule 56 that the moving party support its motion with affidavits or other

similar materials negating the opponent’s claim”). If that burden has been met, the burden

shifts to the nonmoving party “to demonstrate that there is indeed a material issue of fact

that precludes summary judgment.” Clark, 929 F.2d at 608. “[S]ummary judgment will

not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that

a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether there are any genuine issues of material fact, this Court

may not weigh evidence or make any credibility determinations. Tipton v. Bergrohr

GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992). Instead, this Court is required to

resolve all reasonable doubts in favor of the non-moving party. See Tolan v. Cotton, 572

U.S. 650, 660 (2014); Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.

1987) (citing Williams v. City of Dothan, 745 F.2d 1406 (11th Cir. 1984)). Summary

judgment is not appropriate where “a rational trier of fact could find a verdict for the

nonmoving party under the substantive evidentiary standard.” Tipton, 965 F.2d at 999.

Analysis

Defendant A2LA moves for summary judgment arguing, largely, that Plaintiffs’

allegations pass neither the legal nor smell tests. Defendants argue that Plaintiffs are

trying to bootstrap the Lanham Act, 5 U.S.C. § 1051 et seq., to rope in an accreditation

entity that has no plausible motive, economic or otherwise, to conspire with anyone

responsible for the importation of allegedly substandard Brazilian plywood. Defendant

argues that Plaintiffs fail to identify how it could possibly owe plywood mills in the United

States, mills to which Defendant has no relationship or connection of any kind, any duty

of care to protect their financial interests. Defendant further notes that Plaintiffs here seek

permanent injunctive relief based on the mere possibility Defendant might someday

accredit another entity that certifies Brazilian plywood.

Plaintiffs respond that their case is simple. They allege that Defendant issued, and

later renewed, accreditation for FII that FII needed to gain acceptance under U.S. building

codes as an organization qualified to certify plywood to the PS-1 standard. By issuing

the accreditation, Plaintiffs argue, Defendant warranted to the world that FII was qualified

and competent, and that its PS-1 stamps could be trusted. FII, Plaintiffs allege, was

neither competent nor qualified, and issued fraudulent PS-1 certificates for profit to nearly

two dozen plywood mills in southern Brazil without any evidence that the mills consistently

produced on-grade plywood.

Plaintiffs maintain that Defendant was adequately warned and presented with

evidence of FII’s incompetence and fraud, but nonetheless maintained FII’s accreditation

for nearly two years. Plaintiffs argue that Defendant’s accreditation of FII ultimately

allowed massive volumes of bad plywood bearing FII’s grade stamps to flood the U.S.

market, causing a reduction in the price of Plaintiffs’ competing, on-grade PS-1 plywood.

Had Defendant acted on the warnings, Plaintiffs argue, they would not have suffered

anything close to the almost $74 million in claimed lost profits that they now seek to

recover.

Defendant replies that Plaintiffs’ attempt to hold an accreditation body liable for

both the acts of a certification body it accredits, as well as the acts of the companies the

certification body certifies, risks making accreditation bodies liable for any malfeasance

down the certification line merely through the act of accreditation. This, according to

Defendant, would be devastating to the industry and cannot be the law.

As an initial note, both sides acknowledge a prior decision in a very similar case,

U.S. Structural Plywood Integrity Coal. v. PFS Corp., No. 19-62225-CIV-ALTMAN/HUNT,

2022 WL 953150 (S.D. Fla. Mar. 30, 2022). In that case, Judge Roy K. Altman found that

almost identical claims against PFS-TECO, a certification body and the equivalent of FII

here, could survive summary judgment. Plaintiffs argue that this decision (hereinafter

“Plywood I”) basically decides all the issues currently before us. Defendant, on the other

hand, argues that Plywood I is irrelevant, in that it only pertained to the certification body

– FII’s counterpart – and not the Defendant-equivalent accreditation body, which settled

on non-monetary terms early in that litigation. Although it is true that there are no rulings

in Plywood I on Plaintiffs’ claims against an accreditation body and whether such claims

could survive a motion to dismiss or a motion for summary judgment, the undersigned

nonetheless finds much of the analysis relevant to the current case.

