stating that the test for relief for trademark and unfair competition claims under both the Lanham Act and Michigan common law is the same “likelihood of confusion” standard
How later courts described this case
- stating that the test for relief for trademark and unfair competition claims under both the Lanham Act and Michigan common law is the same “likelihood of confusion” standard
Written by the judges who cited it.
The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0213p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
GEOMATRIX, LLC,
│
Plaintiff-Appellant, │
> No. 22-1947
│
v. │
│
NSF INTERNATIONAL; BIOMICROBICS, INCORPORATED; │
HOOT SYSTEMS, LLC; JAMES BELL, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Port Huron.
No. 3:20-cv-13331—Robert H. Cleland, District Judge.
Argued: July 26, 2023
Decided and Filed: September 12, 2023
Before: McKEAGUE, GRIFFIN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Devon P. Allard, Daniel L. Ravitz, THE MILLER LAW FIRM, P.C., Rochester,
Michigan, for Appellant. Patrick M. McCarthy, HOWARD & HOWARD ATTORNEYS PLLC,
Royal Oak, Michigan, for Appellee NSF International. ON BRIEF: Devon P. Allard, E. Powell
Miller, Kevin F. O’Shea, THE MILLER LAW FIRM, P.C., Rochester, Michigan, for Appellant.
Patrick M. McCarthy, Jonathan F. Karmo, HOWARD & HOWARD ATTORNEYS PLLC,
Royal Oak, Michigan, for Appellee NSF International. William S. Cook, Matthew J. High,
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Livonia, Michigan, for
Appellees BioMicrobics and James Bell. Fred K. Herrmann, Matthew L. Powell, KERR,
RUSSELL AND WEBER, PLC, Detroit, Michigan, for Appellee Hoot Systems, LLC.
GRIFFIN, J., delivered the opinion of the court in which McKEAGUE, J., joined and
MURPHY, J., joined in part. MURPHY, J. (pp. 27–29), delivered a separate concurring opinion.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
Plaintiff Geomatrix sells a septic system that substantially differs from those sold by its
competitors. It asserts defendants, those competitors and NSF International (the primary
standard-setting organization for the wastewater product industry), conspired to exclude its
unique system from the marketplace. The district court dismissed Geomatrix’s claims on several
grounds, including the Noerr-Pennington doctrine and for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). We agree that dismissal is proper and affirm.
I.
Commonly known as septic systems, “onsite wastewater treatment and dispersal
products” contain both a septic tank and a drain field. The tank isolates and contains the sewage,
and the remaining wastewater flows through a drain field, where microorganisms treat the water.
According to Geomatrix, customers largely have two options for private septic systems—aerobic
treatment units (known as “contained systems”), or soil-based/open-bottom treatment systems
(“Treatment and Disposal Systems,” or “T&D systems”). In a contained system, the septic tank
has aeration devices that treat the wastewater before it leaches into the drain field. A T&D
system, however, does not need those devices. The drain field of a T&D system has more sandy
surface area—that increases the available oxygen, which in turn increases the number of
microorganisms that treat the wastewater. Geomatrix markets and sells GeoMat, a T&D system,
while many of its competitors, including defendants Hoot Systems and BioMicrobics, sell
contained systems.
NSF offers a certification for the wastewater treatment industry: Standard 40. In use
since 1970, it “contains minimum requirements for residential wastewater treatment systems
having [certain] rated treatment capacities.” First Amended Complaint, R. 24, PageID 404–05
(quotation marks omitted). Companies involved in this industry have a financial incentive to
obtain this certification, for “[i]nclusion in [these] standards is vital to the commercial success”
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 3
of their products since it “provides [a] company access to the onsite residential wastewater
market.” Id. at 382, 406–07 (quotation marks omitted). Practically speaking, a manufacturer
needs to obtain this certification before it can market products for sale in a given state—at least
thirty-seven states have adopted Standard 40 in their own regulations, and others rely on it in
making regulatory or product approval decisions. This standard, like all others promulgated by
NSF, is developed through a voluntary consensus process, overseen by a joint committee staffed
by NSF employees, state regulatory officers, industry manufacturers, and consumers.
Geomatrix sought and obtained a Standard 40 certification. Even though most septic
systems certified under Standard 40 are contained systems, at least three T&D systems have
received certification. NSF and Geomatrix agreed on a testing protocol in 2013 after NSF
confirmed that GeoMat was eligible for Standard 40 certification. Then, after Geomatrix
completed the testing protocol, it received Standard 40 certification in July 2014.
Geomatrix alleges that competitors in the wastewater industry then began conspiring
against T&D systems. It claims that those competitors, including Hoot Systems and
BioMicrobics, conspired with NSF to limit the market for Geomatrix products, to preserve the
market for certain NSF customers, and to protect their own private interests without regard for
scientific evidence. These alleged conspirators questioned whether T&D systems should be
entitled to Standard 40 certification—this questioning allegedly “began the process of eroding
confidence in Treatment and Dispersal Systems by state regulatory authorities.” Id. at 427–28.
As to the particulars of the conspiracy, Geomatrix alleges that it began in September
2017 when an NSF employee circulated a paper to the joint committee suggesting that T&D
systems be removed from Standard 40 certification and placed in a new, separate standard. The
underlying, but allegedly unfounded, concerns about T&D systems have been raised at every
joint committee since. And Geomatrix contends that certain actions or statements disparaged the
efficacy of T&D systems, including: 1) individuals employed by manufacturers of contained
systems (including defendant James Bell) “dominat[ing]” joint committee discussions;
2) adopting the disparaging term “uncontained” for T&D systems; 3) unsupported questioning of
the reliability or efficacy of T&D systems; 4) falsely accusing T&D systems of clogging
problems; 5) proposing double standards or straw polls weighted in favor of contained systems;
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 4
6) failing to adopt a fair test for T&D systems with the opportunity to prove performance;
7) proposing that T&D systems be eligible for certification under an entirely different standard,
Standard 240, which has been adopted in only one state; and 8) developing a new proposed
standard, Standard 441, for high-strength wastewater systems (used, for example, by restaurants)
that would exclude T&D systems. In short, Geomatrix alleges that these actions demonstrate a
conspiracy that harmed its business. Per its complaint:
The Defendants in concert disparaged Treatment and Dispersal Systems, falsely
asserted that they did not fit within the NSF/ANSI Standard 40, giving the
impression that these technologies did not adequately protect public health and/or
the environment, and attempt [sic] to create new standards in which to move
Treatment and Dispersal Systems knowing that, if successful, it would take many
years for those standards to be adopted; effectively shutting down their
competitors.
First Amended Complaint, R. 24, PageID 460.
This alleged conspiracy affected Geomatrix’s business by preventing it from obtaining
state regulatory approval for GeoMat, even though its Standard 40 certification should have
made it possible to do so. Ultimately, because of this uncertainty, Geomatrix decided to
withdraw its NSF certification: in February 2018, it informed NSF that, “due to the uncertainty
surrounding which, if any, states will allow use of certified open bottom technologies” it did not
know if continued certification would be beneficial and did “not intend to continue its active
certification with NSF.” R. 30-5, PageID 687. This happened despite GeoMat still being
eligible for Standard 40 certification—as of today, NSF has not adopted the new Standard 441,
as those discussions remain ongoing.
