Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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1 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 1 of 23 OMEGA FLEX, INC., IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS v. Plaintiff, Case No. 1:08-cv RWZ CUTTING EDGE SOLUTIONS, LLC and ROBERT TORBIN, Defendants. OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION DATED: January 8, 2009 Respectfully submitted, ROBERT TORBIN and CUTTING EDGE SOLUTIONS, LLC, By their attorney, Mitchell J. Matorin (BBO #649304) MATORIN LAW OFFICE, LLC 200 Highland Avenue Suite 306 Needham, MA (781) mmatorin@matorinlaw.com

2 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 2 of 23 INTRODUCTION This lawsuit, and Plaintiff s Motion for a Preliminary Injunction ( Motion ), are a transparent effort to punish Defendants Cutting Edge Solutions, LLC and Robert Torbin (collectively, Torbin ) for expressing to two government agencies Mr. Torbin s expert opinions as to the proper installation of flexible gas tubing systems to reduce the chance of devastating fires caused by indirect lightning strikes. Plaintiff fails to satisfy the rigorous standards for preliminary injunctive relief, and the Court should deny the Motion. 1 FACTUAL BACKGROUND I. Corrugated Stainless Steel Tubing ( CSST ) Natural gas is commonly used in homes (and other buildings) as fuel for furnaces, water heaters, cooking appliances, and for other uses. The gas travels underground through large pipes that are connected to smaller metal gas piping systems within each home, which carry the gas to the needed locations. Traditionally, these individual gas piping systems were made from strong but rigid black iron. The black iron pipe cannot be bent and must be individually cut and threaded in the field to fit around obstacles and according to the specific layout of the building. (Declaration of Robert Torbin in Opposition to Preliminary Injunction 12) ( Torbin Decl. ) Although black iron pipe is still in common use, recently several manufacturers have developed and marketed a new type of pipe known as Corrugated Stainless Steel Tubing ( CSST ). CSST is a very thin (approximately 0.2 mm thick compared to approximately 4 mm 1 Plaintiff s Motion is explicitly limited to Counts I (Federal Lanham Act) and IV (Massachusetts Business Defamation) of the Complaint. (Pl. Mem. in Support at 18 n. 5.) This Opposition therefore focuses only on those Counts. Although Plaintiff purports to reserve the right to renew its motion to argue the other Counts should the Court deny its motion, it has no such right. Rather, it was obligated to present all of its arguments in a single motion and has waived any argument for preliminary injunctive relief on any Count not argued in the Motion. 1

3 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 3 of 23 for black iron) and flexible pipe that is typically sold with a yellow polyethylene jacket that helps protect it from damage during installation and acts as a means of identification. Because it is thin and flexible, it is often more quickly and efficiently installed than black iron pipe. (Torbin Decl. 13.) While the benefits of CSST are not insignificant, it has its own set of installation and safety issues. One of them is that CSST is more vulnerable to damage from nearby lightning strikes than black iron pipe. 2 If lightning strikes a nearby tree or the ground, the electrical charge travels through the earth and, if underground metal gas pipes are in the area, it will travel through them into the building. The electrical charge creates a voltage imbalance between the metal gas pipes and any nearby electrically conductive systems such as copper water pipes, electrical wiring, or structural steel. If great enough, the imbalance will lead to arcing of electricity to or from the energized metal gas piping to one of the nearby conductive systems. Because CSST is so thin, the arcing presents a substantial risk of creating a small perforation in the CSST that allows the gas to escape. In the presence of the electrical arc damage, the gas can ignite and, because it is pressurized and continuously delivered to the home, a standing flame can result and cause a devastating fire. Such fires have been the subject of news stories around the country. (E.g., Good Morning America, Oct. 16, 2007; and Fox 23 News, Tulsa, OK, Nov. 24, 2007.) (Torbin Decl and Exhibit 3.) These fires were also the focus of a class action lawsuit against four manufacturers of CSST, including Plaintiff Omega Flex. Lovelis, et al. v. Titeflex Corporation, et al., Case No. 2 The damage caused by direct lightning strikes exceeds the capacity of engineers to reasonably address. We are concerned here with damage caused by indirect lightning strikes. (Torbin Decl. 16.) 2

