PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_______________

Nos. 20-2551 & 20-2661

_______________

CHARLENE DZIELAK; SHELLEY BAKER; FRANCIS 

ANGELONE; BRIAN MAXWELL; JEFFERY REID; KARI 

PARSONS; CHARLES BEYER; JONATHAN COHEN; 

JENNIFER SCHRAMM; ASPASIA CHRISTY,

on behalf of themselves and all others similarly situated,

v. 

WHIRLPOOL CORPORATION;

SEARS HOLDINGS CORPORATION; HOME DEPOT 

USA INC; FRY’S ELECTRONICS INC.; APPLIANCE 

RECYCLING CENTERS OF AMERICA INC; LOWE’S 

HOME CENTERS, LLC

Charlene Dzielak; Shelley Baker; Francis Angelone; Brian 

Maxwell; Jeffery Reid; Kari Parsons; Charles Beyer; 

Jonathan Cohen; Jennifer Schramm; Aspasia Christy,

Appellants in 20-2551

Whirlpool Corporation, 

Appellant in 20-2661
2

_______________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 2:12-cv-00089)

District Judge: Hon. Kevin C. McNulty

_______________

Argued: May 24, 2022

Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges.

(Filed: September 29, 2023)

_______________

Neal J. Deckant [ARGUED] 

BURSOR & FISHER

1990 N. California Boulevard, Suite 940

Walnut Creek, CA 94596

Scott A. Bursor

BURSOR & FISHER

701 Brickell Avenue, Suite 1420

Miami, FL 10019

Counsel for Appellants/Cross-Appellees

Antonio Vozzolo

VOZZOLO LLC

345 Route 17 S.

Upper Saddle River, NJ 07548

Counsel for Appellants
3

Louis Chaiten

James R. Saywell [ARGUED]

JONES DAY

901 Lakeside Avenue

North Point

Cleveland, OH 44114

Counsel for Appellee/Cross-Appellant Whirlpool 

Corporation

David R. Kott

MCCARTER & ENGLISH

100 Mulberry Street

Four Gateway Center, 14th Floor

Newark, NJ 07102

Allison R. McLaughlin

Eric L. Robertson

WHEELER TRIGG O’DONNELL LLP

370 17th Street, Suite 4500

Denver, CO 80202

Counsel for Appellee/Cross-Appellant Whirlpool 

Corporation and Appellees Sears Holdings 

Corporation, Fry’s Electronics, Inc., and Lowe’s Home 

Centers, LLC

Galen D. Bellamy

Michael T. Williams

WHEELER TRIGG O’DONNELL LLP

370 17th Street, Suite 4500

Denver, CO 80202

Counsel for Appellee/Cross-Appellant Whirlpool 

Corporation, Appellees Sears Holdings Corporation 

and Fry’s Electronics, Inc., and Cross-Appellant 

Lowe’s Home Centers, LLC
4

Sidney S. Haskins, II [ARGUED]

KING & SPALDING

1180 Peachtree Street N.E., Suite 1600

Atlanta, GA 30309

Lisa B. Geraghty

STARR GERN DAVISON & RUBIN

105 Eisenhower Parkway, Suite 401

Roseland, NJ 07068

Counsel for Appellee Home Depot USA, Inc.

__________

OPINION OF THE COURT

__________

PHIPPS, Circuit Judge.

From its inception in 1992, the Energy Star Program has set 

energy efficiency standards for various categories of products 

and permitted approved products to bear the Energy Star logo. 

Three models of top-loading clothes washers were approved to 

display that logo, and they did so from their entry into the 

market in April 2009 until their discontinuation in December 

2010. But under one method of measurement, those machines 

did not meet the Program’s energy- and water-efficiency 

standards. Although those clothes washers did satisfy the 

Program’s standards under another measurement technique, 

which the Program previously endorsed, Program guidance 

from July 2010 disapproved of that method. Still, those models 

were permitted to display the Energy Star logo until February 

2011.
5

In January 2012, consumers in several states who had 

purchased those models commenced this suit as a putative class 

action in the District Court against the manufacturer of the 

clothes washers and retailers that sold those machines. 

Plaintiffs brought several claims, including counts for breach 

of express warranty and for violations of state consumerprotection statutes. All of the claims related to the allegedly 

wrongful display of the Energy Star logo on the three models 

that did not meet Energy Star standards under the July 2010 

Program guidance. The District Court certified a class action 

against the manufacturer, but it declined to certify a class for 

the claims against the retailers. At summary judgment, the 

District Court rejected all remaining claims by the class and by 

the named plaintiffs, including the express-warranty and 

consumer-protection claims.

Plaintiffs appealed to dispute two components of the 

District Court’s summary-judgment ruling. They now argue, 

first, that the District Court erred in denying their claims for 

breach of express warranty. And second, they challenge the 

District Court’s judgment rejecting their statutory consumerprotection claims.

The manufacturer cross-appealed to contest class 

certification, but it conditioned that cross-appeal on plaintiffs’

successful appeal of their class claims.

On de novo review, there is no genuine dispute of material 

fact, and the manufacturer and the retailers are entitled to 

judgment as a matter of law on the appealed issues. That 

conclusion obviates the need to address the manufacturer’s 

cross-appeal, so we will affirm the judgment of the District 

Court.
6

I. BACKGROUND

A. The Origins of the Energy Star Program and 

Its Applicability to Clothes Washers

1. Energy Star Standards and Testing 

The United States Environmental Protection Agency 

developed the Energy Star Program in response to the 1990 

Amendments to the Clean Air Act. That legislation provided 

further direction for a previously authorized research and 

development program1 by requiring the EPA to “conduct a 

basic engineering research and technology program to develop, 

evaluate, and demonstrate nonregulatory strategies and 

technologies for air pollution prevention.” Pub. L. No. 101-

549, tit. IX, sec. 901(c), § 103(g), 104 Stat. 2399, 2703

(Nov. 15, 1990) (codified at 42 U.S.C. § 7403(g)). As part of 

its response to that mandate, the EPA introduced the Energy 

Star Program in 1992 “as a voluntary labeling program 

designed to promote – and allow consumers to identify –

1

In amending the Clean Air Act of 1963, Pub. L. No. 88-206, 

77 Stat. 392 (Dec. 17, 1963), through the Air Quality Act of 

1967, Congress directed the Secretary of the Department of 

Health, Education, and Welfare to “establish a national 

research and development program for the prevention and 

control of air pollution.” Pub. L. No. 90-148, sec. 2, § 103(a),

81 Stat. 485, 486 (Nov. 21, 1967). And with the creation of the 

EPA in 1970, the Administrator of the EPA assumed 

responsibility for implementing that research and development 

program. See Reorganization Plan No. 3 of 1970, § 2(a)(3), 

84 Stat. 2086, 2087, 2089 (July 9, 1970); Reorganization Plan 

No. 3 of 1970, 35 Fed. Reg. 15,623, 15,624 (Oct. 6, 1970); see 

also 42 U.S.C. § 1857b(a) (1970) (“The Administrator shall 

establish a national research and development program for the 

prevention and control of air pollution . . .” (emphasis added)

(current version codified at 42 U.S.C. § 7403(a)). 
7

energy-efficient computers and monitors.” Gov’t 

Accountability Off., Energy Star Program 1, 3 (2010).2

The Energy Star Program expanded over time to cover 

additional categories of products. In 1996, the EPA entered a 

Memorandum of Cooperation with the United States 

Department of Energy (‘DOE’) for overseeing the Energy Star 

Program with respect to eight product categories, including 

clothes washers.

3

 With the benefit of its experience in 

developing methods for measuring the energy efficiency of 

clothes washers for another program,

4 DOE in 1997 announced

an updated testing method, referred to as the ‘J1 Test 

Procedure,’ for measuring the two standards the Energy Star 

2 See also 74 Fed. Reg. 25,732, 25,733 (May 29, 2009) (“EPA 

introduced ENERGY STAR in 1992 to label energy efficient 

computers.”); S. Hrg. 110-1095, The Implications of the 

Supreme Court’s Decision Regarding EPA’s Authorities with 

Respect to Greenhouse Gases Under the Clean Air Act: 

Hearing Before the S. Comm. on Env’t & Pub. Works, 

110th Cong. 24 (Apr. 24, 2007) (statement of Stephen L. 