Plaintiff filed a complaint against NSF, BioMicrobics, Hoot Systems, and James Bell
raising a host of claims, including violations of the Sherman Act, the Lanham Act, and Michigan
law. Defendants moved to dismiss for two reasons: 1) for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) because Standard 441 had not yet been approved
or rejected; and 2) for failing to state a claim upon which relief could be granted under Rule
12(b)(6), because, among other reasons, defendants’ petitioning activity was immunized under
the Noerr-Pennington doctrine or because Geomatrix failed to state any plausible claim, whether
antitrust or otherwise.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 5
The district court agreed with defendants. It determined that, while much of Geomatrix’s
case centered on unripe injuries related to the adoption of Standard 441, claims for present
“disparagement” injuries established standing. Yet this did not save Geomatrix’s case from
dismissal. The court concluded that the antitrust claims, Michigan common law business tort
claims, and the Michigan Consumer Protection Act claims were based on immunized conduct
protected by Noerr-Pennington or that those claims otherwise failed to state a claim. Geomatrix
further failed to show the proximate cause required for the federal and state unfair competition
claims, and its promissory estoppel claims were based on statements that did not state a
sufficiently definite promise. Claiming error, Geomatrix timely appeals.
II.
Before turning to the merits of Geomatrix’s complaint, we must assure ourselves of
jurisdiction. Defendants raise two jurisdictional arguments: 1) Geomatrix’s injuries are not ripe
because they stem from a future, possible injury based on whether Standard 40 or 441 will
exclude T&D systems, and 2) Geomatrix’s case is moot because it declined to renew its Standard
40 certification. We agree with both contentions but still conclude that we have subject-matter
jurisdiction.
“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a
sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a
‘likelihood’ that the injury ‘will be redressed by a favorable decision.’” Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 157–58 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992)) (brackets omitted). “A claim is not amenable to the judicial process when it is
filed too early (making it unripe), when it is filed too late (making it moot) or when the claimant
lacks a sufficiently concrete and redressable interest in the dispute (depriving the plaintiff of
standing).” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc) (internal
citation, quotation marks, and alteration omitted). The prudential ripeness inquiry evaluates “(1)
the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding
court consideration.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003).
And a claim becomes moot “when the issues presented are no longer live or the parties lack a
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 6
legally cognizable interest in the outcome.” In re Flint Water Cases, 53 F.4th 176, 188 (6th Cir.
2022) (internal quotation marks omitted).
Geomatrix’s complaint relies in part on an injury that has yet to happen: “[t]he attempted
exclusion of Treatment and Dispersal Systems from NSF Standard 441.” First Amended
Complaint, R. 24, PageID 494. As alleged, NSF is considering how to certify T&D systems but
has not decided how to classify them going forward. If future versions of either Standard 40 or
441 do exclude T&D systems, then Geomatrix could be injured by that decision—yet that is not
the situation today. So this injury is “dependent” on future events that may or may not occur, see
Trump v. New York, 141 S. Ct. 530, 535 (2020) (per curiam), and is therefore unripe, see Nat’l
Park Hosp. Ass’n, 538 U.S. at 808.
Geomatrix’s decision not to renew its Standard 40 certification leads to a similar
conclusion with mootness. By withdrawing its certification, whether a Standard 40 certification
for T&D systems is actually “devalued” no longer makes any difference to Geomatrix—it lacks
any interest in actual harm to a Standard 40 certification and, as such, such an injury is not
cognizable. See Flint Water Cases, 53 F.4th at 188. Indeed, Geomatrix’s decision to relinquish
its certification also qualifies as a “self-inflicted injury,” and such injuries fail “the second
standing prerequisite, traceability.” Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 866 (6th
Cir. 2020).
Such conclusions do not strip us of subject-matter jurisdiction. These unripe and moot
injuries are different from the past and present “disparagement” or “committee dominance”
injuries that Geomatrix alleges have already occurred and for which it seeks damages. 1
Geomatrix’s complaint turns on an alleged conspiracy to disparage Geomatrix. Among those
“disparagement” injuries are interested parties dominating NSF’s decision-making process, the
use of disparaging and false information, and the failure to adopt a certification process that
1At oral argument, Geomatrix raised multiple arguments that NSF “packed” the committees or “stacked”
the certification process against them. Yet these do not appear in the complaint; the closest alleged injury is the
“dominance” of the certification process by defendants. Because a party may not “amend its complaint at oral
argument on appeal,” Airline Pros. Ass’n of the Int’l Brotherhood of Teamsters, Loc. Union No. 1224 v. Airborne,
Inc., 332 F.3d 983, 989 (6th Cir. 2003), we construe this “packing” argument to refer to these “committee
dominance” injuries.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 7
treats T&D systems fairly. Those actions have already occurred and turn on a conspiracy that
began in 2017. They also have an effect independent of the value of a Standard 40 certification,
for these actions allegedly inhibited the marketability of Geomatrix’s products, thereby causing
economic injury. So yes, any claim based on a potential new standard has been made too early,
and any claim based on the actual “devaluation” of Geomatrix’s Standard 40 certification is now
too late, cf. Warshak, 532 F.3d at 525, but claims based on underlying “disparagement” of T&D
systems and “dominance” of the standard-setting process are live, see Susan B. Anthony List, 573
U.S. at 157–58; see also Volvo N. Am. Corp. v. Men’s Int’l Pro. Tennis Council, 857 F.2d 55, 64
(2d Cir. 1988) (“[A] rule that has yet to be enacted or enforced may be ripe for review if its mere
proposal is likely to inhibit competition.” (emphasis added)). The conspiracy and proposals
made in furtherance thereof are sufficient. As a result, Geomatrix has standing to assert claims
based on these injuries and these injuries alone (i.e., not either the mooted or unripe one).
III.
We now turn to the merits. The district court dismissed the complaint for failing to state
a claim. Rejecting a “rifle” approach in favor of a “shotgun” one, Geomatrix now raises claims
of error on nearly all the district court’s conclusions. See Simmons v. Napier, 626 F. App’x 129,
133 (6th Cir. 2015). On de novo review and while “constru[ing] the complaint in the light most
favorable to the plaintiff, accept[ing] its allegations as true, and draw[ing] all reasonable
inferences in favor of the plaintiff,” Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426,
430 (6th Cir. 2008), we conclude the district court correctly dismissed Geomatrix’s complaint.
A.
The main issue on appeal is Geomatrix’s antitrust claims under Section 1 of the Sherman
Act, 15 U.S.C. § 1, et seq. The district court dismissed this claim under the Noerr-Pennington
doctrine, see E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United
Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965), so we begin there.
“No violation of the Sherman Act can be predicated upon mere attempts to influence the
enactment or the enforcement of laws, because those who petition the government for redress are
generally immune from antitrust liability.” 54 Am. Jur. 2d Monopolies & Restraints of Trade
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 8
§ 136 (2023) (footnotes omitted). Under this antitrust principle rooted in the First Amendment,
known as the Noerr-Pennington doctrine, “defendants are immune from antitrust liability for
engaging in conduct aimed at influencing decision-making by the government” because
“[a]ntitrust laws do not supersede the people’s right to petition their government in favor of a
desired monopoly.” Id.; see also Eaton v. Newport Bd. of Educ., 975 F.2d 292, 298 (6th Cir.
1992) (“[The Noerr-Pennington] doctrine holds that business interests may combine and lobby to
influence the legislative, executive, or judicial branches of government or administrative
agencies without violating the antitrust laws, because such activities are protected by the first
amendment right of petition.”). And immunity under this doctrine may apply notwithstanding
any actor’s anticompetitive purpose or whether the action produces a restraint on trade. 54 Am.
Jur. 2d Monopolies & Restraints of Trade § 136.
1.