4 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 4 of 23 CIV (Circuit Court of Clark County, Arkansas) (the Class Action ). The Class Action plaintiffs alleged that CSST was unreasonably dangerous and provided insufficient protection against lightning and that the manufacturers knew of the problem and failed to adequately notify installers of the need to electrically connect ( bond ) the CSST piping directly to a home s grounding electrode to protect against lightning-caused arcing. The Arkansas court approved a settlement of the Class Action on September 5, As part of the settlement, CSST manufacturers agreed to modify their installation guidelines to warn of the danger lightning posed, to require that their CSST be installed according to the installation guidelines and local codes, and to require that their products be directly bonded to the grounding electrode of the home. II. Industry and Government Regulation of CSST Installation Gas pipe installation is regulated by state and local building codes. Some local jurisdictions simply adopt, in whole or in part, the National Electric Code ( NFPA 70 ) and the National Fuel Gas Code ( NFPA 54 ), which are national model standards. The model codes undergo periodic (typically 3 years) review, and in such cases the local jurisdictions must specifically adopt the new version of the model code. However, this process can take a year or more, during which time the local code is outdated. Some jurisdictions have adopted other model codes or have imposed their own standards that may be more rigorous than the model codes. Manufacturers of gas piping systems also may impose their own requirements for the proper installation of their products, as long as they are at least as strict as the applicable codes. All CSST manufacturers specify that where there is no applicable local code, installation must be in accordance with the then-current edition of NFPA 70 and NFPA 54. (Torbin Decl ) 3

5 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 5 of 23 Bonding is an electrical connection between conductive systems to establish electrical continuity and conductivity. There are two basic types of bonding. Indirect bonding of CSST electrically connects it to the wiring system contained within an electrically powered appliance that is connected to the service panel via the equipment grounding conductor. The purpose of this connection is to operate the over-current protection devices (circuit breakers) that are provided to protect the consumer from electrical shock. (Torbin Decl ) Direct bonding electrically connects the gas piping system directly to the grounding electrode system of a building, and is intended to protect the connected systems from the impact of high voltage surges associated with lightning or dropped power lines. This bonding connection consists of a clamp and bonding wire from the gas piping directly to one of the grounding electrodes. 3 Direct bonding permits the gas piping system to be energized at or near the same voltage level of the building s electrical system and in unison with the voltage pulse caused by a direct or indirect lightning strike. (Torbin Decl. 21.) While indirect bonding protects against electrical shock, it provides no real protection against the electrical surge caused by a lightning strike. Direct bonding, by contrast, provides significant protection and reduces the chance of electrical arcing between the gas piping system and any nearby electrically-conductive system. (Torbin Decl. 21.) The previous version of NFPA 54 (2006) did not have a section explicitly dealing with the bonding of CSST systems. Instead, it dealt generally with gas piping systems, for which it only required indirect bonding. Accordingly, CSST gas piping systems typically were only indirectly bonded. (Torbin Decl. 25.) On September 5, 2008, the 2009 version of NFPA 54 was approved by ANSI. Unlike the prior version, NFPA 54 (2009) distinguishes between non- 3 A grounding electrode is a device that establishes an electrical connection to the Earth. 4

6 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 6 of 23 CSST and CSST gas piping systems and explicitly requires direct bonding of CSST. (Torbin Decl. 25 and Exhibit 4.) As Omega Flex s installation instructions require compliance with the current edition of NFPA 54 (as do all CSST manufacturers instructions), CounterStrike is required to be directly bonded just like any other CSST product. (Torbin Decl. 25.) III. Omega Flex Marketing of CounterStrike and Improved CounterStrike As noted above, Omega Flex was one of the defendants in the Class Action. At issue were its regular TracPipe CSST product, which had the typical yellow jacket, and an earlier version of its CounterStrike CSST product ( original CounterStrike ), which had a black jacket. Omega Flex had marketed original CounterStrike as being resistant to lightning damage because of special electrical properties of its black jacket. Still, Omega Flex s installation instructions for the original CounterStrike product required that it (like TracPipe) be directly bonded. (Torbin Decl. 27 and Exhibit 6.) After the Class Action settlement, Omega Flex continued to require direct bonding for CounterStrike. See, e.g., TracPipe Flexible Gas Piping Design Guide and Installation Instructions, 4 version FGP-001 Rev , at 69 (requiring shortest possible jumper wire to bond gas tubing to grounding electrode) and 71 (checklist to verify that CounterStrike is bonded to grounding electrode) (Torbin Decl. Exhibit 6). In approximately August 2007, Omega Flex released an improved or secondgeneration version of CounterStrike ( Improved CounterStrike ), which Omega Flex promoted as being more lightning resistant than original CounterStrike. 5 Seeing an opportunity to gain a market edge, Omega Flex began distinguishing Improved CounterStrike from its competitors 4 Omega Flex considers CounterStrike to be an enhanced version of its TracPipe product and does not publish separate installation guides for CounterStrike. 5 It is important to note that no nationally-recognized, third-party testing organization has independently certified or verified (based on any nationally-recognized standard) claims as to the lightning resistance of either original or Improved CounterStrike. (Torbin Decl. 29.) 5