Johnson, Administrator, Env’t Prot. Agency).

3 See Dep’t of Energy & Env’t Prot. Agency, Memorandum of 

Cooperation on Energy Efficient, Environmentally Beneficial 

Buildings (1996) (included as exhibit to Global Climate 

Change: Joint Hearing Before the Subcomm. on Energy Rsch., 

Dev., Prod. and Regul. of the S. Comm. on Energy and Nat. 

Res. and Subcomm. on Nat’l Econ. Growth, Nat. Res., and 

Regul. Affs. of the H. Comm. on Gov’t Reform, 106th Cong. 

64–66 (1999)); see also S. Hrg. 110-1095, supra, at 24; U.S. 

Dep’t of Energy, Off. of Inspector Gen., Audit Report: The 

Department’s Management of the ENERGY STAR Program 1 

(Oct. 14, 2009).

4 See Energy Conservation Program for Consumer Products: 

Clothes Washer Energy Conservation Standards, 66 Fed. Reg. 

3314, 3316–17 (Jan. 12, 2001) (“Federal test procedures for 

clothes washers were first established in 1977.”).
8

Program used to assess the energy- and water-efficiency of 

clothes washers: the Modified Energy Factor and the Water 

Factor.

5

 The J1 Test Procedure went into effect in 2004.

6

With the Energy Star Program’s expansion, it received 

formal recognition and greater definition in statute. The

Energy Policy Act of 2005 preserved Energy Star’s character 

as a voluntary labeling program for energy-efficient products:

There is established within the Department of 

Energy and the Environmental Protection 

Agency a voluntary program to identify and 

promote energy-efficient products and buildings 

in order to reduce energy consumption, improve 

energy security, and reduce pollution through 

voluntary labeling of, or other forms of 

communication about, products and buildings 

that meet the highest energy conservation 

standards. 

5 See Energy Conservation Program for Consumer Products: 

Test Procedure for Clothes Washers and Reporting 

Requirements for Clothes Washers, Clothes Dryers, and 

Dishwashers, 62 Fed. Reg. 45,484, 45,508 (Aug. 27, 1997); see

also 10 C.F.R. pt. 430, subpt. B, app. J1, §§ 4.2.3, 4.4 (2004) 

(defining “modified energy factor” and “water consumption

factor”). 

6 See 10 C.F.R. pt. 430, subpt. B, app. J1 (2004) (“The 

provisions of this appendix J1 shall apply to products 

manufactured beginning January 1, 2004.”); Energy 

Conservation Program for Consumer Products: Test Procedure 

for Clothes Washers, 68 Fed. Reg. 62,198, 62,198 (Oct. 31, 

2003) (announcing a direct final rule for amendments to the J1 

Test Procedure to take effect on January 1, 2004, along with 

the new standards).
9

Pub. L. No. 109-58, sec. 131, § 324A(a), 119 Stat. 594, 620 

(Aug. 8, 2005) (codified at 42 U.S.C. § 6294a(a)). The Act

also identified the responsibilities that accompanied the 

Program’s administration. Those duties, which were divided 

as agreed between the EPA and DOE, see id. § 6294a(b), 

included working to enhance public awareness of the Energy 

Star label, see id. § 6294a(c)(2), preserving the integrity of the 

label, see id. § 6294a(c)(3), and “promot[ing] Energy Star

compliant technologies as the preferred technologies in the 

marketplace for . . . achieving energy efficiency [and] reducing 

pollution,” id. § 6294a(c)(1).

Several provisions of the Energy Policy Act also accounted 

for anticipated innovation in energy-efficient technologies. 

Congress required the agencies to “regularly update Energy 

Star product criteria for product categories,” id. § 6294a(c)(4), 

which required an explanation of the changes, see id.

§ 6294a(c)(6), the solicitation of comments from interested 

parties, see id. § 6294a(c)(5), as well as an agency response to 

those comments, see id. § 6294a(c)(6). And, unless specified 

otherwise by one of the agencies, 270 days’ notice was 

required before a “new or a significant revision to a product 

category, specification, or criterion” could take effect. Id. 

§ 6294a(c)(7).

The Energy Policy Act further directed DOE to issue new 

qualifying levels for clothes washers to take effect in 2009. See 

id. § 6294a(d). DOE did so, and between 2009 and 2011, the 

Energy Star Program required a Modified Energy Factor of at 

least 1.80 and a Water Factor of no more than 7.50. See Energy 

Conservation Program: Energy Conservation Standards for 

Residential Clothes Washers, 77 Fed. Reg. 32,308, 32,332–33

tbl. IV-5 (May 31, 2012) (describing historical Energy Star 

standards for top-loading clothes washers). By comparison,

regulations at the time for standard clothes washers 

manufactured on or after January 1, 2007, required a Modified 

Energy Factor of at least 1.26 – considerably less than the 

Energy Star standard. See 10 C.F.R. § 430.32(g)(3) (2007). 
10

And those regulations did not impose a Water Factor 

requirement on standard clothes washers. See id.

7

2. The Energy Star Logo and Its 

Registration as a Certification Mark

Product labeling is a key component of the Energy Star 

Program. In the 1990s, the EPA had developed logos for 

manufacturers to identify their qualifying products as Energy 

Star certified. See ENERGY, Reg. No. 2074946 (filed Apr. 12, 

1995, registered July 1, 1997). And in 2008, the EPA 

introduced the modern version of the Energy Star logo, which 

“consist[ed] of a cyan blue box with white writing and trim 

containing the word energy and a star below a curved line, with 

the words ‘ENERGY STAR’ in white in a small cyan box 

below the design.” ENERGY ENERGY STAR, Reg.

No. 3569551, Application at 1 (June 11, 2008) (hereinafter 

‘2008 Energy Star Application’). The logo had the following 

appearance: 

Id. 

The EPA applied to register that version of the Energy Star 

logo as a certification mark with the United States Patent and 

Trademark Office.8In its application, the EPA included a 

7 Congress codified the Modified Energy Factor requirement 

in statute for clothes washers manufactured on or after 

January 1, 2011, and it added a Water Factor requirement of no 

more than 9.50. See 42 U.S.C. § 6295(g)(9)(A) (2007).

8 See 15 U.S.C. § 1127 (defining “certification mark,” in 

relevant part, as “any word, name, symbol, or device, or any 
11

certification statement that explained that the logo would be 

“used by authorized persons” to certify “that the items are more 

energy efficient than most items sold in the same [category].” 

2008 Energy Star Application at 1. And the EPA included with 

its application “a copy of the standards that determine whether 

others may use the certification mark on their goods,” as well 

as a statement that it “exercise[d] legitimate control over the 

use of the mark.” 37 C.F.R. § 2.45(a) (2007). The EPA’s 

submitted standards incorporated by reference the Energy Star 

Program’s Modified Energy Factor and Water Factor

benchmarks, which, at the time, were measured according to 

the J1 Test Procedure. 2008 Energy Star Application at 1.

On February 3, 2009, the Patent and Trademark Office 

granted the EPA’s application and registered the Energy Star 

mark for a ten-year period. 2008 Energy Star Application at 1;

see generally 15 U.S.C. § 1058(a) (providing a ten-year 

duration for registered marks).9 As an owner of a certification 

mark, the EPA could allow others to use the mark to indicate 

characteristics of their products, such as their “origin, material, 

mode of manufacture, [or] quality.” 15 U.S.C. § 1127; see 

generally Terry E. Holtzman, Tips From the Trademark 

combination thereof – (1) used by a person other than its 

owner, or (2) which its owner has a bona fide intention to 

permit a person other than the owner to use in commerce and 

files an application to register on the principal register 

established by this chapter, to certify regional or other origin, 

material, mode of manufacture, quality, accuracy, or other 

characteristics of such person’s goods or services or that the 

work . . . .”).

9 Registration of a certification mark entitles the registrant to 

the protections that registered trademarks receive. See

15 U.S.C. § 1054; see also Int’l Info. Sys. Sec. Certification 

Consortium, Inc. v. Sec. Univ., LLC, 823 F.3d 153, 159–60 (2d 

Cir. 2016); Am. Bd. of Psychiatry & Neurology, Inc. v. 