Before addressing the specifics of that doctrine, we take note of how the district court
applied it. It appeared to treat Noerr-Pennington as a jurisdictional issue, but it is better suited
for Rule 12(b)(6). Although sovereign immunity is a jurisdictional defect that should be
addressed under Rule 12(b)(1), see Does v. Whitmer, 69 F.4th 300, 305 (6th Cir. 2023), general
affirmative defenses, including other immunity claims, are usually brought under Rule
(12)(b)(6), see, e.g., Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016); Leech
v. DeWeese, 689 F.3d 538, 540 (6th Cir. 2012). Further, while sovereign immunity (and other
jurisdictional defects) protects a party from suit, Noerr-Pennington immunizes conduct,
protected by the First Amendment, from antitrust liability. See Allied Tube & Conduit Corp.
v. Indian Head, Inc., 486 U.S. 492, 505 (1988) (“[I]n Noerr we immunized conduct that could be
characterized as a conspiracy . . . .”). Accordingly, we address defendants’ Noerr-Pennington
arguments under Rule 12(b)(6).
2.
Several cases outline the doctrine’s contours, starting with Noerr itself. There, several
railroad companies openly engaged in a publicity campaign against the trucking industry to
maintain their economic edge in the long-distance freight industry, which ultimately influenced
legislation. 365 U.S. at 129–30. The Supreme Court held that this conduct did not violate the
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 9
Sherman Act, notwithstanding any anticompetitive purpose the railroads may have had. Id. at
139–42. As a threshold matter, the Court accepted that “no violation of the Act can be
predicated upon mere attempts to influence the passage or enforcement of laws.” Id. at 135. Nor
did the Sherman Act “prohibit two or more persons from associating together in an attempt to
persuade the legislature or the executive to take particular action with respect to a law that would
produce a restraint or a monopoly.” Id. at 136. And it mattered not that the railroad companies’
conduct involved “deception of the public, manufacture of bogus sources of reference, [and]
distortion of public sources of information,” for even if that conduct fell “far short of the ethical
standards generally approved in this country,” it did not constitute an antitrust violation. Id. at
140–41 (alteration in original). While it may be true that the publicity campaign injured the
truckers’ goodwill, this injury was an “incidental effect of the railroads’ campaign to influence
governmental action.” Id. at 143; see also Pennington, 381 U.S. at 669–71 (reaffirming Noerr’s
holding that “[j]oint efforts to influence public officials do not violate the antitrust laws even
though intended to eliminate competition”).
Geomatrix contends that this case is controlled not by Noerr, but by the Supreme Court’s
subsequent decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).
Allied Tube involved a private standard-setting organization—the National Fire Protection
Association (NFPA)—which promulgated consensus standards for the electrical industry, much
like NSF here. Id. at 495–97. Manufacturers of steel sheathing for electrical conduits used their
influence in the NFPA to keep new manufacturers of less expensive plastic sheathing from the
market—to accomplish this, they openly recruited members to the annual meeting who duly
rejected the amendment for no apparent reason other than the manufacturers’ influence. Id. Yet
unlike in Noerr and Pennington, this conduct was not protected because the “arena” at issue was
different—unlike public campaigns, “private standard-setting associations have traditionally
been objects of antitrust scrutiny,” and the NFPA was not a “quasi-legislative” body because it
had no official governmental authority (even if legislatures often adopted its standards). Id. at
500–01. While the line between private and public action “may not always be obvious,” it was
clear that, when “the restraint is imposed by persons unaccountable to the public and without
official authority, many of whom have personal financial interests in restraining competition, we
have no difficulty concluding that the restraint has resulted from private action.” Id. at 501–02.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 10
Yet this did not resolve the issue—Noerr-Pennington could still immunize the conduct if the
exclusion of plastic sheathing from the marketplace was “incidental to a valid effort to influence
governmental action.” Id. at 502. But unlike in Noerr, “the context and nature of petitioner’s
activity” removed the conduct at issue from the doctrine’s ambit—the NFPA activity involved
“commercial activity with a political impact” as it “did not take place in the open political arena,
where partisanship is the hallmark of decisionmaking, but within the confines of a private
standard-setting process.” Id. at 505–07. As a result, Allied Tube held that, “at least where, as
here, an economically interested party exercises decision-making authority in formulating a
product standard for a private association that comprises market participants, that party enjoys no
Noerr immunity from any antitrust liability flowing from the effect the standard has of its own
force in the marketplace.” Id. at 509–10. The Court also cautioned, however, that government
solicitation, even in a private organization, may still be permitted: “[p]etitioner remains free to
take advantage of the forum provided by the standard-setting process by presenting and
vigorously arguing accurate scientific evidence before a nonpartisan private standard-setting
body.” Id. at 510.
Allied Tube is not alone in considering Noerr-Pennington’s applicability in the context of
private standard-setting organizations. In Sessions Tank Liners, Inc. v. Joor Manufacturing, Inc.,
the Ninth Circuit determined that Noerr-Pennington applied—a manufacturer of underground
tanks convinced a private organization to change its standards to exclude those businesses (like
the plaintiff’s) that relined tanks, which in turn led regulatory agencies to deny the necessary
permits to the plaintiff. 17 F.3d 295, 296 (9th Cir. 1994). Yet the doctrine still immunized the
defendant’s conduct because the injuries occurred from government action: “The plaintiff in
Allied was awarded damages only on the theory that the stigma of banning the plaintiff’s product
from a uniform code caused independent marketplace harm to the plaintiff in jurisdictions that
permitted the use of the plaintiff’s products. In contrast, [the plaintiff] has never proved that it
sustained injuries from anything other than the actions of municipal authorities.” Id. at 299
(internal citation omitted).
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 11
Similarly, Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n also
concluded that the conduct of a private organization (the ABA) was entitled to immunity when it
denied accreditation to a law school—meaning that the school’s students could not take certain
bar exams. 937 F. Supp. 435 (E.D. Pa. 1996), aff’d, 107 F.3d 1026 (3d Cir. 1997). In assessing
the Noerr-Pennington inquiry, the court asked: “(1) what is the harm that the plaintiff alleges it
suffered?; and, (2) is that harm the proximate result of governmental action or private conduct?”
Id. at 439–40. But any harm to the school did not result from private conduct that “stigmatized”
the school, resulting instead from the states’ actions to deny students the ability to sit for bar
examinations; thus, the injury was incidental to governmental action. Id. at 441–42. On appeal,
the Third Circuit affirmed, concluding that the alleged injury (preclusion of students taking the
bar examination) resulted from state action and the ABA’s opinion was petitioning activity
protected by Noerr. 107 F.3d at 1035–38; see also Lawline v. Am. Bar Ass’n, 956 F.2d 1378,
1383–84 (7th Cir. 1992) (“[W]hen a trade association provides information . . . but does not
constrain others to follow its recommendations, it does not violate the antitrust laws.”).
Noerr, Allied Tube, and their progeny outline the contours of the immunity analysis. We
begin by considering the two questions noted by Andover: (1) what is the harm that the plaintiff
suffered; and (2) whether that harm is the proximate result of governmental action or private
conduct. 937 F. Supp. at 439–40. In this inquiry, we must consider the “context and nature” of
the alleged activity. Allied Tube, 486 U.S. at 499. There may be overlap in the harms alleged as
to what is caused by private or governmental action, but we must determine what harm is
principal and what is “incidental.” See Noerr, 365 U.S. at 143; Allied Tube, 486 U.S. at 502–03.
If we determine that the nature of the harm is from “governmental action,” our inquiry stops, and
we must conclude that Noerr-Pennington immunity applies. Noerr, 365 U.S. at 135–36. But if
the harm stems from “independent marketplace harm,” Sessions, 17 F.3d at 299, including “the
effect [a] standard has of its own force in the marketplace,” Allied Tube, 486 U.S. at 510, then it
results from private conduct. In that circumstance, we must consider one final question:
whether the harm was nonetheless “incidental to a valid effort to influence governmental action.”
