Argued December 6, 2013
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:07-cv-00765 -- William E. Callahan, Jr., Magistrate Judge.
For Thermal Design, Incorporated, Plaintiff - Appellant: Thomas Armstrong, Attorney, Rachel N. Schepp, Attorney, Von Briesen & Roper, S.C., Milwaukee, WI.
For American Society of Heating, Refrigerating And Air-Conditioning Engineers, Incorporated, Defendant - Appellee: Merritt E. McAlister, Attorney, M. Russell Wofford Jr., Attorney, King & Spalding, Atlanta, GA.
Before KANNE AND ROVNER, Circuit Judges, AND DURKIN, District Judge.[*]
Kanne, Circuit Judge
Thermal Design alleged that the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Incorporated (" ASHRAE" ) violated Wisconsin common law as well as the Wisconsin Deceptive Trade Practices Act. Thermal Design claims that ASHRAE intentionally published a false and misleading thermal performance standard, which induced consumers to purchase Thermal's competitors' products in lieu of its own. The district court granted ASHRAE's motion to dismiss Thermal's Wisconsin Deceptive Trade Practices Act claim with prejudice. It then granted summary judgment to ASHRAE on Thermal's remaining claims, including the common law claim for unfair competition. For the following reasons, we affirm.
ASHRAE is a standards development organization composed of hundreds of industry members, academicians, design professionals, and government officials. The standards provide guidelines for refrigeration processes and the design and maintenance of energy efficient buildings. Although some of ASHRAE's committee members are employed by businesses that sell products designed to meet the standards,
the organization itself does not manufacture or sell any products.
Thermal Design is a manufacturer of insulation systems, known as " liner systems," for nonresidential metal buildings. Thermal's liner systems compete primarily with " over-the-purlin systems," which comprise about 90% of the current market for metal building roof insulation systems.
Since 1999, ASHRAE has published Standard 90.1, titled " Energy Standard for Buildings Except Low-Rise Residential Buildings." Standard 90.1 describes how buildings ought to be constructed to increase energy efficiency. The issue in this case concerns the " building envelope," which consists of the building's roof, walls, floors, and fenestration. Appendix A to Standard 90.1 rates the energy efficiency of insulation assemblies through the use of U-factors, which measure heat transmission through a building ...