7 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 7 of 23 and original CounterStrike by promoting it as requiring no additional bonding beyond that specified in NFPA 54 (which, until September 5, 2008, required only indirect bonding). Omega considered this to be a major marketing advantage and heavily promoted it. For example, in response to the Good Morning America broadcast (see page 2 above), Omega Flex issued a press release contesting several statements made during the report, including the following: See Exhibit 7 to Torbin Affidavit. Similarly, in December 2007 Omega Flex issued an Installation Bulletin for CounterStrike that included the following information: There are no special installation requirements for CounterStrike date coded 0731 and higher. The bonding requirements for CounterStrike are per National Electrical Code NFPA 70 Article and the National Fuel Gas Code NFPA 54. No additional bonding is required. Installation Bulletin for CounterStrike, FGP-554 Rev 12-07, Torbin Decl. Exhibit 8. 6 On or about January 14, 2008, Mr. Torbin downloaded Omega Flex s Design Guide and Installation Instructions, FGP-001 Rev (the December 2007 D&I Guide ), from Omega Flex s public website. 7 (Torbin Decl. 32.) Consistent with Omega Flex s other publiclyreleased instructions and publicity documents, that Guide stated that: 6 The phrase CounterStrike date coded 0731 and higher refers to Improved CounterStrike. 7 Plaintiff asserts that this was a draft that was never released to the public. The.pdf file that Mr. Torbin downloaded contains metadata that indicates that it was created on October 25, (Torbin Decl. 33 and Exhibit 10.) Although it bears the same date and Revision number as the December 2007 D&I Guide that Mr. Torbin downloaded, the.pdf file of this document that is currently available on Omega Flex s website, the text of which matches the version that Omega Flex has attached as Exhibit A to its Complaint, contains metadata that indicates that it was not created until January 25, (Torbin Decl. 33 and Exhibit 11.) 6

8 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 8 of 23 (Torbin Decl. Exhibit 9 at 69.) In approximately February 2008, Omega Flex issued a white paper touting the supposed benefits of Improved CounterStrike. That document emphasizes the significantly higher levels of lightning energy that Improved CounterStrike supposedly can withstand as compared to the original CounterStrike product and, of course, to conventional TracPipe or other CSST products with the yellow jacket. (See Improved CounterStrike, FGP /08 at 1, Torbin Decl. Exhibit 14.) The white paper again emphasizes that, unlike other products whose manufacturers require direct bonding, Improved CounterStrike need be bonded only in accordance with the current requirements of NFPA 70 and NFPA 54, and stresses the costsavings that may be achieved where there are no more rigorous local code requirements: * * * (Torbin Decl. Exhibit 14 at 2.) Similar instances of Omega Flex s marketing of Improved CounterStrike abound. See Torbin Decl. 37 and Exhibit 15 (March 2008 CounterStrike FAQ); 38 and Exhibit 16 (July 7

9 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 9 of 23 18, 2008 Omega Flex petition for approval of Improved CounterStrike submitted to Michigan Bureau of Construction Codes). As of the date of this filing, Omega Flex continues to represent publicly on its website that CounterStrike may be installed with no additional bonding beyond that required by the model codes that (until recently) required only indirect bonding: (Learn More About CounterStrike web page, Torbin Decl. Exhibit 17.) In fact, Omega Flex explicitly makes this claim in its Complaint. (Complaint 23.) IV. Mr. Torbin s Presentation to the New Hampshire Fire Marshal on September 16, 2008 In September 2008, the New Hampshire State Fire Marshal scheduled a meeting of state plumbing/electrical and fire inspectors, to collect information to formulate new or modified regulations about CSST bonding. (Torbin Decl. 43.) The Fire Marshal solicited the CSST industry to make presentations. This was a closed door meeting at which only state inspection personnel were present there were no public attendees. (Torbin Decl. 44 and Exhibit 21.) Mr. Torbin made a presentation, as did Omega Flex. (Torbin Decl. 44,48.) Mr. Torbin s presentation provided a technical overview of the problem of lightninginduced fires in connection with CSST and explained the new bonding requirements for CSST under NFPA 54 (2009), which had been approved on September 5, (Torbin Decl. 46.) As a guide to his oral presentation, Mr. Torbin presented a series of PowerPoint slides; as is 8