Id. at 502. If so, Noerr-Pennington immunity still applies—but if not, the conduct is not
protected. Compare Noerr, 365 U.S. at 138–39, with Allied Tube, 486 U.S. at 509–10.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 12
The involvement of a private standard-setting organization (like NSF) in an alleged
antitrust conspiracy does not obviate this analysis. See, e.g., Allied Tube, 486 U.S. at 502–03;
Sessions, 17 F.3d at 299–300. But in this context, naturally a “less political arena[],” Allied
Tube, 486 U.S. at 500, two other considerations are especially important. First,
Noerr-Pennington immunity is not limited to “direct” petitioning of the government; indirect
petitioning of the government through the media or other avenues is still protected. Allied Tube,
486 U.S. at 503; Noerr, 365 U.S. at 140–41. Thus, a party may use the forum provided by a
standard-setting organization to influence government action by voicing its opinion. See Allied
Tube, 486 U.S. at 510. Second, petitioning a private organization is not the same as petitioning
the government—an association without official authority is not a “quasi-legislative” body just
because governments often adopt its standards. Id. at 501. But whether or not a government
adopts those standards still affects the injury inquiry: “when a state adopts as its own the
conclusions reached” by a private standard-setting organization, and that adoption injures the
plaintiff, “it is the state and not the private party that injures the plaintiff with anticompetitive
conduct.” Andover, 937 F. Supp. at 440; accord Sessions, 17 F.3d at 299.
3.
After careful review of plaintiff’s complaint, we hold that the district court correctly
concluded Noerr-Pennington immunity applies.
We first must determine the true harm Geomatrix suffered. It alleges that defendants
conspired to devalue its products by dominating the NSF process to wrongly disparage T&D
systems and to exclude them from the marketplace:
Beginning in 2017, the Defendants entered into a conspiracy to collectively use
the standard-setting process by initiating actions and discussion and providing a
forum for disseminating such discussions and misinformation about Treatment
and Dispersal Systems with the aim of excluding Treatment and Dispersal
Systems from the market. The Defendants in concert disparaged Treatment and
Dispersal Systems, falsely asserted that they did not fit within the NSF/ANSI
Standard 40, giving the impression that these technologies did not adequately
protect public health and/or the environment, and attempt [sic] to create new
standards in which to move Treatment and Dispersal Systems knowing that, if
successful, it would take many years for those standards to be adopted; effectively
shutting down their competitors.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 13
First Amended Complaint, R. 24, PageID 460. These allegations give the initial impression that
the conspiracy sought to devalue the independent value of NSF’s own standards and exclude
T&D systems from the market that way. Any resulting injury, as Allied Tube held, is not
protected as it would flow “from the effect the standard has of its own force in the marketplace.”
486 U.S. at 510.
But the gravamen of the complaint is not so limited. Geomatrix further alleges that its
harm was not just this generic marketplace “disparagement” to T&D systems:
Once Geomatrix received certification for GeoMat under NSF/ANSI Standard 40,
it should have been able to obtain state regulatory approvals in states requiring
NSF/ASNI [sic] Standard 40 certification. However, as NSF conspired with the
Co-conspirators to raise questions of the legitimacy of the certifications granted to
Treatment and Dispersal Systems, they were unable to receive approvals in most
states. While acceptance of Treatment and Dispersal Systems should begin to
gain acceptance as time passes and performance is further proven, Geomatrix has
experienced increasing difficulty in obtaining regulatory approval for GeoMat
from state regulatory agencies that have adopted NSF/ANSI Standard 40 due to
NSF and its Co-conspirators’ actions to exclude Treatment and Dispersal Systems
from the market.
First Amended Complaint, R. 24, PageID 432 (emphasis added). This allegation comes on the
heels of Geomatrix describing NSF’s role in the regulatory approval process. See id. at 422–29.
NSF “markets its standards” to regulatory agencies and “touts” its influence in the regulatory
committee. As a result, its “publication of these false and defamatory statements by its
participants began the process of eroding confidence in Treatment and Dispersal Systems by
state regulatory authorities.” For example, the publication of a disparaging issue paper used
“NSF’s influence to create uncertainty regarding Treatment and Dispersal Systems in the minds
of regulatory authorities with the Co-conspirators.” The complaint thus makes clear that
certification is the initial step in the road to ultimate approval by state regulators: “Upon
obtaining NSF certification, Treatment and Dispersal Systems should be entitled to approval as
wastewater treatment systems in the majority of states in the same manner as Contained
Systems.” Indeed, Geomatrix’s cited reason for giving up its certification was not the
independent value of its product or of its certification, but the uncertainty surrounding state
regulator’s decision-making.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 14
Reading the complaint as a whole, the true harm alleged was one born from state action.
The conspiracy made it difficult for Geomatrix to market its products. Why? Because of the
independent decisions of state regulators. Geomatrix claims that it should have had access to
certain states’ markets once it received NSF certification; the fact that it did not means that an
intervening act had occurred (i.e., rejection by state regulators). The “context and nature” of the
conspiracy therefore demonstrates that Geomatrix’s injury primarily flows from the actions of
state agencies, Allied Tube, 486 U.S. at 499, for Geomatrix could not sell its products because of
regulators’ decision-making, not because of the effects of the conspiracy on the marketplace, see
Noerr, 365 U.S. at 143; Allied Tube, 486 U.S. at 502–03; accord Andover, 937 F. Supp. at 440.
To be sure, there is some overlap in the harm. This disparagement caused some
“incidental” harm to the value of the NSF Standard 40 certification or to the overall reputation of
T&D systems generally, and “dominance” of the standard-setting process likely tilted the playing
field against Geomatrix. Allied Tube, 486 U.S. at 499. Geomatrix thus contends that it was
harmed by the conspiracy independent of state regulatory decisions. But those facts do not, by
themselves, change the source of its injuries. As in Noerr, the complaint alleges that
conspirators’ actions influenced regulatory decisions because those decisions controlled access to
the marketplace—i.e., that the underlying petitioning activity “did in fact injure” Geomatrix “can
mean no more than that [Geomatrix] sustained some direct injury as an incidental effect” of the
alleged conspiracy. 365 U.S. at 143. And the conspirators’ alleged “dominance” of the
certification process was not like the one in Allied Tube. Cf. 486 U.S. at 496–97. Though the
conspirators’ actions may have “disparaged” Geomatrix’s products by “dominating” the
certification process, NSF has taken no independent action in the certification process, and
Geomatrix is as eligible for Standard 40 certification today as it was a decade ago. Regulators,
not NSF, have made the decisions that harmed Geomatrix. Perhaps this outcome could be
different if Geomatrix did not need to obtain approval from state regulators and if its injury
resulted solely from the independent marketplace harm to NSF Standard 40 itself, more akin to
Allied Tube. But that is not the crux of the complaint. Thus, the harm to Geomatrix that resulted
from the conspiracy flowed from the independent decisions of state regulators.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 15
This harm easily answers the second question: Geomatrix’s injury is the proximate result
of governmental action, not private conduct. See Andover, 937 F. Supp. at 439–40. It does not
flow from “independent marketplace harm,” Sessions, 17 F.3d at 299, or “the effect the standard
has of its own force in the marketplace,” Allied Tube, 486 U.S. at 510. And harm resulting from
government action means that, by operation of Noerr-Pennington, Geomatrix cannot establish a
violation of the Sherman Act. Noerr, 365 U.S. at 136.
We therefore hold that the conduct of the alleged conspiracy falls within the ambit of
Noerr-Pennington because governmental action, not private conduct, harmed Geomatrix. See
Noerr, 365 U.S. at 136 (“[W]here a restraint upon trade or monopolization is the result of valid
governmental action, as opposed to private action, no violation of the Act can be made out.”).