There are four main arguments in Defendant’s Motion. Each will be addressed in

order.

I. Lanham Act Standing

Defendant first contends Plaintiffs cannot satisfy the “zone of interests” standing

test outlined in Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118

(2014), in that Plaintiffs’ alleged harm to their plywood prices from the importation of

Brazilian plywood does not have a sufficiently close connection to Defendant’s

accreditation of FII. Essentially, Defendant argues, Plaintiffs cannot show that

Defendant’s accreditation was a proximate cause of Plaintiffs’ alleged injuries.

Additionally, Defendant argues that, per ThermoLife International, LLC v. BPI

Sports, LLC, No. 21-15339, 2022 WL 612669 (9th Cir. Mar. 2, 2022), Lanham Act

standing requires ”something very close to a 1:1 relationship between a plaintiff’s lost

sales and the sales diverted to a defendant.” Id. at *2 (internal citation and quotations

omitted). Defendant notes that in the ThermoLife case, the court held that because the

defendant operated at a different level of the supply chain than the plaintiff, the allegations

were too speculative to establish proximate cause. The same analysis should apply here,

Defendant argues.

Plaintiffs respond that Lexmark held that proximate cause exists when the

defendant’s consumer deception is a direct cause of plaintiffs’ commercial injury. Without

Defendant’s accreditation, Plaintiffs contend, FII would not have been able to issue its

PS-1 stamps to the off-grade Brazilian mills and Plaintiffs would not have been injured by

unfair competition from that fraudulently-certified plywood. Plaintiffs argue that they have

Lanham Act standing because Defendant’s deception of consumers regarding the validity

of FII’s PS-1 stamps was, indeed, a proximate cause of Plaintiffs’ commercial injury.

As for ThermoLife, Plaintiffs observe that the decision nonetheless reaffirmed that

“direct competition is not required for proximate cause, if a plaintiff can show that any

false advertising ‘necessarily injured’ its business.” ThermoLife, 2022 WL 612669 at *2

(citations and quotations omitted). Plaintiffs argue that Defendant’s accreditation of FII

necessarily injured Plaintiffs by enabling FII to falsely certify Brazilian plywood that

corrupted Plaintiffs’ markets and caused them to lose profits, and thus the accreditation

was a proximate cause of Plaintiffs’ injuries, which is all that Lexmark and the Lanham

Act require.

Defendant replies that Lexmark is clear that a plaintiff must still show injury “flowing

directly from the deception wrought by the defendant’s advertising; and that that occurs

when deception of consumers causes them to withhold trade from the plaintiff.” Lexmark

Int'l, 572 U.S. at 138. Defendant contends that there is no evidence that its accreditation

of FII cast aspersions on Plaintiffs’ business or directly caused Plaintiffs $74 million in

damages. Indeed, Defendant argues that there is no evidence in this action that its

accreditation certificate communicated anything about Plaintiffs’ product. Because

Defendant’s accreditation of FII makes no representations about Plaintiffs’ plywood, it

argues, Defendant’s conduct does not come within the zone of interests applicable to the

Lanham Act.

In Plywood I, the court noted the general principle recognized under Lexmark that

“bars suits for alleged harm that is ‘too remote’ from the defendant’s unlawful conduct.”

Plywood I, 2022 WL 953150, at *9 (quoting Lexmark Int’l, 572 U.S. at 133). The Plywood

I court cited Lexmark for the notion that for Lanham Act false-advertising claims “the zone

of interests the statute protects includes ‘a person engaged in commerce within the

control of Congress whose position in the marketplace has been damaged by [the

defendant’s] false advertising.’” Id. (quoting Lexmark Int’l, 572 U.S at 137). Lost sales,

such as Plaintiffs here allege, are “precisely the sorts of commercial interests the

[Lanham] Act protects.” Id. (quoting Lexmark Int’l, 572 U.S at 137).