Johnson-Powell, 129 F.3d 1, 3 (1st Cir. 1997).
12

Examining Operation: Certification Marks: An Overview, 

81 Trademark Rep. 180, 183 (1991) (“[A] license agreement is 

essential to the function of a certification mark.”); cf. 15 U.S.C. 

§ 1064(5)(D) (allowing a petition to cancel a certification mark 

if the registered owner “discriminately refuses to certify”

qualifying goods or services).

To control the use of the Energy Star logo on clothes 

washers, DOE, as part of its cooperation with the EPA, entered 

partnership agreements with manufacturers seeking to enroll 

their machines in the Program.

10

 Under the model partnership 

agreement effective March 7, 2008, manufacturers had to 

conduct in-house testing of their own clothes washers 

according to the J1 Test Procedure for those machines to 

qualify for the Program.

11

 If, after self-testing, a machine 

satisfied the Program’s Modified Energy Factor and Water 

Factor standards, DOE would authorize the manufacturer to 

display the Energy Star logo on that model and would share 

additional Program resources, such as marketing materials.

12

Still, as the owner of the certification mark, the EPA had 

“an affirmative obligation . . . to monitor the activities of those 

who use the mark.” Midwest Plastic Fabricators, Inc. v. 

Underwriters Labs. Inc., 906 F.2d 1568, 1572 (Fed. Cir. 

10 See ENERGY STAR Program Requirements and Criteria for 

Clothes Washers 4 (Mar. 7, 2008); see also U.S. Dep’t of 

Energy, Off. of Inspector Gen., Audit Report: The 

Department’s Management of the ENERGY STAR Program 1 

(Oct. 14, 2009) (explaining that under the 1996 Memorandum 

of Cooperation, DOE assumed responsibility for ensuring the 

proper use of the Energy Star logo on clothes washers).

11 See ENERGY STAR Program Requirements and Criteria for 

Clothes Washers 4.

12 Gov’t Accountability Off., Energy Star Program 4 (2010).
13

1990).13 And despite allowing manufacturers to test their own 

machines, DOE retained discretion to “conduct tests on 

products that are referred to as ENERGY STAR qualified.” 

ENERGY STAR Program Requirements and Criteria for 

Clothes Washers 1 (Mar. 7, 2008).

3. The Announced End of the SelfTesting Era and the Launch of a Pilot 

Program for Independent Verification 

On September 30, 2009, the EPA and DOE decided to exert

greater control over the use of the Energy Star logo. Through 

a Memorandum of Understanding, which superseded the 1996 

Memorandum of Cooperation, they announced that “[a]ll 

products will be required to be tested in an accredited 

laboratory and qualifying product information be submitted to 

the government before the product can be qualified as 

ENERGY STAR.” Dep’t of Energy & Env’t Prot. Agency, 

Memorandum of Understanding on Improving the Energy 

Efficiency of Products and Buildings 5 (Sept. 30, 2009).

14

13 See also U.S. Patent & Trademark Off., Trademark Manual 

of Examining Procedure § 1306.01(a), at 1300–37 (5th ed. 

Sept. 2007) (“The owner of a certification mark does not 

produce the goods or perform the services in connection with 

which the mark is used, and thus does not control their nature

and quality. . . . What the owner of the certification make does 

control is use of the mark by others on their goods or services. 

This control consists of taking steps to ensure that the mark is 

applied only to goods or services that contain the 

characteristics or meet the requirements that the certifier/owner 

has established or adopted for the certification.”); accord U.S. 

Patent & Trademark Off., Trademark Manual of Examining 

Procedure § 1306.01(a), at 1300–39 (8th ed. Oct. 2011).

14 See also Gov’t Accountability Off., ENERGY STAR: 

Providing Opportunities for Additional Review of EPA’s 

Decisions Could Strengthen the Program 7 (Sept. 2011) 
14

That announcement of independent-laboratory testing did 

not provide a precise end date for the era of manufacturer selftesting. But in August 2010, DOE launched a pilot program

“to verify the energy efficiency and water-use characteristics 

of selected ENERGY STAR products through laboratory 

testing.” Dep’t of Energy, ENERGY STAR Appliance 

Verification Testing – Pilot Program Summary Report 1 

(Feb 3, 2012). Under that pilot program, DOE would select 

Energy Star-designated products for testing at independent 

laboratories. See Dep’t of Energy, FAQ for: ENERGY STAR 

Verification Testing Pilot Program 1 (Dec. 2010). 

The pilot program had two stages of verification testing. At 

Stage I, DOE would spot check a single unit of an Energy Star 

product at an independent laboratory. If the product’s 

performance was within five percent of the relevant 

specification for the Energy Star Program, DOE would take no 

further action. See id. at 3. Products that failed at Stage I could 

proceed, at the manufacturer’s election, to Stage II, which 

involved independent testing of between four and eight units 

to confirm whether they met Energy Star standards. See id. at 

4. If a model also failed Stage II testing, DOE would refer the 

matter to the EPA for “appropriate action,” which could 

include formal disqualification of the model from the Energy 

Star Program. App. 1000 ¶¶ 70–71 (Pls.’ Statement of 

Additional Material Facts).

(“Before the MOU, the program generally relied on a selfcertification process for manufacturers to qualify products for 

the Energy Star label. Under the MOU, all products are now 

required to be tested in an accredited laboratory, and the results 

submitted to EPA before the products can be qualified for the 

Energy Star label.”).
15

B. Whirlpool’s Enrollment of Maytag-Branded

Clothes Washers in the Energy Star Program 

Whirlpool, a Delaware corporation with a principal place 

of business in Benton Harbor, Michigan, is one of the world’s 

largest manufacturers of home appliances. In 2006, it acquired 

Maytag Corporation, another appliance manufacturer. 

Afterwards, Whirlpool continued production of clothes 

washers and other products under the Maytag brand. In 

recognition of consumer willingness to pay premiums for 

Energy Star-labeled appliances, Whirlpool also sought to have 

some of its Maytag-branded clothes washers qualify for the 

Energy Star Program. But Whirlpool identified an ambiguity 

in the J1 Test Procedure as applied to some models of Maytagbranded top-loading clothes washers. 

That procedure required measuring the capacity of a toploading clothes washer by sealing its “clothes container” with 

a plastic sheet and filling it with “water to its uppermost edge.” 

10 C.F.R. pt. 430, subpt. B, app. J1, §§ 3.1.2, 3.1.4 (2004). 

Certain top-loading Maytag-branded clothes washers, 

however, had four different fill levels:
16

App. 938 ¶ 165 (Pls.’ Resp. to Defs.’ Statement of Material 

Facts). And without specific guidance in the regulations, it was 

unclear which of those four levels corresponded to the 

uppermost edge of the clothes container. See Energy 

Conservation Program for Consumer Products: Test Procedure 

for Residential Clothes Washers, 75 Fed. Reg. 57,556, 57,574 

(Sept. 21, 2010) (noting that the existing test procedures “could 

lead to multiple capacity measurements”). Yet the capacity of 

the clothes container was critical to meeting the qualifying 

levels for the Energy Star Program. A larger clothes-container 

capacity would more readily satisfy the Modified Energy 

Factor and the Water Factor thresholds needed for Energy Star 

compliance.

To enable more of its Maytag-branded clothes washers to 

qualify for the Energy Star Program, Whirlpool sought to use 

the top of the tub cover, known as ‘Fill Level 4,’ in self-testing 

those machines. So in March 2007, Whirlpool submitted a 

petition for waiver to DOE to allow its use of Fill Level 4 for 

measuring the capacity of its top-loading clothes washers. See 

generally 10 C.F.R. § 430.27 (2007). Two months later, a 

DOE representative, Bryan Berringer, responded in an email 

explaining that the petition was unnecessary because 

Whirlpool’s proposed “measurement of the clothes container 

capacity to the upper edge of the tub cover” was already 

allowed under the J1 Test Procedure. Email from Bryan 

Berringer, U.S. Dep’t of Energy to J.B. Hoyt, Whirlpool 

(May 14, 2007) (App. 851).