The conspirators may use NSF’s forum to advocate for government legislation, even if NSF
itself is not a quasi-legislative body. See Allied Tube, 486 U.S. at 501, 510. And because the
conduct on which Geomatrix premises its § 1 claim is immunized under Noerr-Pennington, it
has not raised “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Thus, the district court correctly dismissed the antitrust
claims for failing to state a claim upon which relief can be granted.
B.
Next, are Geomatrix’s unfair competition claims, one under the Lanham Act, 15 U.S.C.
§ 1125(a), and another under Michigan common law. The district court dismissed these claims,
concluding that Geomatrix failed to plead proximate causation under Lexmark International, Inc.
v. Static Control Components, Inc., 572 U.S. 118 (2014).
1.
The Lanham Act provides, as pertinent here, that a person is subject to civil liability
when he uses any false name or description that, “in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another
person’s goods, services, or commercial activities.” 15 U.S.C. § 1125(a). The Supreme Court
has construed this language to require that plaintiffs plead two things. First, the plaintiffs must
show that their interests “fall within the zone of interests protected by the law invoked,” meaning
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 16
that “a plaintiff must allege an injury to a commercial interest in reputation or sales.” Lexmark,
572 U.S. at 129, 131–132 (citation omitted). Second, and crucial here, “a statutory cause of
action is limited to plaintiffs whose injuries are proximately caused by violations of the statute.”
Id. at 132. This requirement merely reflects that a suit cannot rectify “every conceivable harm
that can be traced to alleged wrongdoing,” and especially those that are “too remote” from the
defendant’s conduct. Id. at 132–33 (citation and quotation marks omitted). Therefore, since the
Lanham Act, by its terms, contemplates the “intervening step of consumer deception,” a plaintiff
must plead that the “deception of consumers causes them to withhold trade from the plaintiff.”
Id. at 133; see also Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 798 (6th Cir. 2015) (noting that
a plaintiff must show “some causal link between the challenged statements and harm to the
plaintiff” in pleading a false advertising claim).
With this gloss, Geomatrix’s complaint fails for two reasons. First, Geomatrix alleges
that defendants’ disparagement caused “independent harm in the market and influenc[ed]
consumers’ purchasing decisions,” Appellant’s Br. at 41, but the complaint fails to describe what
“independent harm” occurred in the market or how defendants’ actions actually “influenc[ed]
consumers’ purchasing decisions.” For example, the complaint states that NSF published false
statements to regulators and customers and then used the standard-setting process to limit
competition. As for Hoot and BioMicrobics, they too made false statements about the reliability
of T&D systems or adopted disparaging terms. None of these allegations describe how
consumers “with[held] trade from the plaintiff.” Lexmark, 572 U.S. at 133.
Second, even if Geomatrix did allege that the statements influenced consumers’
purchasing decisions, it does not plausibly show that the statements caused independent market
harm—i.e., that these statements were the “cause” of withheld trade. Id. As described above,
the complaint relies on the fact that Geomatrix could not market its products in certain states
because state regulators did not approve their product. This lack of regulatory approval was the
actual cause of Geomatrix’s injuries. While Geomatrix contends that its injuries resulted from
the conspiracy by itself, the regulators’ decisions were still an intervening cause and the
proximate one. Any deception on defendants’ part was not the cause of consumers’ decisions,
for consumers were not the ones who decided to do anything. These allegations thus do not
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 17
satisfy Lexmark’s proximate-cause analysis, see id. at 133, and Geomatrix thus fails to show a
“plausible” claim to relief, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). So, for those reasons,
Geomatrix’s complaint fails to state a claim under the Lanham Act.
2.
We proceed to the separate, but similar, claim of unfair competition under Michigan
common law. “Unfair competition ordinarily consists in the simulation by one person, for the
purpose of deceiving the public, of the name, symbols, or devices employed by a business
rival . . . , thus falsely inducing the purchase of his wares and thereby obtaining for himself
the benefits properly belonging to his competitor.” Peninsular Stove Co. v. Augst, 285 N.W. 24,
26 (Mich. 1939) (citation omitted). Among the elements that a party must prove are a likelihood
of confusion to the public, Wills v. Alpine Valley Ski Area, Inc., 118 N.W.2d 954, 956 (Mich.
1963), deception that is the probable result of the defendant’s actions, Burns v. Schotz, 72
N.W.2d 149, 151 (Mich. 1955), and actual competition between the parties, Good Housekeeping
Shop v. Smitter, 236 N.W. 872, 873 (Mich. 1931). Given the overlap in required elements
between the Michigan common-law analysis and that under the Lanham Act, courts have noted
that the “likelihood of confusion” merits analysis is the same for both. See Carson v. Here’s
Johnny Portable Toilets, Inc., 698 F.2d 831, 833 (6th Cir. 1983); compare Grubbs, 807 F.3d at
794–95, with Wills, 118 N.W.2d at 956.
The district court summarily dismissed Geomatrix’s common-law unfair competition
claims, relying on this point that the analyses are the same. Yet Geomatrix’s argument that it
was error to do so in this context is well taken. Lexmark analyzed the statutory language of the
Lanham Act to determine that “the meaning of the congressionally enacted provision creat[ed] a
cause of action.” 572 U.S. at 128. Michigan common law does not rely on the words of a
statute, let alone a federal one. And the similar analyses for the two are under the “likelihood of
confusion” test—a set of factors that guide our analysis in determining whether such likelihood
exists. Compare Grubbs, 807 F.3d at 794–95, with Wills, 118 N.W.2d at 956. Simply put, our
inquiry here does not implicate this test.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 18
Yet this error does not mean that Geomatrix prevails, for it must still plead that
defendants’ actions are a proximate cause of its injuries. Michigan common law requires
causation as an element of any tort action: “In a tort action, an injured party may seek damages
for an injury caused by the breach of a legal duty.” Wright v. Genesee Cnty., 934 N.W.2d 805,
810 (Mich. 2019) (emphasis added); accord Charles Reinhart Co. v. Winiemko, 513 N.W.2d
773, 775 (Mich. 1994) (“As in any tort action, to prove proximate cause a plaintiff in a legal
malpractice action must establish that the defendant’s action was a cause in fact of the claimed
injury.”); Restatement (First) of Torts § 9 cmt. a (Am. L. Inst. 1934) (“To become liable to
another under the principles of the law of Torts, an actor’s conduct must not only be tortious in
character but it must also be a legal cause of the invasion of another’s interest.”). This principle
is deeply rooted in Michigan common law. See Wilson v. Bowen, 31 N.W. 81, 84 (Mich. 1887)
(“[T]he purpose of an action of tort is to recover the damages which the plaintiff has sustained
from an injury done him by the defendant . . . .”).
Given that causation is an essential element in any Michigan common-law tort claim,
Geomatrix’s state-law unfair competition claim must fail, largely for the same reasons as the
federal one. Its complaint fails to allege defendants’ actions were a proximate cause of its
injuries or that Michigan customers were confused or harmed by defendants’ disparaging
statements. Cf. Iqbal, 556 U.S. at 678. Instead, Geomatrix’s economic injuries resulted from the
decisions of state regulators that failed to certify Geomatrix’s products. Geomatrix has therefore
failed to state an unfair competition claim under Michigan law.
C.
We next address Geomatrix’s three other Michigan common-law business tort claims:
business defamation/injurious falsehood, fraud/misrepresentation, and interference with
prospective economic advantage.
1.
Geomatrix raised a “business defamation/injurious falsehood” claim against all
defendants. The district court dismissed this claim for two reasons—operation of a one-year
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 19
limitations period and that the disparaging statements were not “of and concerning” Geomatrix
specifically.