In Plywood I, the court found that the requirements necessary to establishing

Lanham Act standing had been met by the actions of the equivalent of FII, via its licensing

of the PS-1 stamps. There are several obvious similarities to this case. Here, as in

Plywood I, Plaintiffs have retained several experts,1 who opine on “the close correlation

between the influx of Brazilian structural plywood into the U.S. market, the concomitant

decrease in the price for structural plywood in the United States, and a concurrent decline

in the Plaintiffs’ annual sales.” Id. at *10. Additionally, there are declarations attesting

to a marked decline in U.S. plywood suppliers’ “annual sales that corresponds to an

increase in the supply of Brazilian plywood in the market,” as well as attestations that PS-

1 stamps serve as “both an advertisement and a certification that the plywood meets the

requirements of the [PS-1] grade standards.” Id. at *12. All of these would likely

adequately support a finding that Plaintiffs had standing to sue FII, because it was their

stamp on the plywood. But what about the company that gave permission to FII to issue

the stamp in the first place?

The Plywood I court observed that it was important that “Plaintiffs allege that the

stamps themselves cause consumers to purchase Brazilian plywood. It’s the stamps, in

other words—and not some intervening [communication] about the plywood—that

(according to the Plaintiffs) deceived consumers into thinking that the plywood they were

buying was [PS-1] compliant.” Id. at *16. Here, arguably, there was an intervening

circumstance between the actions of the accrediting body and the alleged harm to

1 The undersigned should note that Defendant has filed a Daubert motion

challenging Plaintiffs’ reliance on these experts. The Court held an evidentiary hearing

on that Motion but has not yet ruled. Should any of those experts be stricken, the

undersigned recommends that Defendant be allowed to reraise summary judgment

arguments that were contingent on those experts.

consumers – namely, the malfeasance of FII. Plaintiffs attempt to overcome this by

pointing out that Defendant was made aware early in the accreditation process of FII’s

potential malfeasance and ignored all the warnings. Plaintiffs point to deposition

testimony by Defendant’s own employee, Jonathan Furman, where Furman

acknowledged the mistakes made in the accreditation process.

Viewing the facts in the light most favorable to Plaintiffs, under these

circumstances, the undersigned finds that Plaintiffs have effectively alleged that

Defendant’s actions proximately caused the harms alleged. But for Defendant’s faulty

accreditation processes, FII would have never been able to issue the licenses. And,

following Plywood I, the license issuance was clearly covered under the Lanham Act’s

zone of interests analysis. Accordingly, Plaintiffs have standing to sue under the Lanham

Act, and Defendant’s Motion should be denied on this point.

II. Lanham Act elements

a. Direct False Advertising

Having established that Plaintiffs can indeed bring their claims, the undersigned

now turns to the argument that Plaintiffs have failed to present facts adequate to establish

their claims. To prevail on the Lanham Act claim for direct false advertising, Plaintiffs

must establish that “(1) the defendant’s statements were false or misleading; (2) the

statements deceived, or had the capacity to deceive, consumers; (3) the deception had

a material effect on the consumers’ purchasing decision; (4) the misrepresented service

affects interstate commerce; and (5) [the plaintiff] has been, or likely will be, injured as a

result of the false or misleading statement.” HiTech Pharms., Inc. v. HBS Int’l Corp., 910

F.3d 1186, 1196 (11th Cir. 2018).

Defendant also argues that Plaintiffs must establish additional Eleventh Circuit

requirements that Defendant’s conduct must constitute commercial advertising or

promotion. To establish commercial advertising or promotion, Plaintiffs must establish

that the conduct constitutes “(1) commercial speech; (2) by a defendant who is in

commercial competition with the plaintiff; (3) for the purpose of influencing consumers to

buy defendant’s goods or services; and (4) the representations . . . must be disseminated

sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion’ within

that industry.” Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 950 (11th Cir. 2017)

(internal citations and quotations omitted).

Defendant contends Plaintiffs’ false advertising Lanham Act claim fails because:

(1) A2LA’s conduct does not constitute “commercial advertising or promotion” because

(a) A2LA’s accreditation of FII is not commercial speech, (b) A2LA is not in commercial

competition with Plaintiffs, (c) the accreditation of FII was not for the purpose of

influencing consumers to buy A2LA’s product, and (d) A2LA’s accreditation of FII was not

disseminated to the relevant purchasing public to constitute advertising. Defendant also

argues that (2) A2LA’s accreditation of FII was not a false statement; and (3) A2LA’s

accreditation of FII did not have a material effect on consumers’ purchasing decisions.

