NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LIGHTNING PROTECTION 

CORPORATION, 

Plaintiff-Appellant, 

and 

HEARY BROS. LIGHTNING 

PROTECTION CO. INC.; LIGHTNING 

PREVENTOR OF AMERICA, INC., 

Plaintiffs, 

 v. 

EAST COAST LIGHTNING EQUIPMENT, 

INC., 

Defendant-Appellee, 

and 

LIGHTNING PROTECTION INSTITUTE; 

et al., 

Defendants.

No. 19-15440 

D.C. No. 2:96-cv-02796-DLR 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Argued and Submitted May 7, 2020

Portland, Oregon

Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA,** District 

Judge.

National Lightning Protection Corporation (“NLPC”) appeals a district court 

order finding that NLPC violated a 2005 injunction and permitting limited discovery 

into additional purported violations. We dismiss the appeal for lack of jurisdiction. 

1. We do not have jurisdiction over this appeal under 28 U.S.C. § 1291, 

which gives us “jurisdiction of appeals from all final decisions of the district courts.” 

The district court did not impose a sanction for the violations of the injunction that 

it found, and discovery continues as to whether there are other violations. Because 

“[f]urther proceedings remain in the district court that could result in a second appeal 

if the instant order is affirmed,” Weyerhaeuser Co. v. Int’l Longshoremen’s & 

Warehousemen’s Union, Local 21, 733 F.2d 645, 646 (9th Cir. 1984) (order), the 

district court’s decision is not final. See also id. at 645 (“A contempt order is not a 

final order under 28 U.S.C. § 1291 prior to the imposition of sanctions.”).

2. We also lack jurisdiction under 28 U.S.C. § 1292(a)(1), which applies 

to interlocutory orders “modifying” an injunction. The district court did not modify 

the 2005 injunction but instead merely interpreted it. See Pub. Serv. Co. of Colo. v. 

** The Honorable Anthony J. Battaglia, United States District Judge for 

the Southern District of California, sitting by designation.
3 

Batt, 67 F.3d 234, 238 (9th Cir. 1995) (noting that the “court of appeals lacks 

jurisdiction over appeals of orders in which a district court merely enforces or 

interprets a previous injunction”). The 2005 injunction prohibited NLPC from 

advertising “explicitly or implicitly” that its ESE systems “protect open areas.” The 

district court found that the list of customers on NLPC’s website, which included 

outdoor stadiums, golf courses, and amusement parks, violated the injunction 

because the “implication from the list is that its system successfully protected the 

location where it was installed.” In reaching this conclusion, the district court noted 

that the 2005 injunction explicitly prohibited implicit advertising and that this Court 

on direct appeal1 had noted that it extends to truthful statements if used “to support 

claims that ESE systems . . . can protect open spaces.” Because the district court’s 

order, whether or not correct, was “pursuant to” the injunction, it did not constitute 

a modification. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987); see

1 NLPC claims that the 2005 injunction was modified on appeal to extend only 

to factually accurate statements that are directly used to support an untruthful 

statement. See Heary Bros. Lightning Prot. Co. v. Lightning Prot. Inst., 262 F. 

App’x 815 (9th Cir. 2008). However, although the memorandum disposition 

indicated at one point that “we . . . modify the injunction,” it never stated how the 

injunction was modified, later rejected “the plaintiffs’ request to modify the 

language of the injunction,” and concluded by affirming “the injunction in all 

respects.” Id. at 816-18. The memorandum disposition also stated that the 

injunction prohibited “truthful advertising” used “to support” the claim “that ESE 

systems can protect open spaces,” id. at 817, and did not, as NLPC claims, also state 

that such truthful advertising must explicitly, rather than implicitly, support that false 

claim.
4 

also Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (“Because § 1292(a)(1) was 

intended to carve out only a limited exception to the final-judgment rule, we have 

construed the statute narrowly.”). 

3. The district court also did not modify the injunction when it found that 

NLPC’s statement on its website that its ESE air terminals are certified by 

Underwriters Laboratories (“UL”) violated the injunction or when it allowed 

discovery into the conduct of a non-party, UL. The 2005 injunction expressly 

prohibited NLPC from advertising that its “air terminal product” is “accepted by

Underwriters Laboratories” and applied on its face to “agents, employees, dealers, 

distributors . . . persons, partnerships, and corporations, in present or future active 

concern or participation with [NLPC].”

4. Because we lack jurisdiction over NLPC’s appeal, we express no 

opinion about whether the district court erred in finding that NLPC violated the 

injunction. See Thompson, 815 F.2d at 1327.

APPEAL DISMISSED.
National Lightning Protection Corporation v. East Coast Lightning Equipment, 

Inc., No. 19-15440

WATFORD, Circuit Judge, dissenting in part:

I agree with my colleagues on all but one issue. In my view, the district 

court modified the 2005 injunction when it prohibited NLPC from posting on its 

website a truthful list of the customers who have purchased its lightning protection 

system, known as an “early streamer emissions” or “ESE” system. We have 

jurisdiction to review NLPC’s challenge to that aspect of the district court’s order 

under 28 U.S.C. § 1292(a)(1), and I would reverse.

As my colleagues note, the 2005 injunction prohibited NLPC from stating, 

explicitly or implicitly, that its lightning protection system “can function 

effectively to protect open spaces.” But when our court upheld the injunction in 

2008, we made clear that it does not prohibit truthful statements concerning “the 

plaintiffs’ experience with ESE systems,” as long as such statements aren’t used 

“to support claims that . . . ESE systems can protect open spaces.” Heary Bros. 

Lightning Protection Co. v. Lightning Protection Institute, 262 F. App’x 815, 817

(9th Cir. 2008). With that clarification of the injunction’s scope, we declined 

NLPC’s request to formally modify the language of the injunction. Id.

NLPC’s posting of a truthful list of its customers does nothing more than

tout its “experience with ESE systems.” The list of customers is not accompanied 

by any statement that could be read as implying that NLPC’s system has been 

FILED

MAY 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 3

effective in protecting open spaces. In fact, the customer list is not accompanied by 

any editorial statements whatsoever—not even a statement saying, “here’s a list of 

our satisfied customers.” It’s just a list of customers who have purchased NLPC’s 

product. The district court was thus mistaken in concluding that the mere posting 

of the list constituted a “claim” by NLPC that its system can protect open spaces, 

or an implied statement that “its system successfully protected the location where it 

was installed.” The only implication that can fairly be drawn from the mere 

posting of the customer list is that the customers believed—presumably after 

conducting their own due diligence—that NLPC’s system provided adequate 

protection for their locations such that, after taking into account price, they decided 

to purchase NLPC’s system over competing systems on the market. That implied 

statement is not prohibited by the 2005 injunction as we construed it in 2008.

If a district court construes an injunction to prohibit conduct that was 

previously permitted, the court has obviously modified the injunction within the 

meaning of 28 U.S.C. § 1292(a)(1). See Cunningham v. David Special 

Commitment Center, 158 F.3d 1035, 1037 (9th Cir. 1998). In my view that is 

precisely what occurred here. So I would hold that we have jurisdiction to review 

the district court’s order to the extent that it bars NLPC from merely posting on its 

website a truthful list of the customers who have purchased its product. And I 

would reverse that aspect of the district court’s order because it conflicts with our 
Page 3 of 3

court’s prior decision in this case by banning truthful advertising that poses no 

danger of misleading consumers. See U-Haul International Inc. v. Jartran, Inc., 

793 F.2d 1034, 1042 (9th Cir. 1986). In all other respects, I agree with my 

colleagues’ disposition of the appeal.