As a threshold matter, we note that business defamation and injurious falsehood, while
similar, are separate actions. See, e.g., 15 Mich. Civ. Jur. Libel & Slander §§ 4, 6 (2023);
compare Rouch v. Enquirer & News of Battle Creek, 398 N.W.2d 245, 252 (Mich. 1986)
(describing the elements of defamation), with Neshewat v. Salem, 173 F.3d 357, 364 (6th Cir.
1999) (describing the elements of injurious falsehood under Michigan law). This distinction
matters. “A false statement that casts aspersion upon both an individual personally and upon that
individual’s tangible or intangible property interest may result in damages to either the
individual’s reputation or his or her pecuniary interests or both.” Kollenberg v. Ramirez, 339
N.W.2d 176, 179 (Mich. Ct. App. 1983). Because the elements of the two overlap, a plaintiff
“may bring suit for both torts as long as damages are not duplicated.” Id. A plaintiff may
recover damages for a “professional reputation” injury in the defamation action, id., and “special
damages” in the injurious falsehood action, see Neshewat, 173 F.3d at 364. Further, when, as
here, there is a limitations question, these damages are also subject to separate limitations
periods—reputational damages resulting from defamation are subject to a one-year limitations
period, Mich. Comp. Laws § 600.5805(11), but “special pecuniary damages” are subject to a
three-year limitations period, id. § 600.5805(2). See Kollenberg, 339 N.W.2d at 180; Neshewat,
173 F.3d at 363–64.
With this background, we consider the business defamation claim. We agree with the
district court that the one-year limitations period, Mich. Comp. Laws. § 600.5805(11), applies,
but only in part. First, this period precludes considering any defamatory statements that occurred
before December 18, 2019 (and the complaint contains a host of these). Yet Geomatrix raises
other defamatory statements that occurred after this date, including a letter questioning the
“longevity of uncontained systems” in March 2020, publication of these letters to state regulatory
authorities, and a second straw poll. These are not barred by the limitations period, but they run
headlong into the need for the statements to be “concerning” Geomatrix specifically, as required
by Michigan law. See Rouch, 398 N.W.2d at 252. None of the alleged 2020 statements were
specifically about Geomatrix or its products; they instead questioned T&D systems generally.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 20
Libel actions do not lie when a statement expresses a general opinion about a topic without a
statement “of and concerning” the plaintiff. See Weiss v. Whittemore, 28 Mich. 366, 371–73
(Mich. 1873) (explaining that a libelous declaration must be “‘of and concerning the plaintiff’
with reference to his trade and business”); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254,
288–91 (1964) (rejecting a libel claim because a defamatory advertisement did not refer to the
plaintiff specifically). Nor is this a case in which the statements were directed to a small,
specific group of people. Cf. Smith v. Fergan, 450 N.W.2d 3, 4 (Mich. Ct. App. 1989)
(per curiam) (“Because plaintiff was one of two employees towards whom the statement was
directed, it is reasonable to conclude that the words were directed at plaintiff as a member of this
group.” (emphasis added)). Rather, all statements concerned an industry or type of product in
general. So the district court correctly dismissed this claim.
The analysis is slightly different for the injurious falsehood claim. Because of the
overlap between this and the defamation claim, Geomatrix’s recovery is limited to special
damages, not general reputational damages. See Kollenberg, 339 N.W.2d at 180. Moreover,
these are governed by a three-year limitations period, see id.; Mich. Comp. Laws § 600.5805(2),
so any statement in the complaint after December 18, 2017, may suffice. Though the complaint
describes several, this claim runs into a separate problem—the need to plead “special pecuniary
damages.” Kollenberg, 339 N.W.2d at 180. “Special damages are those that are unusual for a
type of claim,” i.e., “those damages that are the natural but not the necessary consequence of the
defendant’s conduct.” Fleet Bus. Credit v. Krapohl Ford Lincoln Mercury Co., 735 N.W.2d 644,
648 (Mich. Ct. App. 2007) (per curiam) (citation and emphasis omitted). Thus, a plaintiff is
entitled to them only if they are “specifically pleaded and proved.” Kratze v. Indep. Ord. of
Oddfellows, Garden City Lodge No. 11, 500 N.W.2d 115, 122 (Mich. 1993) (citation omitted).
Geomatrix makes no such claim of special pecuniary damages. At most, it makes a general
statement that it “has suffered actual damages, including pecuniary damages.” These pleadings
fail the heightened pleading requirement. As a result, Geomatrix has failed to state a claim for
injurious falsehood.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 21
2.
We next tackle Geomatrix’s other two business tort claims—fraud/misrepresentation and
interference with a prospective economic advantage. The district court dismissed these other tort
claims as relying on conduct immunized by Noerr-Pennington.
Michigan courts have applied the Noerr-Pennington doctrine outside the antitrust
context. While the Noerr-Pennington doctrine “has been applied mainly in antitrust matters,” it
“is a principle of constitutional law that bars litigation arising from injuries received as a
consequence of First Amendment petitioning activity, regardless of the underlying cause of
action asserted by the plaintiffs.” Azzar v. Primebank, FSB, 499 N.W.2d 793, 796 (Mich. Ct.
App. 1993) (per curiam) (emphasis added). In Azzar, the plaintiff sued a bank for breach of a
fiduciary duty based on alleged misrepresentations the bank’s board of directors had made to a
federal regulatory board, and the court held this was petitioning activity protected by the
doctrine. See id. at 795–96. And in Arim v. General Motors Corp., the court applied Noerr to a
suit for fraud and tortious interference—the exact claims at issue here. 520 N.W.2d 695, 699,
701–02 (Mich. Ct. App. 1994) (per curiam). The plaintiffs “offered nothing to show that
allowing immunity for the private defendants in these cases would abuse the First Amendment
into becoming the ultimate weapon—both a sword for achieving evil and a shield for preventing
liability.” Id. at 702 (internal quotation marks omitted); see also J & J Constr. Co. v. Bricklayers
& Allied Craftsmen, Loc. 1, 631 N.W.2d 42, 47–50 (Mich. Ct. App. 2001) (applying the doctrine
to a tortious interference claim), rev’d on other grounds, 664 N.W.2d 728 (Mich. 2003).
As Michigan courts have expressly applied the Noerr-Pennington doctrine to fraud and
tortious interference claims, we conclude that they would do the same here. 2 Thus, because
Geomatrix cannot make out a claim for fraud or tortious interference because it relies on
immunized conduct, see Iqbal, 556 U.S. at 678, dismissal of these claims is proper.
2Even though the Michigan Supreme Court has not addressed Noerr-Pennington in a similar context, cf. J
& J Constr. Co. v. Bricklayers & Allied Craftsmen, Loc. 1, 664 N.W.2d 728, 735 (Mich. 2003) (expressly declining
to consider the doctrine’s applicability), decisions of the Michigan Court of Appeals are still “relevant data” for our
consideration, see Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995) (citation
omitted). And plaintiffs give us no reason to find fault with those lower-court decisions.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 22
D.
We continue with Geomatrix’s consumer protection claims under the Michigan
Consumer Protection Act, Mich. Comp. Laws § 445.901, et seq. The district court dismissed
these claims because the services provided by NSF fall outside the ambit of those covered by the
MCPA and because the underlying conduct was protected under Noerr-Pennington.