Plaintiffs respond that Defendant’s false accreditation of FII is commercial

advertising, in that Defendant published a Certification of Accreditation proclaiming FII

competent to license that plywood met the PS-1 standard. That Defendant was not in

direct competition with Plaintiffs is irrelevant, Plaintiffs argue, in that commercial

competition is no longer required.

Likewise, Plaintiffs argue that whether Defendant’s speech itself diverted sales is

also irrelevant, in that all that is required is that Defendant’s accreditation of FII served a

clear commercial purpose. That purpose, according to Plaintiffs, was to communicate to

consumers that plywood bearing the FII stamp meets the PS-1 standard as determined

by an accredited certification body. Plaintiffs essentially argue that because the

accreditation was false and was disseminated to the necessary extent within the industry

it materially influenced consumers and thereby caused Plaintiffs commercial injury.

Therefore, according to Plaintiffs, it is actionable under the Lanham Act.

Defendant replies by reiterating its position that its accreditation of FII simply does

not constitute commercial advertising or promotion. Further, Defendant contends that

there is no evidence of how A2LA’s accreditation of FII was made for the purpose of

influencing consumers. Additionally, Defendant argues that its “advertisement,” such as

it was, was not disseminated. Finally, Defendant notes that there is no evidence that

A2LA’s accreditation of FII had a material effect on consumers’ purchasing decisions.

It is on this last part that the undersigned now focuses. Plaintiffs argue that it is

enough that there was a communication to consumers that plywood bearing the FII stamp

met the PS-1 standard, because FII had been falsely accredited by Defendant. “Where

it is undisputed that PS-1 requires accreditation for a grade stamp to be recognized as

valid, it follows a priori that a PS-1 certifier’s accreditation is material to consumers,”

according to Plaintiffs. ECF No. 210 at *20.

The undersigned finds Plaintiffs’ argument lacking. To “succeed on a claim of false

advertising, the plaintiff must establish that the defendant’s deception is likely to influence

the purchasing decision.” Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc.,

299 F.3d 1242, 1250 (11th Cir. 2002) (emphasis added). There is simply no evidence

before the Court that the accreditation itself would have had any influence on consumers’

purchasing decisions. While the PS-1 stamp was certainly material, what consumers

relied on was FII’s certification of the product, rather than Defendant’s certification of FII.

All that Plaintiffs have shown is that the stamp was important. Had, for instance, FII simply

created its own stamp without Defendant’s accreditation and started shipping out

plywood, it is likely the purchasing decisions would have been the same. This is not to

say that an accreditor cannot be liable under Plaintiffs’ theory. But on the facts before the

Court, they have not adequately put forward facts demonstrating that liability here.

Defendant’s Motion should therefore be granted on this point.

b. Contributory false advertising

This finding does not leave Plaintiffs completely in the cold, however. In addition

to Plaintiffs’ direct false advertising claim, Plaintiffs have also alleged a contributory false

advertising claim against Defendant under the Lanham Act. Unlike direct false

advertising, to prevail on a contributory false advertising claim, a plaintiff must prove (1)

that a third party directly engaged in false advertising that injured the plaintiff; and (2) that

the defendant contributed to that conduct either through knowing inducement, or causing

the conduct, or by materially participating in it. See Baldino’s Lock & Key Serv., Inc. v.

Google, Inc., 624 F. App’x 81 (4th Cir. 2015); Duty Free Americas, Inc. v. Estee Lauder

Companies, Inc., 797 F.3d 1248, 1277 (11th Cir. 2015).

Defendant here first argues that Plaintiffs’ contributory false advertising claim fails

because Plaintiffs cannot prove that FII violated the Lanham Act. Defendants contend

that, because FII has been dismissed from this case with prejudice, and because that

dismissal with prejudice operates as a final judgment, Plaintiffs cannot legally prove that

FII directly engaged in false advertising. Additionally, Defendant argues that that there

is no evidence that it knowingly induced, caused, or materially participated in any

purported false advertising.