After receiving that email, Whirlpool used Fill Level 4 to 

test two models of its top-loading Maytag Centennial clothes 

washers: the C6-0 and the C6-1. At Fill Level 4, both models

met the Modified Energy Factor and Water Factor thresholds 

for the Energy Star Program.

15

 Based on those test results, 

15 Whirlpool’s self-testing reported the C6-0 as having a 

Modified Energy Factor of 1.852 and a Water Factor of 7.108, 
17

Whirlpool considered three of its Maytag Centennial models –

the two tested along with the C7-0 model, which had the same 

energy profile as the C6-1 – to qualify for the Energy Star 

Program. Then, in April 2009, Whirlpool began shipping those 

three models to retailers with an Energy Star logo attached to 

each machine’s control panel.

But in May 2010, DOE announced its intention to remove 

the ambiguity in the J1 Test Procedure’s reference to the 

‘uppermost edge of the clothes container.’ For the uppermost 

edge, DOE proposed using “the highest horizontal plane that a 

clothes load could occupy,” which corresponded to Fill 

Level 3, the innermost diameter of the tub cover. App. 938 

¶ 166 (Pls.’ Resp. to Defs.’ Statement of Material Facts). 

Despite asserting that a comment period was unnecessary – on

the theory that the guidance qualified as an interpretation of its 

existing regulations, see 5 U.S.C. § 553(b)(A) – DOE sought 

public comments on the proposed rule. See Dep’t of Energy, 

Guidance for Test Procedures for Clothes Washers 1 (July 6, 

2010). Whirlpool responded and advocated for a reading of 

the J1 Test Procedure that used Fill Level 4, which would 

produce a larger volume for the clothes container than Fill 

Level 3 and thus facilitate qualification for the Energy Star 

Program.

On July 6, 2010, DOE announced its final interpretation of 

the uppermost edge of the clothes container. It construed that 

term to describe Fill Level 3, or “the highest point of the innermost diameter of the tub cover.” Id. DOE did not specify a 

time for compliance with its interpretation of the J1 Test 

Procedure, but under the Energy Policy Act, DOE had to 

provide 270 days’ lead time before a “significant revision to a 

product category, specification, or criterion” could take effect. 

42 U.S.C. § 6294a(c)(7).

and the C6-1 as having a Modified Energy Factor of 1.848 and 

a Water Factor of 7.065. 
18

In response to DOE’s new interpretation, Whirlpool began 

retesting all of its then-existing top-loading clothes washers. 

That undertaking required over 2,000 hours of laboratory time.

A few months later, in September 2010, in administering its 

pilot program for independently verifying Energy Star 

compliance, DOE selected Whirlpool’s Maytag Centennial 

C6-1 model for testing. That model was similar in energy- and 

water-efficiency to the C6-0 model according to Whirlpool’s 

self-testing, and it had the same energy profile as the C7-0

model. 

Because the pilot program commenced after the July 6 

guidance, the independent laboratory tested the machine when 

operated below Fill Level 4. But, in self-testing the C6-1 

model prior to the DOE’s interpretation, Whirlpool had used 

Fill Level 4. 

On September 20, 2010, DOE notified Whirlpool of the 

Stage I results. The independent laboratory determined that 

the C6-1 unit did not fall within five percent of the Energy Star 

Program’s efficiency requirements. Accordingly, the C6-1 

model failed Stage I testing for Energy Star compliance. 

At Whirlpool’s election, the testing proceeded to Stage II

of the pilot program. The independent laboratory examined 

four additional C6-1 units and determined that none of them 

satisfied either criterion for Energy Star compliance. But in 

notifying Whirlpool of those results on January 19, 2011, DOE

stated that the C6-1 model “will remain designated as 

ENERGY STAR qualified” until February 9, 2011. App. 956 

¶ 229 (Pls.’ Resp. to Defs.’ Statement of Material Facts). Even 

that date was less than 270 days from DOE’s July 6 guidance. 

Whirlpool did not object to having less than 270 days to 

comply with the DOE’s new interpretation of the J1 Test 

Procedure. Rather, in December 2010, Whirlpool discontinued 

manufacturing its Maytag Centennial C6-0, C6-1, and C7-0 
19

clothes washers. On May 7, 2012, the EPA disqualified those 

models from the Energy Star Program. 

Altogether, Whirlpool had shipped nearly 175,000 units of 

the three models to retailers in seven states: California, Florida, 

Indiana, New Jersey, Ohio, Texas, and Virginia. Charlene 

Dzielak and other named plaintiffs, who resided in those states, 

each purchased one of the units between November 2009 and 

December 2010. 

II. PROCEDURAL HISTORY &

GROUNDS FOR JURISDICTION

On January 5, 2012, Dzielak and one of the other named 

plaintiffs initiated this class action against Whirlpool and two 

of the retailers who had sold the company’s Maytag Centennial 

clothes washers. Those retailers were Lowe’s Companies, Inc.

and Sears Holdings Corporation. As amended in July 2014, 

the complaint added named plaintiffs and sued three other 

retailers: Fry’s Electronics, Inc., The Home Depot, Inc., and 

Appliance Recycling Centers of America, Inc. 

All but one of the fourteen counts in the amended complaint 

asserted claims under state law. Three of the state-law counts 

were against all of the defendants for common-law causes of 

action: breach of express warranty, breach of the implied 

warranty of merchantability, and unjust enrichment. The other 

state-law counts were against Whirlpool and the in-state 

retailers for violations of the consumer-protection statutes of 

the states in which the named plaintiffs resided. 

The District Court had original jurisdiction over those statelaw claims under the Class Action Fairness Act. The class 

included at least 100 persons, see 28 U.S.C. § 1332(d)(5)(B), 

and it satisfied the minimal diversity requirement as the state 

citizenship of at least one member of the plaintiff class differed 
20

from the state citizenship of at least one defendant.16 See id.

§ 1332(d)(2)(A). Also, the class sought relief that was not to a 

legal certainty worth $5 million or less. See id. § 1332(d)(2); 

Frederico v. Home Depot, 507 F.3d 188, 193–99 (3d Cir. 

2007).

Through a series of three motions to dismiss – in response 

to the original complaint and two amendments – Whirlpool and 

the retailer defendants challenged the plausibility of every 

count, including the lone claim under federal law pursuant to 

the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1). 

See Fed. R. Civ. P. 12(b)(6). After the District Court’s rulings

on those motions, the Magnuson-Moss claims and some statelaw claims were dismissed without prejudice, and the unjust 

enrichment claims against Whirlpool were dismissed with 

prejudice.17 Several state-law claims remained, including 

those for breach of express warranty and those under the 

California, Florida, Indiana, New Jersey, Ohio, and Texas

consumer-protection statutes.

18

16 The putative class members were citizens of California, 

Florida, Indiana, Michigan, New Jersey, Ohio, Texas, and 

Virginia, and the defendants were citizens of California, 

Delaware, Georgia, Illinois, Michigan, Minnesota, and North 

Carolina.

17 One of the named plaintiffs, Jeffery McLenna, who sought 

to represent a subclass of Michigan purchasers, voluntarily 

dismissed all his claims under Federal Rule of Civil Procedure 

41(a)(1)(A)(i).

18 The other claims that survived the motion-to-dismiss stage

were the claims for breach of the implied warranty of 

merchantability by the plaintiffs from Indiana, New Jersey, 

Texas, and Virginia and the unjust enrichment claims against 

the retailers on behalf of the plaintiffs from California, Indiana, 

New Jersey, Ohio, Texas, and Virginia.
21

The case proceeded to discovery on the surviving claims, 

and plaintiffs moved to certify a damages class. See Fed. R. 

Civ. P. 23(b)(3). After analyzing the requirements for such a 

class under Rule 23(a) and (b)(3), the District Court certified a 

class, which included subclasses by state, against only 

Whirlpool.19 When combined with the District Court’s prior 

rulings, each of the subclasses could pursue claims for breach 

of an express warranty against Whirlpool under a pricepremium damages theory. And the subclasses in California, 

Florida, Indiana, New Jersey, Ohio, and Texas could seek 

similar damages under those states’ consumer-protection 

statutes against Whirlpool.