Geomatrix argues the MCPA covers a business certification because the Act does not
require a “consumer” transaction involving a “purchase” of goods. We disagree. Start with the
Act’s text. It prohibits “[u]nfair, unconscionable, or deceptive methods, acts, or practices in the
conduct of trade or commerce . . . .” Mich. Comp. Laws § 445.903(1). Yet “[t]rade or
commerce” is defined as the “conduct of a business providing goods, property, or service
primarily for personal, family, or household purposes.” Id. § 902(g) (emphasis added). And
consider caselaw construing this text, which establishes that we must consider the purpose of the
“good” at issue. For example, in Slobin v. Henry Ford Health Care, the Michigan Supreme
Court held that the MCPA did not cover a law firm’s request for medical records, as “obtaining
medical records for the purpose of litigation is not primarily for personal, family, or household
use.” 666 N.W.2d 632, 634 (Mich. 2003). It wanted these records “so that the law firm itself
could engage in its own business or commercial enterprise, namely, the evaluation and pursuit of
legal avenues to procure financial rewards and other relief for its client.” Id. at 635; see also
Zine v. Chrysler Corp., 600 N.W.2d 384, 393 (Mich. Ct. App. 1999) (holding that a truck bought
by a business was not protected by the MCPA because the court must consider “the primary use
to which the consumer puts the product” and “if an item is purchased primarily for business or
commercial rather than personal purposes, the MCPA does not supply protection”). And in
MacDonald v. Thomas M. Cooley Law School, we followed the same analysis, holding that a
law-school degree was not a consumer good; the students sought it out “to prospectively better
themselves and their personal circumstances through the attainment of full-time employment in
the legal sector,” or, in other words, “to make money.” 724 F.3d 654, 661–62 (6th Cir. 2013)
(emphasis omitted).
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 23
The MCPA and related caselaw confirm that Standard 40 certification is not a
“consumer” good or service. The service or product “sold” by NSF to Geomatrix was its
Standard 40 certification. Geomatrix’s purpose in obtaining NSF certification was to market and
sell its product more effectively: because “[c]ertification to NSF/ANSI 40 provides . . . access to
the onsite residential wastewater market” Geomatrix “should have been able to obtain state
regulatory approvals in states requiring NSF/ASNI [sic] Standard 40 certification.” First
Amended Complaint, R. 24, PageID 406–07, 432 (first alteration in original). The consequence
of the purported campaign against Geomatrix was its inability to sell its products. The complaint
makes clear, then, that Geomatrix sought the certification for its own business purposes—i.e.,
obtaining regulatory approval and marketing its product to consumers. This certification is not a
good that can be “pass[ed] . . . along” to consumers but something to help it “engage in its own
business or commercial enterprise,” Slobin, 666 N.W.2d at 635, or, in other words, “to make
money,” MacDonald, 724 F.3d at 661. Thus, since the good or service at issue is obviously not a
consumer one, the MCPA cannot apply and Geomatrix has not made out a plausible claim for
relief. Iqbal, 556 U.S. at 678. So dismissal of this claim was also proper.3
E.
We reach the last of Geomatrix’s substantive merits claims on 12(b)(6) review,
promissory estoppel. The district court concluded that this claim failed for lack of a “sufficiently
definite” promise to Geomatrix.
Michigan follows the doctrine of promissory estoppel as stated in the Restatement: “A
promise which the promisor should reasonably expect to induce action or forbearance on the part
of the promisee or a third person and which does induce such action or forbearance is binding
if injustice can be avoided only by enforcement of the promise.” State Bank of Standish
v. Curry, 500 N.W.2d 104, 107 (Mich. 1993) (quoting Restatement (Second) of Contracts § 90
(Am. L. Inst. 1981)). This analysis requires a “clear and definite” promise, that is, the
“manifestation of intention to act or refrain from acting in a specified way, so made as to justify
a promisee in understanding that a commitment has been made.” Id. at 108 (citation omitted).
3And given this conclusion, we expressly decline to address the district court’s alternative holding that
Michigan courts would apply Noerr-Pennington immunity to MCPA claims.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 24
Moreover, this inquiry also depends on the surrounding context: “To determine the existence
and scope of a promise, we look to the words and actions of the transaction as well as the nature
of the relationship between the parties and the circumstances surrounding their actions.” Id. at
109.
Geomatrix relies on purported promises espoused by NSF in its “Antitrust Guide” and
“Standards Development Policy,” both of which are internal documents detailing how NSF
should operate. As for the Antitrust Guide, most of the alleged promises describe the actions that
NSF, its employees, or participants “should” take. For example, “[a]ffected parties should be
allowed [to] participate in the formulation of standards in a meaningful manner,” and
“[s]tandards should not limit the number and type of products, except for safety reasons.” Only
one statement describes something that NSF must do: “Standards programs must not be used as
devices to fix prices, reduce output, boycott competitors, or otherwise lessen competition.
Standard setting activities may raise antitrust concerns when competitors are required to share
competitive information with each other.” As for the Development Policy, Geomatrix does not
identify any specific statement made by NSF; it instead points to overall sections of the policy
that NSF allegedly violated, such as “Openness,” “Communications,” and “Meetings.” Though
Geomatrix does not identify any specific statement here, this policy largely says that NSF “shall”
act in certain ways in developing its standards.
We agree with the district court that these statements are not promises. For one, the
statements’ words themselves do not convey a promise. “Must” and “should” in this context
suggest a command or request. See Must, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/must (last accessed August 8, 2023). They indicate internal directives,
not promises. Just because NSF tells itself to act in a particular way does not mean that it will do
so. These statements are like NSF expressing an opinion on how it should or will act in the
future. See Curry, 500 N.W.2d at 108 (“[A] promise must [also] be distinguished from a
statement of opinion or a mere prediction of future events.” (second alteration in original;
quotation marks omitted)). And as for the supposed statements in the Development Policy,
Geomatrix does not point to any specific promise, meaning that it fails to plead that part of its
case with sufficient particularity. See Iqbal, 556 U.S. at 686–87; cf. McGrew v. Duncan, 937
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 25
F.3d 664, 669 (6th Cir. 2019) (“A party may not present a skeletal argument, leaving the court to
put flesh on its bones.” (citation omitted)).
In any event, the context of these statements confirms that none were intended to be a
promise, let alone one to external entities. See Curry, 500 N.W.2d at 109. The statements are in
guides published for NSF’s own internal benefit. Overall, the guides contain generic directives
designed to guide NSF’s standard-setting process and to help the organization avoid antitrust
issues. They were disseminated to individuals involved in the standard-setting process and used
at the accompanying meetings. So these statements were not directed toward Geomatrix or
similarly situated entities; rather, they were directed to NSF and its employees as directions on
how they “should,” “must,” or “shall” act. Nothing identified by Geomatrix indicates a warranty
or assurance to outside parties as to how NSF will actually conduct its business or whether it will
be successful in avoiding antitrust concerns. In sum, these statements are not “manifestation[s]
of intention[s] to act” in a specific way, but guidelines as to how NSF instructs its employees to
act. Id. at 108–09; see also DBI Invs., LLC v. Blavin, 617 F. App’x 374, 385–87 (6th Cir. 2015)
(holding that a financial advisor’s generic statements about “investment principles” and
“intentions to perform with integrity” in a partnership agreement were not promises). This claim
also fails.
IV.
In addition to its substantive claims, Geomatrix raises one procedural claim—that the
district court committed error requiring reversal by failing to address its informal and nonspecific
request to amend its complaint.4 Federal Rule of Civil Procedure 15(a)(2) allows a party to
amend its complaint with the court’s leave, and the court should “freely” do so “when justice so
requires.” When such a motion to amend is brought, the district court must act upon it and
should explain its reasons for granting or denying the motion; failure to do so is an abuse of
discretion. See Foman v. Davis, 371 U.S. 178, 182 (1962). Yet this does not apply when a party
does not file a “a formal motion to amend.” See Crosby v. Twitter, Inc., 921 F.3d 617, 627–28
4Geomatrix also makes vague complaints about the district court’s decision to decide the case without oral
argument. But it did not include this issue “in the table of contents or in the ‘issues presented’ section” of its brief,
so such contentions are forfeited. See United States v. Calvetti, 836 F.3d 654, 664 (6th Cir. 2016).