Plaintiffs respond that it is clear that FII engaged in direct false advertising, and the

fact that FII was dismissed from this case is simply a red herring. Plaintiffs argue that it

is also clear that Defendant materially participated in FII’s false advertising. Plaintiffs

contend that FII’s false advertising would not have been possible without Defendant’s

accreditation, which is the necessary “product” that conferred legitimacy on FII’s licensed

PS-1 stamps.

Defendant replies the law is clear that a voluntary dismissal with prejudice, such

as occurred here regarding FII, renders FII the prevailing party, and thus the argument

that it engaged in false advertising is legally foreclosed. Further, Defendant contends

that there is simply no evidence demonstrating that it knowingly participated in any

purported scheme to defraud. Defendant’s accreditation of FII, according to Defendant,

constituted no more than an ordinary business relationship, and Defendant had no

plausible economic motive to conspire with FII.

The undersigned finds that there is ample evidence, including from Defendant’s

own manager, that FII engaged in false advertising. Indeed, FII in this case is no different

from the defendant in Plywood I, where the court easily found the elements adequately

alleged and supported. Plaintiffs have adequately established “the elements of a direct

false advertising claim against” FII for the purpose of summary judgment. Estee Lauder,

797 F.3d at 1277. That Plaintiffs are legally foreclosed from bringing a claim against FII

as a result of the dismissal has no effect on this.

As to whether Defendant contributed to that conduct, again, Plaintiffs have

introduced evidence that Defendant went forward with the accreditation despite ample

warnings that FII would be unable to properly certify the plywood. Additionally, there is

evidence that Defendant failed to follow its own procedures in the accreditation process,

despite these warnings. This is enough for Plaintiffs’ contributory false advertising claim

to survive summary judgment, and Defendant’s Motion should be denied on this point.

III. Negligence

Defendant next argues that it owes no duty of care to Plaintiffs, in that “a party has

no legal duty to prevent the misconduct of third persons.” Dorsey v. Reider, 139 So. 3d

860, 864 (Fla. 2014). Defendant points out that an “injured party must show that a

defendant owed not merely a general duty to society but a specific duty to him or her, for

without a duty running directly to the injured person there can be no liability in damages,

however careless the conduct or foreseeable the harm.” Grieco v. Daiho Sangyo, Inc.,

344 So. 3d 11, 23 (Fla. 4th DCA 2022) (quoting Grunow v. Valor Corp. of Florida, 904 So.

2d 551, 556 (Fla. 4th DCA 2005)). Defendant argues that Plaintiffs have failed to allege

or show any duty Defendant owed to Plaintiffs, which Defendant argues is fatal to

Plaintiffs’ claim. Plaintiffs respond that Florida’s “foreseeable zone of risk” test asks only

whether a defendant’s conduct created a broader zone of risk that poses a general threat

of harm to others, and that Plaintiffs here fall within that broader zone.

There are four elements to a negligence claim under Florida law:

“[a] duty, or obligation, recognized by the law, requiring the defendant to

conform to a certain standard of conduct, for the protection of others against

unreasonable risks”; (2) “[a] failure on the defendant’s part to conform to the

standard required”—what we call “a breach of the duty”; (3) “[a] reasonably

close causal connection between the conduct and the resulting injury”; and

(4) “[a]ctual loss or damage[.]”

Plywood I, 2022 WL 953150 at *38 (quoting O’Donnell v. United States, 736 F. App’x.

828, 831 (11th Cir. 2018)).

As Plaintiffs point out, the duty element focuses on “whether the defendant’s

conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm

to others.” Id. (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)).

“When a defendant’s conduct creates a foreseeable zone of risk, ‘a legal duty will

ordinarily be recognized to ensure the conduct is carried out reasonably.’” Id. (quoting

McCain, 593 So. 2d at 502).

In Plywood I, the court found that “Defendants’ alleged failure to perform the core

responsibilities of testing, inspecting, and certifying a structural product creates a general

and foreseeable risk of harm.” Id. at *39. That court found it “foreseeable … that the act

of facilitating the importation of cheaper, sub-standard products would cause economic

injuries to domestic manufacturers.” Id.