Whirlpool and three of the five retailer defendants –

Lowe’s, Fry’s Electronics, and Home Depot – moved for 

summary judgment on the remaining class and individual 

claims. Whirlpool also moved to decertify the class.

The District Court granted the summary-judgment motions 

and denied Whirlpool’s decertification motion as moot. See

Dzielak v. Whirlpool Corp., 2019 WL 6607220, at *27 (D.N.J. 

Dec. 5, 2019). As a first step in evaluating the non-statutory 

claims, the District Court conducted a choice-of-law analysis 

and applied the substantive law of New Jersey, the forum state. 

See id. at *10–11. With respect to the claims for breach of an 

express warranty, the District Court explained that the Energy 

Star logo may have warranted that Whirlpool’s clothes washers 

were “environmentally friendlier” than standard models and 

“met federal standards of efficiency,” id. at *13, but it 

concluded that plaintiffs did not establish that the three models 

failed to conform to any such affirmation, promise, or 

description at the time they were sold, see id. at *14–15. In 

rejecting the claim for breach of the implied warranty of 

merchantability, the District Court held that plaintiffs did not 

19 Whirlpool sought immediate appellate review of the classcertification order under Rule 23(f). This Court denied that 

petition. 
22

demonstrate that the models were unfit for their intended 

purpose. See id. at *16–17. The District Court also concluded 

that a reasonable jury could not find that the retailer defendants 

were unjustly enriched from selling the washers. See id. at *17. 

And without evidence of a false or misleading statement 

attributable to Whirlpool or the retailers, the District Court 

rejected plaintiffs’ claims under the state consumer-protection 

statutes. See id. at *18–27.

The District Court’s order granting summary judgment 

further required plaintiffs to show cause why the ruling should 

not apply to one of the two defendants that did not move for 

summary judgment – Appliance Recycling Centers of 

America. Plaintiffs did not object, so the District Court entered 

an order extending its summary-judgment ruling to all 

defendants while recognizing that plaintiffs “preserv[ed] all 

substantive objections” thereto. D. Ct. Dkt., ECF No. 363, at 

1 (Dec. 11, 2019). With that, the District Court made clear that 

“[j]udgment is final as to all parties and claims.” Id. at 2. 

Plaintiffs then sought reconsideration of the ruling, and the 

District Court denied that motion.

After those rulings, plaintiffs timely appealed, and 

Whirlpool timely cross-appealed.

Whirlpool then moved to dismiss the appeals for lack of 

appellate jurisdiction. It argued that the only applicable basis 

for appellate jurisdiction was the final-order doctrine, see

28 U.S.C. § 1291, under which “an order which terminates 

fewer than all claims, or claims against fewer than all parties, 

does not constitute a ‘final’ order for purposes of appeal[.]” 

Carter v. City of Philadelphia, 181 F.3d 339, 343 (3d Cir. 

1999). And despite a contrary statement in the District Court’s 

opinion, Sears Holdings Corporation did not move for 

summary judgment because it had filed a voluntary petition for 

bankruptcy on October 15, 2018, and was therefore subject to 

the Bankruptcy Code’s automatic stay. See 11 U.S.C. 

§ 362(a)(1). Thus, the remaining claims against Sears – which 
23

were claims by two named plaintiffs, Charles Beyer and 

Shelley Baker, for breaches of express and implied warranties, 

unjust enrichment, and violations of California and Indiana 

consumer-protection statutes – were left unresolved by the 

District Court.

Without more, that incompleteness due to the operation of 

the automatic stay would prevent the District Court’s order 

from being final.20 See Mar. Elec. Co. v. United Jersey Bank, 

959 F.2d 1194, 1206 (3d Cir. 1991) (explaining that absent 

relief from a bankruptcy stay, “judicial actions and proceedings 

against the debtor are void ab initio” regardless of “whether the 

court finds for or against the debtor” (emphasis removed)). 

Still, an order resolving fewer than all claims “may become 

final for the purposes of appeal where a plaintiff voluntarily 

and finally abandons the other claims in the litigation.” Bethel 

20 The District Court’s order was otherwise sufficient to 

establish the finality of the proceedings for purposes of 

28 U.S.C. § 1291. Although its prior dismissal of plaintiffs’ 

Magnuson-Moss claims invited plaintiffs to amend their 

complaint for a third time, plaintiffs did not avail themselves 

of that opportunity. Instead, plaintiffs elected to litigate their 

remaining state-law claims against the defendants to the end of 

the summary-judgment stage. So by finally resolving each of 

those claims (save for the ones against Sears) the District 

Court’s order otherwise “accomplish[ed] all that the parties 

asked the court to accomplish[.]” Aluminum Co. of Am. v. 

Beazer E., Inc., 124 F.3d 551, 560 (3d Cir. 1997). Similar 

reasoning applies to the named plaintiff from Michigan, 

McLenna, who removed himself as a party to the suit through 

a Rule 41 dismissal without prejudice of all of his claims 

against all defendants before the District Court’s order 

disposing of all remaining claims against all remaining parties. 

The without-prejudice nature of that dismissal does not 

undermine the finality of the District Court’s summaryjudgment orders for purposes of this Court’s appellate 

jurisdiction under 28 U.S.C. § 1291.
24

v. McAllister Bros., 81 F.3d 376, 382 (3d Cir. 1996); see also

Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 246 (3d 

Cir. 2013). That rule applies even when a plaintiff abandons 

outstanding claims through representations made on appeal, 

such as through appellate briefing or statements made at oral 

argument, so long as the abandonment is final and unequivocal. 

See Erie Cnty. Retirees Ass’n v. Cnty. of Erie, 220 F.3d 193, 

201–02 (3d Cir. 2000); Bethel, 81 F.3d at 382. And here, in 

response to Whirlpool’s jurisdictional challenge, Beyer and 

Baker notified this Court that they “formally abandon their 

individual claims against Sears.” Pls.’ Resp. to Mot. to 

Dismiss at 12 (emphasis removed). That representation 

suffices to convert the District Court’s ruling into a final 

decision appealable under § 1291. See Tiernan v. Devoe, 

923 F.2d 1024, 1031 (3d Cir. 1991). Accordingly, Whirlpool’s 

motion to dismiss for lack of appellate jurisdiction will be 

denied.

III. DISCUSSION

In their opening brief, plaintiffs raise two challenges to the 

entry of summary judgment. First, they contend that as a 

matter of law the District Court erred in rejecting their breachof-express-warranty claims against Whirlpool and the retailers. 

They argue that the Energy Star logo warranted that 

Whirlpool’s clothes washers met the Energy Star Program’s 

Modified Energy Factor and Water Factor standards when 

tested under the J1 Test Procedure using Fill Level 3. Second, 

plaintiffs assert that genuine disputes of material fact prevent 

summary judgment on their claims against Whirlpool and the 

retailers for breaches of express warranty and for violations of 

the state consumer-protection statutes.

As elaborated below, those arguments do not succeed. No 

material facts are genuinely disputed, and the District Court’s 

entry of summary judgment on the breach-of-express-warranty 

and state consumer-protection claims was correct as a matter 

of law. See Fed. R. Civ. P. 56(a); SodexoMAGIC, LLC v. 

Drexel Univ., 24 F.4th 183, 203–04 (3d Cir. 2022) (explaining 
25

that a factual dispute is ‘material’ when its resolution has “the 

potential to affect the outcome of the suit,” and ‘genuine’ when 

the evidence presented could allow “a reasonable jury [to] 

return a verdict for the nonmoving party” (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))).21

A. The Claims for Breach of Express Warranty

No party disputes the District Court’s application of New 

Jersey law to the claims for breach of express warranty. In 

New Jersey, a claim for breach of express warranty consists of 

four elements. The first three relate to the creation of the 

warranty, and the last one defines breach:

1. A seller must make an affirmation of fact, 

promise, or description related to goods or 

21 The parties present two additional arguments, but neither 

needs to be addressed on the merits. First, in its opening brief 

as cross-appellant, Whirlpool argues that the class should not 

have been certified because it does not satisfy the 

predominance requirement for a damages class, see Fed. R. 