10 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 10 of 23 almost always the case with PowerPoint slides, they did not represent everything that he said or the full context of his remarks. (Torbin Decl. 45 and Exhibit 22.) 8 All of the attendees, including Omega Flex s representative, had the opportunity to ask Mr. Torbin questions, request clarification of anything he said, or challenge anything it believed was wrong or disparaging to Omega Flex. Omega Flex did not do so; nor did it use its own presentation to dispute anything that Mr. Torbin had said. (Torbin Decl. 47.) V. Mr. Torbin s Presentation to the Massachusetts Plumbers Board on November 5, 2008 In the face of widespread confusion among installers and inspectors over bonding requirements for CSST piping, the Massachusetts Office of the Board of Examiners of Plumbers and Gas Fitters ( MA Plumbers Board ) met on November 5, 2008 to solicit opinions to inform its decision on whether to suspend approval of CSST in Massachusetts until it had developed a comprehensive position. The MA Plumbers Board invited Mr. Torbin to present his opinions. During that meeting, Mr. Torbin discussed various issues relating to the bonding of CSST, the dangers posed by lightning strikes, and the explicit direct bonding requirement for CSST included in NFPA 54 (2009), which had been adopted two months earlier. (Torbin Decl. 54.) Mr. Torbin distributed various documents, including a portion of NFPA 70 (2008), an excerpt from NFPA 54 (2009) showing the new CSST direct bonding requirements, the product listings (from CSA-America) for all CSST products, and portions of CSST design and installation guides for Omega Flex, GasTite, WardFlex, and Parflex CSST products. (Torbin Decl. 55; Complaint Exh. D.) The portion of the Omega Flex Guide that he presented was taken from the document he had downloaded from Omega Flex s website on January 14, (Torbin Decl. 32.) Omega Flex was present for this discussion and again had the opportunity 8 Omega Flex attached a partial set of these slides as Exhibit C to its Complaint but omitted slides and

11 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 11 of 23 to ask questions or challenge any of his statements, but did not do so. In particular, it did not question the portions of the Omega Flex 2007 D&I Guide that Mr. Torbin distributed or suggest that he had distributed a draft of the Guide. (Torbin Decl. 56.) The MA Plumbers Board reconvened on November 26, 2008 to continue the discussion and again asked Mr. Torbin to speak. Representatives of Omega Flex also spoke. The Omega Flex representatives did not call into question anything that Mr. Torbin had said at the meeting two weeks earlier, nor did they challenge the 2007 D&I Guide he had distributed as a draft despite having had two weeks to discover the alleged problem. (Torbin Decl. 57.) At the November 26 meeting, it was apparent to Mr. Torbin that the MA Plumbers Board had decided to suspend approval of CSST until the bonding issues had been resolved. The Board formally banned CSST effective December 1, (Torbin Decl. 59 and Exhibit 23.) ARGUMENT Omega Flex has not come close to meeting the rigorous standard for a preliminary injunction. Omega Flex cannot show a likelihood of success on the merits of Counts I and IV of the Complaint (the only Counts at issue in its Motion). It will not suffer any ongoing or irreparable injury in the absence of preliminary relief, and the balance of harms does not favor Omega Flex. Finally, an injunction is counter to the overwhelming public interest in permitting Mr. Torbin to continue expressing his expert opinions to assist regulatory agencies in understanding and adopting uniform standards for CSST as a pressing matter of public safety. I. Omega Flex Cannot Show a Likelihood of Success on the Merits of Count I (Lanham Act) or Count IV (Business Defamation) of the Complaint. A. Lanham Act, 15. U.S.C. 1125(a)(1). Section 43(a)(1)(B) of the Lanham Act provides in relevant part that: 10