Although Defendant here is once removed from the defendant in Plywood I, the

undersigned sees little difference in the analysis. Here, as there, Defendant’s alleged

failure to perform the core responsibilities of accreditation created a general and

foreseeable risk of harm. Here, as there, the harms alleged by Plaintiffs fall within that

zone. The undersigned therefore finds that Plaintiffs’ negligence claim should survive

summary judgment, and Defendant’s Motion should be denied on this point.

IV. Request for Injunctive Relief

Finally, Defendant argues that Coalition Plaintiff lacks associational standing to

sue on behalf of its members, and the other Plaintiffs lack standing to seek a permanent

injunction. Defendant points to Connecticut State Dental Association v. Anthem Health

Plans, Inc., 591 F. 3d 1337 (11th Cir. 2009), where an association sought declaratory and

injunctive relief but also requested compensatory and punitive damages on behalf of its

members. There, the court observed that an association cannot proceed on behalf of its

members when claims for monetary relief are involved. Id. at 1354.

Defendant, citing Gagliardi v. TJCV Land Trust, 889 F.3d 728, 734 (11th Cir. 2018),

further argues that Plaintiffs cannot seek permanent injunctive relief where, as here, the

need for any injunctive relief has completely dissipated, and Plaintiffs have an adequate

remedy at law. Likewise, “[b]ecause injunctions regulate future conduct, a party has

standing to seek injunctive relief only if, unlike here, the party alleges . . . a real and

immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.”

Shotz v. 26 Cates, 256 F.3d 1077, 1081 (11th Cir. 2001).

Plaintiffs respond that the Coalition Plaintiff, unlike the plaintiff in Connecticut State

Dental, does not seek damages independently or on behalf of its members. Instead, each

of the individual plywood company Plaintiffs seeks damages on its own behalf, and the

Coalition seeks only injunctive relief. The Coalition argues that there is no evidence that

Defendant has reformed its procedures to correct the failings that contributed to its false

accreditation of FII, nor is there any basis to conclude that Defendant would not falsely

accredit another unqualified PS-1 certifier in the future, and thus an injunction is needed.

A court should only grant injunctive relief when the movant shows that (1)

there is a substantial likelihood of success on the merits, (2) irreparable

injury will be suffered unless an injunction is issued, (3) the threatened injury

to the movant outweighs whatever damage the proposed injunction may

cause the opposing party, and (4) if issued, the injunction would not be

adverse to the public interest.

Lyman v. Excel Impact, LLC, No. 23-23767-CIV-BLOOM/TORRES, 2024 WL 982562, at

*2 (S.D. Fla. Feb. 28, 2024) (citing Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7, 20 (2008); Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir. 2018)).

The undersigned agrees that there is nothing before the Court, other than Plaintiffs’

speculation, that would justify injunctive relief. The accreditation at issue in this case has

been withdrawn, and Defendant has issued no further accreditations. There is no

evidence of any imminent threat that they will do so, or evidence that Defendant would

do so improperly. In short, the request for injunctive relief in this case has long been moot

and remains so.

Defendant in its reply appears to concede that the individual Plaintiffs could seek

damages on behalf of their surviving claims, and thus they should be allowed to do so.

Defendant’s Motion should therefore be granted as to Plaintiffs’ injunctive relief request,

and this case should only proceed with those Plaintiffs for whom damages remain

available.

RECOMMENDATION

For the reasons set forth above, the undersigned hereby RECOMMENDS that

Defendant’s Motion for Summary Judgment, ECF No. 199, be GRANTED IN PART AND

DENED IN PART.

It should be granted to the extent that summary judgment should be entered in

Defendant's favor on Plaintiffs’ direct false advertising claim, as well as Plaintiffs’ request

for injunctive relief.

The Motion should otherwise be denied.

Within fourteen (14) days after being served with a copy of this Report and

Recommendation, any party may serve and file written objections to any of the above

findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.

§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely

object waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).

DONE and SUBMITTED at Fort Lauderdale, Florida, this 6th day of August 2024.

Pe be Ie

PATRICK M. HUNT

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable David S. Leibowitz

All Counsel of Record

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