Civ. P. 23(b)(3), and separately because plaintiffs’ damages 

model does not fit with their theory of liability, see Comcast

Corp. v. Behrend, 569 U.S. 27, 34–38 (2013). But Whirlpool 

conditions its challenge to class certification on plaintiffs 

prevailing in their own appeal, and with the affirmation of the 

District Court’s summary-judgment order, the condition for 

Whirlpool’s cross-appeal is not satisfied. Second, plaintiffs, in 

their reply brief, attempt to extend the arguments in their 

opening brief to resurrect their claims for unjust enrichment 

and breach of the implied warranty of merchantability. But by 

not raising those challenges until their reply brief, plaintiffs

forfeited them. See In re Asbestos Prods. Liab. Litig. (No. VI), 

873 F.3d 232, 237 (3d Cir. 2017). Regardless, those claims 

could not succeed because they rely on the same unsuccessful 

rationales presented in plaintiffs’ opening brief.
26

the seller must provide a sample or model of 

goods;

2. The affirmation, promise, description, 

sample, or model must serve as a basis of the 

bargain between the seller and the buyer;

3. The buyer must accept the goods; and 

4. The goods must not conform to the 

affirmation, promise, description, sample, or 

model.

See N.J. Stat. Ann. §§ 12A:2-313(1), 12A:2-714(2); Furst v. 

Einstein Moomjy, Inc., 860 A.2d 435, 441 (N.J. 2004) 

(explaining that damages for breach of an express warranty is 

“the remedy for a buyer who has accepted defective goods” 

(emphasis added)).

The parties dispute the first and fourth elements. Plaintiffs

argue that the Energy Star logo constitutes an affirmation, 

promise, or description that a clothes washer satisfies Energy 

Star standards when measured using Fill Level 3 and that 

Whirlpool’s three models of Maytag clothes washers did not 

do so. Whirlpool and the retailers respond that the logo is not 

sufficiently concrete to make any affirmation, promise, or 

description. And even if it did, they assert that the most the 

Energy Star logo promised was generally better performance 

relative to non-Energy Star washers.

New Jersey uses an objective test to determine whether a 

statement by a seller constitutes an affirmation, promise, or 

description that could form the basis of an express warranty. 

As articulated by the New Jersey Supreme Court, a seller’s 

statement does so “if it could fairly be understood, regardless 

of [the seller’s] intent, to constitute an affirmation or 

representation that the [goods] possessed a certain quality and 

capacity relating to future performance.” Gladden v. Cadillac 
27

Motor Car Div., Gen. Motors Corp., 416 A.2d 394, 397 (N.J. 

1980); N.J. Stat. Ann. § 12A:2-313(2) (“It is not necessary to 

the creation of an express warranty that the seller . . . have a 

specific intention to make a warranty . . . .”); cf. Nester v. 

O’Donnell, 693 A.2d 1214, 1220 (N.J. App. Div. 1997) 

(looking to the “objective manifestations of the parties’ intent” 

to determine the meaning of a contractual agreement). Thus, 

under New Jersey law, for a statement to constitute an 

affirmation, promise, or description that could form the basis 

of an express warranty, that statement must be reasonably 

understood as communicating that “the good sold will conform 

to some standard which may be established by a model, a level 

of quality, an assurance, a description[,] or a list of 

specifications.” Liberty Lincoln-Mercury, Inc. v. Ford Motor 

Co., 171 F.3d 818, 824 (3d Cir. 1999).

Even with that guidance, the questions of whether and to 

what extent the Energy Star logo, as a certification mark, 

creates an express warranty remain novel. But from the 

parties’ briefing and the District Court proceedings, three 

theories emerge. Those are described and analyzed below.

1. The Authorized-Use Theory: The Energy 

Star Logo as Warranting the Department 

of Energy’s Authorization.

The first, and narrowest, view is an authorized-use theory, 

which the District Court described as a “branding” theory of 

liability. Dzielak, 2019 WL 6607220, at *15. Under that 

theory, the use of a certification mark indicates only that the 

mark’s owner authorized the use of the mark in connection 

with the user’s goods. Applied here, this theory would mean 

that Whirlpool’s use of the Energy Star logo affirmed, 

promised, or described nothing more than the EPA’s and 

DOE’s authorization to use the logo in marketing and labeling 

the three models of Maytag Centennial clothes washers.

But that warranty was not breached. At a minimum, the 

display of a certification mark affirms, promises, or describes 
28

that the owner of the mark has authorized the mark’s use in 

connection with the labeled or marketed product. And here, 

the clothes washers conformed to that affirmation, promise, or 

description. DOE informed Whirlpool that the tested model, 

the C6-1, would “remain designated as ENERGY STAR 

qualified” until February 2011, App. 956 ¶ 229 (Pls.’ Resp. to 

Defs.’ Statement of Material Facts), which was months after 

any named plaintiff purchased any of the models. Because the 

other two models had similar or identical energy profiles to the 

C6-1, no reasonable jury could find that DOE did not permit 

the use of the Energy Star logo on those three models at all 

relevant times. See Cipollone v. Liggett Grp., Inc., 505 U.S. 

504, 525 (1992) (“A manufacturer’s liability for breach of an 

express warranty derives from, and is measured by, the terms 

of that warranty.”).

2. The Certification-Statement Theory: 

The Energy Star Logo as Warranting 

Greater Efficiency Than Standard 

Models.

The second approach, a certification-statement theory, 

which in this context, the District Court termed the “energy 

efficiency” theory, is more expansive. Dzielak, 2019 WL 

6607220, at *15. It is grounded in the certification-statement 

requirement for registration applications for certification 

marks with the Patent and Trademark Office. By regulation, 

an applicant must include a certification statement that 

specifies “the conditions under which the certification mark is 

used.” 37 C.F.R. § 2.45(a) (2007). And in its 2008 application 

to register the Energy Star logo, the EPA’s certification 

statement specified that the display of the logo indicates its 

authorized use and that the corresponding product is “more 

energy efficient than most items sold in the same category.” 

2008 Energy Star Application at 1. Similarly, in depositions, 

most of the named plaintiffs professed to understand the 
29

Energy Star logo along these lines.22 Thus, under this theory, 

the Energy Star logo warrants not only authorized use but also 

greater energy efficiency than a standard model. See Dzielak, 

2019 WL 6607220, at *15.

Such a conclusion, however, is an uneasy fit with the 

structure of federal law on certification marks. Construing a 

certification mark as warranting something more than 

authorized use imposes joint responsibility for the accuracy of 

the mark’s use on the mark’s owner and on its authorized users. 

Yet the Lanham Act places that responsibility on only the 

mark’s registered owner. See 15 U.S.C. § 1064(5)(A) 

(subjecting a certification mark to cancellation if the registrant 

“does not control, or is not able legitimately to exercise control 

over, the use of such mark”); see also Midwest Plastic, 

906 F.2d at 1572; 3 J. Thomas McCarthy, McCarthy on

Trademarks and Unfair Competition § 19:94 (5th ed. 2023) 

(“[T]he certification mark owner should, through advertising, 

convince buyers that the certification mark provides useful and 

reliable information as to quality.” (emphasis added)). Thus, 

it might not be reasonable to interpret a certification mark as a 

warranty by the seller that its goods in fact conform to the 

mark’s standards. Such a mark may, instead, communicate 

nothing more than “that the goods have been certified as 

meeting the standards set forth by the certifier.” 

22 See, e.g., App. 982 ¶ 19 (Pls.’ Resp. to Defs.’ Statement of 

Material Facts) (Kari Parsons testifying that “I knew that if I 

saw the Energy Star label, that the machine, the washing 

machine, was going to be efficient, was going to save money 

and utilities, water and electricity”); id. at 983 ¶ 20 (Shelley 

Baker testifying that the Energy Star logo meant that “if you 

pay more for this machine, it will run at a more efficient rate 

than one that is not Energy Star”); id. at 986 ¶ 26 (Jonathan 

Cohen testifying that he thought his Energy Star-labeled 

washing machine “was regulated or tested by what I assume to 

be a government agency, and it was approved for energy 

savings and water savings”).
30

Interprofession du Gruyere v. U.S. Dairy Exp. Council, 

61 F.4th 407, 415–16 (4th Cir. 2023) (internal quotation marks 

omitted) (emphasis added) (describing certification marks at a 

general level but not opining on any theory of express-warranty 

liability associated with the use of a certification mark); see 

also Opticians Ass’n of Am. v. Indep. Opticians of Am., 

920 F.2d 187, 190 n.3 (3d Cir. 1990) (explaining that 

certification marks can be used to certify that “products meet 

the mark registrant’s standards”). To hold otherwise, at least 

in the absence of fraud, would expose authorized users of a 

certification mark to liability for the lax oversight or wrongful 

approval of their products by the mark’s owner.23 That could 

discourage use of the mark and pose an obstacle to the 

“accomplishment and execution of the full purposes and 

objectives” of the Lanham Act’s certification-mark provisions. 