12 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 12 of 23 Any person who, on or in connection with any goods uses in commerce any false or misleading description of fact, or false or misleading representation of fact, which (B) in commercial advertising or promotion, misrepresents the nature, characteristics [or] qualities of another person s goods or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such an act. 15 U.S.C. 1125(a)(1) (emphasis added). 1. Omega Flex Lacks Standing. To have standing to bring a Lanham Act false advertising claim, the plaintiff must be a competitor of the defendant and allege a competitive injury. Telecom Int l America, Ltd. v. AT&T Corp., 280 F.3d 175 (2d Cir. 2001) (internal quotation omitted); see also Waits v. Frito- Lay, Inc., 978 F.2d1093, 1109 (9th Cir. 1992); L.S. Heath & Son, Inc. v. AT & T Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir. 1993); Silva v. Burt s Bees, Inc., 2001 WL (D. Me. 2001) (granting summary judgment where defendant was not a competitor); compare Podiatrist Ass n v. La Cruz Azul de Puerto Rico, Inc., 332 F.3d 6, 19 (1 st Cir. 2003) (Lanham Act defendant must be a competitor of the plaintiff in some line of trade or commerce ). Mr. Torbin does not compete with Omega Flex. He does not manufacture or sell any CSST products. He is an independent expert and consultant who provides consulting services to CSST manufacturers and governmental agencies who rely on his expertise to develop regulatory standards. That he happens to consult for some of Omega Flex s competitors is no reason to conclude that Mr. Torbin himself is a competitor. Omega Flex s suggestion that by acting as a consultant Mr. Torbin somehow competes with it is facially absurd; if true, then Mr. Torbin simultaneously competes not only with Omega Flex, but with Ward Manufacturing, TiteFlex Corporation, Parker Hannifin Corporation, True-Flex Metal Hose, and Metal-Fab (and by 11

13 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 13 of 23 extension, with himself), because he provides paid and unpaid services to all of those CSST manufacturers. Omega Flex therefore lacks standing to press its Lanham Act claim. 2. Mr. Torbin s Statements Were Not Commercial Advertising or Promotion. A crucial limitation of the Lanham Act is that it prohibits misrepresentations only in commercial advertising or promotion. Podiatrist Ass n v. La Cruz Azul de Puerto Rico, Inc., 332 F.3d 6, 19 (1 st Cir. 2003). To be commercial advertising or promotion, a statement must: (a) constitute commercial speech (b) made with the intent of influencing potential customers to purchase the speaker's goods or services (c) by a speaker who is a competitor of the plaintiff in some line of trade or commerce and (d) disseminated to the consuming public in such a way as to constitute advertising or promotion. Id. Omega Flex s failure to satisfy any of these elements is fatal to its claim, Encompass Ins. Co. v. Giampa, 552 F. 2d 300, 311 (D. Mass. 2007), but it cannot satisfy any of them. a. The statements were not commercial speech. The core notion of commercial speech is speech which does no more than propose a commercial transaction. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 422 (1993) (emphasis added); Landrau v. Solis-Betancourt, 554 F. Supp. 2d 117, 123 (D.P.R. 2008); Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d Cir. 2004). None of the complained-of statements proposed a commercial transaction at all, let alone did no more than that. Mr. Torbin did not even suggest that any person purchase or not purchase any CSST product. 9 Mr. Torbin has no opinion and has expressed none on whether anybody should purchase CounterStrike he expressed only his expert opinions about bonding requirements, as requested by two government agencies. (Torbin Decl. 43, 46, 50, 52, 54, and 57.) 9 Even if, Mr. Torbin had an economic motive for making the statements in question (and he did not), this would be insufficient to transform them into commercial speech. Landrau, 554 F. Supp. 2d at 124 (citing Bolger v. Youngs Drugs Prods. Corp., 463 U.S. 60, 67 (1983)). 12

14 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 14 of 23 b. No intent to influence customers to purchase the speaker s goods. Mr. Torbin s alleged statements did not reflect an intent of influencing potential customers to purchase the speaker s [i.e., Mr. Torbin s] goods or services, both because Mr. Torbin intended only to provide information to two government agencies seeking to understand a matter of public safety and because he sells no CSST products that he even theoretically could influence a customer to purchase. See Rotbart v. J.R. O'Dwyer Co., 34 U.S.P.Q. 2d 1085 (S.D.N.Y. 1995) (newsletter comments not advertisement intended to influence potential customers where not employed for express purpose of influencing customers to buy competitor's goods). c. Mr. Torbin is not a competitor of the plaintiff. As discussed above, Mr. Torbin is not and cannot reasonably be considered a competitor of the plaintiff in some line of trade or commerce. d. Not disseminated to the consuming public. Finally, the alleged statements were not disseminated to the consuming public in a manner that constitutes advertising or promotion. The statements made during the presentation to the New Hampshire Fire Marshal were not disseminated to the public at all it was a closed door meeting at which no members of the general public were present. (Torbin Decl. 44 and Exhibit 21.) And although the MA Plumbers Board meetings are open to the public they are not actively promoted and only those with a professional matter before the Board or who have a vested interest in the issues being considered attend, in this case inspectors, CSST manufacturers, and, perhaps but not certainly, a few CSST installers. (Torbin Decl. 51.) The total initial attendance at the MA Plumbers Board meeting was approximately 20 people and diminished throughout the proceedings. (Torbin Decl ) Moreover, Mr. Torbin s presentation was the last agenda item. (Torbin Decl. 52) Even assuming some attendees were members of the consuming public, this would not be 13