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 26
(6th Cir. 2019). When “a party does not file a motion to amend or a proposed amended
complaint, it is not an abuse of discretion for the district court to dismiss the claims with
prejudice.” Id. (citations omitted).
This dooms Geomatrix’s arguments. Here, it is undisputed Geomatrix never filed a
motion to amend its complaint and thus the district court never addressed the issue. Instead,
Geomatrix’s nonspecific request was in a couple of paragraphs at the end of its response to
defendants’ motion for dismissal. Geomatrix neither moved to amend its complaint nor put
forward a proposed second amended complaint, meaning that it never filed a motion under Rule
15(a). Consequently, Foman’s requirement that the district court explain its reason for the denial
of a motion does not apply. See id.
V.
For the foregoing reasons, we affirm the judgment of the district court.
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 27
_________________
CONCURRENCE
_________________
MURPHY, Circuit Judge, concurring in part and concurring in the judgment in part.
I agree with Judge Griffin’s excellent opinion in all respects but one. I would prefer to resolve
two of Geomatrix’s state-law claims—for fraud and tortious interference with prospective
economic advantage—on different grounds. The majority reasons that the Michigan Supreme
Court would extend the U.S. Supreme Court’s “Noerr-Pennington” doctrine to these claims.
I am not so sure.
In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127
(1961), the Supreme Court held that the Sherman Antitrust Act did not reach an agreement
among competitors to lobby “the legislature or the executive to take particular action with
respect to a law that would produce a restraint or a monopoly.” Id. at 136. The Court presumed
that Congress did not mean to cover petitioning activity because the First Amendment protects
the right “to petition the government for a redress of grievances.” U.S. Const. amend I; Noerr,
365 U.S. at 138. Critically, however, the Court disavowed ruling on any First Amendment
claim. Noerr, 365 U.S. at 132 n.6. It instead invoked the canon of constitutional avoidance and
interpreted the antitrust laws to exclude this type of activity as a matter of statutory
interpretation. Id.; see also United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669–71
(1965). I thus read Noerr-Pennington to adopt an antitrust rule, not a constitutional one.
Yet some Michigan courts have instead treated the Noerr-Pennington doctrine as “a
principle of constitutional law that bars litigation arising from injuries received as a consequence
of First Amendment petitioning activity, regardless of the underlying cause of action asserted by
the plaintiffs.” Azzar v. Primebank, FSB, 499 N.W.2d 793, 796 (Mich. Ct. App. 1993) (per
curiam); see Arim v. Gen. Motors Corp., 520 N.W.2d 695, 700–01 (Mich. Ct. App. 1994) (per
curiam). These courts have rejected common-law claims for breach of fiduciary duty, fraud, or
tortious interference (among others) when the claims rested on the defendants’ decision to
petition government officials. See Arim, 520 N.W.2d at 699, 701; Azzar, 499 N.W.2d at 795–96.
They reasoned that this petitioning activity was “constitutionally protected under the First
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 28
Amendment.” Arim, 520 N.W.2d at 700. One case even accepted a complaint’s allegations that
the defendants had intentionally lied to the government but then held that “knowing falsehoods
are generally protected from liability under the First Amendment right to petition because
citizens would be deterred from petitioning the government if that were not so.” Azzar, 499
N.W.2d at 796.
I have two concerns with relying on this caselaw to dispose of Geomatrix’s fraud and
tortious-interference claims. For one thing, I do not believe we need to give any persuasive
weight to these cases on the question that they decide. To be sure, I agree that we would have to
accept the Michigan Supreme Court’s interpretation of Geomatrix’s common-law claims if that
court chose to incorporate Noerr-Pennington’s constitutional-avoidance logic into the state
causes of action. See Erie R. Co. v. Tompkins, 304 U.S. 64, 80 (1938). And I also agree that we
may look to Michigan intermediate decisions to help make this “Erie guess” on the scope of
these state-law claims. See, e.g., AtriCure, Inc. v. Meng, 12 F.4th 516, 531 (6th Cir. 2021). But
the plain language of these Michigan intermediate decisions shows that they did not interpret the
scope of the state-law claims. They instead purported to resolve a federal constitutional question
about the meaning of the First Amendment. And no Erie principle of which I am aware requires
a federal circuit court to defer to a state intermediate court about the meaning of the U.S.
Constitution. See, e.g., Tower Realty Co. v. City of East Detroit, 185 F.2d 590, 593 (6th Cir.
1950).
For another thing, I am dubious of the state courts’ resolution of this federal
constitutional question. In a significant departure from traditional common law, the U.S.
Supreme Court famously held that the First Amendment restricts some defamation actions by
requiring the plaintiff to prove that the defendant made a false statement “with ‘actual malice’—
that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); cf. Coral Ridge Ministries Media, Inc.
v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2454 (2022) (Thomas, J., dissenting from the denial of
certiorari). But the state courts would go much further than New York Times by holding that the
First Amendment protects even knowingly false statements. See Azzar, 499 N.W.2d at 796.
That view strikes me as questionable. Even the Supreme Court case giving the most expansive
No. 22-1947 Geomatrix, LLC v. NSF Int’l, et al. Page 29
protection to intentional lies recognized that the First Amendment would not insulate those lies if
they caused a “legally cognizable harm[.]” United States v. Alvarez, 567 U.S. 709, 719 (2012)
(plurality opinion).
The state courts’ broad view also conflicts with established Michigan law in other areas.
For example, under the tort of malicious prosecution, Michigan imposes liability on an alleged
“victim” who knowingly lies to prosecutors that another person has committed a crime. See
Matthews v. Blue Cross & Blue Shield of Mich., 572 N.W.2d 603, 613 (Mich. 1998); see also
Restatement (Second) of Torts § 653 (Am. L. Inst. 1977). Under the logic of these state
intermediate decisions, however, the First Amendment might protect this “petitioning” activity.
So I do not find it surprising that the Michigan Supreme Court has expressed “reservations”
about the way in which the intermediate courts have extended the Noerr-Pennington doctrine.
J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Local 1, 664 N.W.2d 728, 734 (Mich.
2003).
I would instead resolve these two tort claims on other grounds. As for Geomatrix’s fraud
claim against NSF, that claim required the company to prove that NSF’s conduct proximately
caused its economic harms. See, e.g., Kheder Homes at Charleston Park, Inc. v. Charleston
Park Singh, LLC, 2014 WL 60326, at *3 (Mich. Ct. App. Jan. 2, 2014). And the majority
explains well why Geomatrix has failed to plausibly plead this proximate-causation element. As
for Geomatrix’s tortious-interference claim, that claim required the company to identify a
business expectancy that had “a reasonable likelihood or probability” of coming to fruition.
Cedroni Ass’n, Inc. v. Tomblinson, Harburn Assocs., Architects & Planners, Inc., 821 N.W.2d 1,
3 (Mich. 2012) (citation omitted). “[M]ere wishful thinking” does not cut it. Id. (citation
omitted). Michigan courts have also suggested that a plaintiff should “identify a relationship
with [a] particular business partner or a particular expectancy that was terminated.” Endoscopy
Corp. of Am. v. Kennan, 2023 WL 2439487, at *5 (Mich. Ct. App. Mar. 9, 2023) (per curiam).
Here, however, Geomatrix’s complaint plausibly pleaded, at most, “wishful thinking” that it
would have generally increased its sales but for the defendants’ conduct. That type of allegation
fails to state a tortious-interference claim.
For these reasons, I concur in part and concur in the judgment in part.