Wyeth v. Levine, 555 U.S. 555, 563–64 (2009) (quoting Hines 

v. Davidowitz, 312 U.S. 52, 67 (1941)); see generally

15 U.S.C. §§ 1054, 1127. Instead, although this Circuit has not 

had occasion to consider the issue, it may be that a party 

aggrieved by an improper certification of a product could seek 

redress from the mark’s owner – as opposed to the user of the 

mark. See, e.g., U.S. Structural Plywood Integrity Coal. v. PFS 

Corp., 2022 WL 953150, at *1, 40 (S.D. Fla. Mar. 30, 2022) 

(allowing claims for false advertising under the Lanham Act 

and for state-law negligence against the owner of a certification 

mark for improper certification to proceed to trial).

23 If a user of the mark deceived the mark’s owner as to the 

qualities of a product, imposing liability on the user may be 

justified. Cf. 3 J. Thomas McCarthy, McCarthy on 

Trademarks and Unfair Competition § 19:90 (5th ed. 2023)

(explaining that the unauthorized use of a certification mark 

may amount to counterfeiting). When an owner of a 

certification mark relies on the user for information about a 

product, such as through self-testing, the user’s liability for the 

erroneous use of the mark becomes a more difficult question.
31

It is unnecessary here to determine the legal viability of the 

certification-statement theory. Even assuming for the sake of 

argument that the display of the Energy Star logo on a clothes 

washer did warrant that the machine was “more energy 

efficient than most items sold in the same [category],” 2008 

Energy Star Application at 1, the three models conformed to 

that affirmation, promise, or description. Congress and DOE

developed baseline efficiency standards that all residential 

clothes washers on the market were required to satisfy. See

42 U.S.C. § 6295(g)(9)(A) (2007); 10 C.F.R. § 430.32(g)(3)

(2007). And compared to those minimum standards, the three 

Maytag Centennial models, even when tested at Fill Level 3, 

consumed 46.1% less water and 34.3% less energy. That 

corresponds to between 92% and 93% of the water and energy 

savings of machines qualifying for the Energy Star Program at 

Fill Level 3. Thus, even if the Energy Star logo did warrant 

comparative energy efficiency, a reasonable jury could not 

conclude that the three models failed to conform to that 

warranty.

3. The Absolute-Compliance Theory: 

The Energy Star Logo as Warranting 

Satisfaction of the Program’s 

Modified Energy Factor and Water 

Factor Standards When Measured at 

Fill Level 3.

The third theory of express warranty, which the District 

Court rejected on plaintiffs’ motion for reconsideration, takes 

the broadest view. This approach posits that the display of the 

Energy Star logo on a clothes washer affirms, promises, or 

describes that machine as meeting the Program’s Modified 

Energy Factor and Water Factor requirements using the J1 Test 

Procedure administered at Fill Level 3 per the DOE guidance 

on July 6, 2010. Although the record lacks direct evidence that 

consumers understood the logo in those precise terms, the 

EPA’s registration application for the Energy Star logo 

included, as required by regulation, “a copy of the standards 

that determine whether others may use the certification mark 
32

on their goods.” 37 C.F.R. § 2.45(a) (2007). So, like the 

certification-statement theory, this approach rests on the open 

legal question of the liability of a certification mark’s user for 

the erroneous certification of a product by the mark’s owner. 

But even if that issue is resolved in favor of imposing liability 

on the mark’s user, plaintiffs could not prevail under the 

absolute-compliance theory. Neither the Energy Star logo’s 

ordinary meaning nor its established industry or regulatory 

meaning allows a fair understanding that the logo affirmed, 

promised, or described clothes washers as Energy Star 

compliant when tested at Fill Level 3 rather than Fill Level 4.

Ordinary Meaning

The ordinary meaning of the Energy Star logo, which 

applies to numerous categories of products, does not indicate 

that clothes washers qualified for the Program when tested at 

Fill Level 3. The information needed to read the logo as 

warranting Program compliance at Fill Level 3 – the Energy 

Star Program’s efficiency standards, the J1 Test Procedure, the 

July 6 guidance, and appliance manufacturers’ pre-2010 

testing practices – is well beyond the ken of an ordinary 

purchaser. As a reference point, the named plaintiff with the 

most detailed pre-litigation understanding of the Energy Star 

Program did not possess that degree of technical 

understanding.24 Similarly, one of plaintiffs’ own expert 

witnesses opined that “[c]onsumers don’t understand the exact 

technical details of the amount of energy efficiency.” Supp. 

App. 368 (Dep. of Dr. Ramamirtham Sukumar).

24 App. 946 ¶¶ 196–97 (Pls.’ Resp. to Defs.’ Statement of 

Material Facts) (summarizing deposition testimony from 

Aspasia Christy that she understood the Energy Star logo to 

warrant “about 50 percent savings in water and 37 percent 

savings in electricity” but that she did not know of the J1 Test 

Procedure or testing using the different possible fill levels).
33

Specialized Meaning

In Whirlpool’s view, the lack of evidence that ordinary 

consumers understood the specific requirements of the Energy 

Star Program clinches the case. But under New Jersey’s 

adoption of the Uniform Commercial Code, “all descriptions 

by merchants must be read against the applicable trade usages”

in assessing the scope of an express warranty. N.J. Stat. Ann. 

§ 12A:2-313 cmt. 5. Accordingly, the use of a specialized term 

or symbol can create an express warranty by incorporating an 

established industry or regulatory meaning. See, e.g., Simpson 

v. Widger, 709 A.2d 1366, 1371–72 (N.J. App. Div. 1998) 

(examining the specialized or technical meaning of the term 

“sound” when used to warrant the condition of a horse); 

3 David Frisch, Anderson on the Uniform Commercial Code

§ 2-313:84 (3d. ed. 2022) (“A statement by the seller that the 

product, a swimming pool, could be used commercially 

constituted an express warranty that the product complied with 

local regulations applicable to commercial use.”). And 

certification marks, too, can be used to signal compliance with 

industry or regulatory standards. See 15 U.S.C. § 1127;

Opticians Ass’n of Am., 920 F.2d at 190 n.3. Indeed, certain of 

Whirlpool’s promotional materials characterized its display of 

the Energy Star logo as representing its clothes washers’

compliance with federal standards of energy efficiency.

Nonetheless, for the relevant time period, the record is 

barren of evidence that even under its industry meaning, the 

Energy Star logo warranted that the clothes washers qualified 

for the Program when tested at Fill Level 3. Ambiguities in the 

testing parameters before the July 6 guidance and uncertainties 

associated with its effective date prevented the guidance from 

being fairly understood as changing the meaning of an Energy 

Star logo displayed on clothes washers such that the logo 

warranted successful testing at Fill Level 3.

Before the DOE guidance on July 6, 2010, the J1 Test 

Procedure was ambiguous. DOE recognized that, without 

additional clarification, the term ‘uppermost edge’ could be 
34

fairly understood to refer to multiple different fill levels, 

including Fill Level 3 and Fill Level 4. See Energy 

Conservation Program for Consumer Products: Test Procedure 

for Residential Clothes Washers, 75 Fed. Reg. 57,556, 57,559 

(Sept. 21, 2010) (stating that the J1 Test Procedure permitted 

“[d]ifferent allowable interpretations of the maximum water 

fill level”); id. at 57,574 (observing that the J1 Test 

Procedure’s “general specification of the water fill level could 

lead to multiple capacity measurements”). Confirming, at a 

minimum, the lack of an accepted industry or regulatory 

meaning of ‘uppermost edge,’ DOE in 2007, through the 

Berringer email, had permitted Whirlpool to qualify its clothes 

washers for the Energy Star Program based on testing at Fill 

Level 4. In light of that uncertainty, especially during Energy 

Star’s era of manufacturer self-testing, Whirlpool’s use of the 

Energy Star logo before July 2010, without more, could not be 

fairly construed as incorporating an established industry or 

regulatory meaning that its Maytag Centennial clothes washers 

had been tested at Fill Level 3 instead of Fill Level 4. See N.J. 