15 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 15 of 23 sufficient dissemination to satisfy this prong of the four-part test. And of course, Omega Flex cannot base its Lanham Act claim on an assumption, but must prove sufficient dissemination to the consuming public. As there were no sign-in sheets that could establish who was present at the November 5 meeting (Torbin Decl. 53), Omega Flex cannot meet its burden. See Podiatrist Ass n, 332 F.3d at ( Thus, to pass the pleading threshold in a Lanham Act 43(a)(1)(B) case, a plaintiff at the very least must identify some medium or means through which the defendant disseminated information to a particular class of consumers. ); compare Radolf v. University of Connecticut, 364 F. Supp. 2d 204, (D. Conn. 2005) (submission of academic research proposal to government funding agency and statements made at press conference were not commercial advertising or promotion and were not made to a relevant purchasing public ). See also Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d. Cir. 2004) (art expert's opinions and assertions, solicited by plaintiff s competitor, were not commercial advertising or commercial promotion by expert for plaintiff s competitor); Boule v. Hutton, 328 F.3d 84, 91 (2d Cir. 2003) (competitor s statements regarding authenticity of paintings not commercial because they were solicited by magazine seeking comment on matter of public concern and therefore were protected under the First Amendment). 3. The Alleged Statements Were Not False Advertising. To commit false advertising under the Lanham Act, a defendant must make a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another s product. Cashmere & Camel Hair Manuf. Inst. v. Saks Fifth Avenue, 284 F.3d 302, (1st Cir. 2002). 10 Only descriptions of fact are covered, not opinions. See The misrepresentation also must be material and likely to influence the purchasing decision, must actually deceive or have the tendency to deceive a substantial segment of its audience, must be placed in interstate commerce, and must have injured or be likely to injure the plaintiff, either 14

16 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 16 of 23 Gilson on Trademarks 7.02 at 12 (2008) ( Congress added the words of fact to the original version of the Section in the 1988 amendments [and] explained that the need to avoid constitutional challenge required this limitation, thus making it clear that the Section did not extend to false and misleading statements of opinion. ) Each of the statements was either an opinion or a correct statement of fact: That CounterStrike s protective coating may not last the life of the house and could leave a consumer with no protection is pure opinion. See, e.g., Mac- Gray Servs., Inc. v. Automatic Laundry Servs., Inc., 2005 WL (Mass. Super. Ct. 2005)(1986)( A statement that something could happen is not a statement that it has happened. The use of the word could makes the statement speculative or provisional, not false. ). Use caution when installing CounterStrike is pure opinion. Moreover, it referred to Mr. Torbin s oral statements that even if the CounterStrike coating did have electrically conductive properties that might provide some (insufficient) level of protection, any damage to that coating would eliminate that benefit, and that if CounterStrike were installed without direct bonding, installers would face potential demands for retrofitting once the public learned of the new direct bonding requirements of NFPA 54 (2009). (Torbin Decl. 45.) The statement that Omega Flex s bond-free claim [is] not based on industry standard or accepted practice for lightning protection is factually correct. Omega Flex does not claim otherwise, it simply asserts that it has never claimed that CounterStrike was bond-free. In context, however, bond-free manifestly referred to Omega Flex s constant assertion that CounterStrike did not require direct bonding like other CSST products. (Torbin Decl and Exhibits ) [C]ontrary to [OmegaFlex's] instructions (or words to that effect), there are no known exceptions to NFPA 54 (2009) for Counterstrike. Putting aside the parenthetical that proves that Omega Flex does not know exactly what it is complaining about, it is true that NFPA 54 (2009) does not provide any CounterStrike exception to the new direct bonding requirement, and Omega Flex s many representations that no such bonding is required for CounterStrike are contrary to that requirement. The no additional bonding statement in the 2007 D&I Guide excerpt Mr. Torbin distributed at the November 5 MA Plumbers Board meeting accurately represents the D&I Guide that he downloaded from Omega Flex s website. Even if that Guide were a draft as Omega Flex contends, it was entirely consistent by direct diversion of sales or by lessening of goodwill associated with its products. Id. Because Omega Flex cannot even establish the first factor, the Court need not consider the others. 15