Stat. Ann. § 12A:1-303(c) (requiring a trade usage to have 

“such regularity of observance in a place, vocation, or trade as 

to justify an expectation that it will be observed with respect to 

the transaction in question”).

Contrary to plaintiffs’ assertions, the July 6 guidance did

not definitively resolve that ambiguity for clothes washers that 

displayed the logo and were sold beforehand. There is a 

general presumption against retroactive regulation, see Bowen 

v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), and 

nothing about the July 6 guidance overcomes that presumption. 

As a work-around, plaintiffs characterize that guidance as an 

interpretive rule that merely clarified the meaning of an 

existing regulation, the J1 Test Procedure. See Levy v. Sterling 

Holding Co., 544 F.3d 493, 506 (3d Cir. 2008) (explaining that 

“where a new rule constitutes a clarification – rather than a 

substantive change – of the law as it existed beforehand, the 

application of that new rule to pre-promulgation conduct 

necessarily does not have an impermissible retroactive 
35

effect”). Yet even if the July 6 guidance were a valid 

interpretive rule – a debatable proposition25 – it would not 

transform the meaning of the Energy Star logo on clothes 

washers for express-warranty purposes. Under New Jersey’s 

Uniform Commercial Code, to constitute a warranty, that 

change would had to have been “fairly . . . regarded as part of 

the contract.” N.J. Stat. Ann. § 12A:2-313 cmt. 7; see also

Liberty Lincoln-Mercury, 171 F.3d at 825; N.J. Stat. Ann. 

§ 12A:2-313(1) (requiring the affirmation, promise, or 

description to form “part of the basis of the bargain”). And the 

July 6 guidance could not be fairly regarded as part of the 

contracts for clothes washers previously sold and accepted.

After its issuance, the July 6 guidance did not immediately 

transform the meaning of the Energy Star logo on clothes 

washers. The guidance affected which clothes washers could 

25 To qualify as an interpretive rule, an agency rule must do 

more than resolve an ambiguity; it must do so through an 

interpretative method as opposed to policy considerations. See 

Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) 

(describing interpretive rules as “issued by an agency to advise 

the public of the agency’s construction of the statutes and rules 

which it administers” (emphasis added) (quoting Attorney 

General’s Manual on the Administrative Procedure Act 

(1947))); see also Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 

170 (7th Cir. 1996) (limiting interpretive rules to those that 

“can be derived from the regulation by a process reasonably 

described as interpretation”). Yet DOE’s guidance does not 

invoke any of the traditional tools of construction. See Kisor 

v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (defining the standard 

“interpretive tools” to include the “text, structure, history, and 

purpose” of a regulation or statute). And even if the July 6 

guidance were an interpretive rule, it would “not have the force 

and effect of law” nor would it be “accorded that weight in the 

adjudicatory process.” Perez v. Mortg. Bankers Ass’n, 

575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey Mem’l 

Hosp., 514 U.S. 87, 99 (1995)).
36

qualify for the Energy Star Program, and it ultimately resulted 

in the disqualification of the three Maytag Centennial 

models.26 But by statute, “a new or a significant revision” to 

any Energy Star “product category, specification, or criterion”

cannot take effect for 270 days unless DOE or the EPA 

specifies otherwise. 42 U.S.C. § 6294a(c)(7). It may be that 

modifications to test procedures do not qualify as revisions to 

“product category, specification, or criterion,” such that the 

270-day lead time does not apply to revisions to procedures for 

testing products. Id. But that is not clear, and without a

specified earlier effective date for the July 6 guidance, the 

uncertainty associated with the logo’s meaning when displayed

on a clothes washer prevented it from being fairly regarded as 

certifying compliance at Fill Level 3 for 270 days, until at least 

March 2011 – after any plaintiff purchased one of the models.

Assuming, for the sake of argument, that the 

July 6 guidance could have taken immediate effect, that would 

not simultaneously transform the Energy Star logo into an 

express warranty of compliance with the new guidance. A 

reasonable purchaser would still have had doubts that after 

July 6, 2010, the display of the Energy Star logo on machines 

certified something different than the logo did for the same 

models that were sold and accepted before the guidance. 

Indeed, the July 6 guidance prompted a lengthy and complex

recertification process. For Whirlpool, that change to the 

testing protocols required “an all hands-on-deck, multi-month 

effort,” consuming “more than 2,000 hours of lab time.” App. 

944 ¶ 183 (Pls.’ Resp. to Defs.’ Statement of Material Facts). 

The independent testing under DOE’s pilot program was not 

much faster. It took months to confirm that the selected 

Maytag model did not meet Energy Star standards at Fill 

Level 3. And even after that determination, DOE still allowed 

the model to bear the Energy Star label for twenty days, until 

26 Three of the named plaintiffs purchased their units after the 

July 6 guidance but before February 9, 2001, the date to which 

DOE permitted the models to bear the Energy Star logo.
37

February 9, 2011 – which was after any plaintiff purchased one 

of the machines. Thus, in the context of the regulated industry, 

it is not reasonable to understand the Energy Star logo on the 

same model clothes washer to convey a different affirmation, 

promise, or description until at least the expiration of DOE’s

permission for the logo’s use (if not the full 270 days specified 

in statute).

In sum, at least between November 2009 and December 

2010 – the time period during which the named plaintiffs 

purchased their washers – the July 6 guidance did not 

transform the prior ambiguities in the J1 Test Procedure, much 

less those in the Energy Star logo itself, into a “specific” 

affirmation, promise, or description that a clothes washer 

complied with Energy Star standards when tested at Fill 

Level 3. Herbstman v. Eastman Kodak Co., 342 A.2d 181, 187 

(N.J. 1975). Thus, the District Court did not err in rejecting 

plaintiffs’ absolute-compliance theory.

B. The State Consumer-Protection Claims

Plaintiffs also challenge the District Court’s entry of 

summary judgment against their statutory causes of action. 

Those claims were grouped by subclasses based on the 

applicable state’s consumer-protection statutes, which allow 

civil redress for unfair methods of competition, abusive sales 

practices, false advertising, fraud, and similar wrongs. See 

Dzielak, 2019 WL 6607220, at *18–27.27 The parties agree 

27 Plaintiffs’ consumer-protection claims sought redress under 

three California statutes (the Consumers Legal Remedies Act, 

Cal. Civ. Code § 1770(a), False Advertising Law, Cal. Bus. & 

Prof. Code § 17500, and Unfair Competition Law, id.

§ 17200), Florida’s Deceptive and Unfair Trade Practices Act, 

Fla. Stat. §§ 501.201–.213, Indiana’s Deceptive Consumer 

Sales Act, Ind. Code § 24-5-0.5-4, two New Jersey Statutes 

(the Consumer Fraud Act, N.J. Stat. Ann. § 56:8-19, and Truthin-Consumer Contract, Warranty, and Notice Act, id. § 56:12-

17), Ohio’s Consumer Sales Practices Act, Ohio Rev. Code 
38

that each of those statutory causes of action requires a false or 

misleading statement, the spread of deceptive advertisements, 

or conduct by the defendant that is otherwise unfair, deceptive, 

or unconscionable. See id. But, as explained above, the 

Energy Star logo cannot be reasonably construed to affirm, 

promise, or describe clothes washers as satisfying Energy Star 

standards at Fill Level 3 during the class period. And without 

any deception associated with the logo’s use on the three 

Maytag model clothes washers, the District Court did not err 

in granting summary judgment on those claims.

IV. CONCLUSION

For these reasons, we will affirm the District Court’s 

summary judgment and dismiss Whirlpool’s cross-appeal.

Ann. § 1345.02, and Texas’s Deceptive Trade PracticesConsumer Protection Act, Tex. Bus. & Com. Code §§ 17.41–

.63.