17 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 17 of 23 with what Omega Flex was saying in many other documents distributed to the public, in representations to government agencies, and on its publicly-accessible website and continues to say even today. (See Torbin Decl , Exhibits 7-9, ) Because each of the statements is either a pure opinion or a correct statement of fact, Omega Flex cannot prove its claims under Count I of the Complaint. B. Business Defamation (Count IV) 1. Count IV Fails to State a Claim for Business Defamation. Although business defamation and product disparagement are often confused, they are separate torts: Defamation of a corporation injures the reputation of the corporation itself, while product disparagement injures the reputation of its products. Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 365 n. 3 (D. Mass. 1985). The line sometimes blurs because injury to the reputation of a product may injure the manufacturer s reputation as well, but: where the statement or statements involve a company s services or product, defamation will not lie unless the statement or statements impute to the corporation fraud, deceit, dishonesty or reprehensible conduct. First Act, Inc. v. Brook Mays Music Co., 429 F. Supp. 2d 429, 433 n.3 (D. Mass. 2006) (emphasis added). For that reason, the court dismissed a defamation claim on a motion for directed verdict. Id. See also Picker Int l, Inc. v. Leavitt, 865 F. Supp. 951, 964 (D. Mass. 1994) Each of the statements at issue concerns the CounterStrike product, and not Omega Flex itself not one of them even mentions Omega Flex. The Complaint emphasizes that the issue is the alleged disparagement of the product, not of Omega Flex. See, e.g., Complaint 28 ( publicly disparaging Omega Flex s products to the CSST market ); 36 ( Torbin specifically singled-out and disparaged OmegaFlex s CounterStrike CSST product. ); 40 (Defendants made disparaging statements concerning OmegaFlex s CounterStrike CSST product. ); see also Complaint 46, 48, 49, 62, and 65. But not one of the statements imputed to Omega Flex 16

18 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 18 of 23 fraud, deceit, dishonesty or reprehensible conduct, and Omega Flex does not even allege otherwise. Accordingly, Omega Flex has not stated a claim for business defamation. 11 Even if Omega Flex could point to any statements about itself rather than about its product, Count IV would fail for several reasons. First, in a defamation action a threshold issue is whether the statement is reasonably susceptible of a defamatory meaning, and that determination is a question of law for the court. Foley v. Lowell Sun Pub. Co. 404 Mass. 9, 11, 533 N.E.2d 196, 197 (Mass. 1989); Nolan v. Krajcik, 384 F. Supp. 2d 447, 473 (D. Mass. 2005). Defamatory statements ridicule[] or treat[] the plaintiff with contempt. Id. The court must examine the statements in their totality and in the context in which they were published, and where they are not reasonably susceptible of a defamatory meaning, summary judgment is appropriate. Id. As a matter of law, not one of the complained-of statements is reasonably susceptible of a defamatory meaning, and Omega Flex has not alleged that they ridiculed it or treated it with contempt; it has only argued that it has lost sales of CounterStrike. Second, [s]tatements of fact may expose their authors or publishers to liability for defamation, but statements of pure opinion cannot. King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987). Whether a statement is one of fact or opinion is generally considered a question of law, and in deciding that issue, the court must examine the statement in its totality in the context in which it was... published. Reilly, 59 Mass. App. at 770, 797 N.E.2d at 1210 (quoting Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 309 (1982) and Lyons v. Globe Newspaper Co., 415 Mass. 258, 263 (1993)). As discussed above, the statements that the CounterStrike coating may not last the life of the house and that caution is appropriate are pure opinion protected by the First Amendment, and provide no basis for defamation. Aldoupolous v. 11 We do not, of course, concede that Omega Flex has stated a claim for product disparagement either (it has not), but that claim (Count V) is not at issue here. 17

19 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 19 of 23 Globe Newspaper Co., 398 Mass. 731, 733 (1986). Neither statement can be proven false, and therefore neither can be libelous. Hotchner v. Castillo- Puche, 551 F.2d 910, 913 (2d Cir. 1977). The other statements that Omega Flex points to cannot support a defamation claim for two reasons. Read in context, Reilly, 59 Mass. App. at 770, the statements reflected Mr. Torbin s opinions on the importance of direct bonding of CSST and his view that no CSST, including CounterStrike, could safely be installed without it. But even if the statements were not opinions, they are true and thus cannot be defamatory. They need not even be completely true to defeat a defamation claim if they are substantially true. Nolan v. Krajcik, 384 F. Supp. 2d 447, 473 (D. Mass. 2005); Reilly v. Associated Press, 59 Mass. App. Ct. 764, 770, 797 N.E. 2d 1204, 1211 (Mass. App. Ct. 2003). Omega Flex has the burden of proving the falsity of the statements, especially where, as here, they concern a matter of public interest. Gilbert v. Bernard, 1995 WL at *1, *3-*4 (Mass. Super. Ct. 1995). Omega Flex cannot meet this burden. Even if any of the statements (i) were about Omega Flex, (ii) were not opinions, (iii) were not true, and (iv) were reasonably susceptible of a defamatory meaning, Torbin had a conditional privilege to make them because he had a correct or reasonable belief that the information protected important interests of third persons, and the disclosure of the information to the NH State Fire Marshal and the MA Board of Plumbers was within accepted standards of conduct, especially where those agencies requested that he provide the information. See Restatement (Second) of Torts 595. See also id. 646A, illus. 4 ( A informs B, a city milk inspector, that milk delivered in the city by the X Company is impure and dangerous to the public health. A is conditionally privileged. ). Cf. Eastern Contractors, Inc. v. Flansburgh & Assocs., 1993 WL (Mass. Super. Ct. 1993) (defendant asked by school board building committee to advise it on the skill and integrity of contract bidders was conditionally privileged when it did so). 18

20 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 20 of 23 Finally, as to the specific claim that Mr. Torbin submitted a draft of the 2007 D&I Guide that, according to Omega Flex, inaccurately stated that [n]o additional bonding is required, Omega Flex should be estopped from arguing that a statement that it has widely used to promote CounterStrike, is somehow defamatory when Mr. Torbin makes it. 2. There Is No Threat of Ongoing or Irreparable Injury and the Balance of Harms Does Not Favor Omega Flex. Whatever the truth or untruth of Mr. Torbin s statements, and whatever Omega Flex s likelihood of success on any of its claims may be, there is no basis for concluding that Omega Flex will suffer any ongoing or irreparable injury if the Court denies preliminary injunctive relief. NFPA 54 (2009) was adopted by ANSI on September 5, (Torbin Decl. 25.) As of that day, every manufacturer s installation instructions required CSST to be directly bonded to the grounding electrode system because every manufacturer s installation instructions require compliance with the then-effective edition of NFPA 54 whenever there is no relevant local code. (Torbin Decl ) Omega Flex s December 2007 D&I Guide instructs that [i]n the absence of local codes, installation must be in accordance with the current edition of National Fuel Gas Code, ANSI Z223.1/NFPA 54. (Torbin Decl. Exhibit 9 at 3) (emphasis added). Mr. Torbin s comments have always emphasized that all CSST products, including CounterStrike should be directly bonded. Omega Flex s lawsuit is premised on the theory that Mr. Torbin has interfered with the value of CounterStrike in the marketplace due to its supposed lightning resistance that eliminates the need for direct bonding, but Omega Flex can no longer market CounterStrike as having that feature. The bonding issue aside, nothing Mr. Torbin has stated has prevented the sale and installation of CounterStrike throughout the United States. Mr. Torbin, on the other hand, will be irreparably injured if he cannot express his expert opinions on matters of concern to him and to public safety agencies. See, e.g., Elrod v. Burns, 19

21 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 21 of U.S. 347, 373 (1976) ( [T]he loss of First Amendment freedoms, for even minimum periods of time, unquestionably constitutes irreparable injury. ); Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978) ("Violations of first amendment rights constitute per se irreparable injury.") 3. The Public Interest Heavily Weighs Against Preliminary Injunctive Relief. Finally, the public interest will be harmed if Mr. Torbin may not express his expert opinions on matters affecting the CSST industry or public safety. The Court need look no further than the national news stories about CSST-caused fires to understand that it is critical that people such as Mr. Torbin be willing and able to express their opinions to the regulatory and standards development communities without fear of unjustified lawsuits such as this. injunction. CONCLUSION For the foregoing reasons, the Court should deny Omega Flex s motion for a preliminary REQUEST FOR HEARING Pursuant to Local Rule 7.1(d), Defendants respectfully request a hearing on Plaintiff s Motion for Preliminary Injunction. Defendants believe that such a hearing would materially assist the Court in understanding the factual background and the issues presented by the Motion. DATED: January 8, 2009 Respectfully submitted, ROBERT TORBIN and CUTTING EDGE SOLUTIONS, LLC, By their attorney, /s/ Mitchell J. Matorin Mitchell J. Matorin (BBO #649304) MATORIN LAW OFFICE, LLC 200 Highland Avenue Suite

22 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 22 of 23 Needham, MA (781)

23 Case 1:08-cv RWZ Document 12 Filed 01/08/2009 Page 23 of 23 Certificate of Service I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on January 8, /s/ Mitchell J. Matorin 22