Spruce Environmental Technologies, Inc. vs. Festa Radon Technologies, Co.
The RadonAway® Radon Fan Manufacturer Wins False Advertising Lawsuit Against Competitor
After four days of evidentiary arbitration hearings, Arbitrator Judge Nancy Holtz issued an arbitration award in July 2018 in Spruce’s favor on all claims tried before her. In a 34-page Award, the arbitrator found that Festa’s “Dare to Compare” campaign targeting Spruce’s RadonAway® brand radon fans violated federal false advertising law and the Massachusetts consumer protection statute. The award permanently enjoins Festa from making any advertisement or statement to the public that inaccurately depicts the color or quality of Spruce’s radon mitigation fan products. Judge Holtz also ruled against Festa on its counterclaims in which it unsuccessfully challenged the truthfulness of certain Spruce advertisements.
Judge Holtz determined that Festa’s conduct presented “exceptional circumstances” and ordered Festa to reimburse Spruce for nearly all of its attorneys’ fees and court costs incurred over the three years of litigation. She wrote: “the [Festa] campaign has been a steady drumbeat of denigration, devoid of factual support” and “Festa engaged in an unremitting campaign in an intentional and cynical effort to link the color shifting of the Spruce fans with fail rate and quality.”
In its countersuit, Festa challenged the validity and accuracy of RadonAway®’s use of the UL-507 certification mark on certain of its fans. In rejecting this claim, Judge Holtz ruled that “All of the credible evidence supports that yes, the fans did then and do now, comply with UL 507,” and “The actual credible evidence is that Spruce is a company of longstanding good reputation, created by someone who has the education, expertise and experience to be able to ensure, directly or through trusted employees, that all Spruce fans comply with UL 507.”
In summary, the Judge ruled that Festa is “permanently enjoined and restrained” from making any advertisement, representation or other statement (written, electronic or verbal) to the public that does not accurately directly or indirectly depict:
- The color of Spruce’s radon mitigation fan products
- The quality of Spruce’s components, materials or manufacturing techniques or methods
- The status of Spruce’s radon fans as having been duly inspected, tested, certified or authorized by Intertek to be marked with the “ETL Listed” label as compliant with UL 507 standards for indoor and outdoor use unless such claim is supported by Intertek
- The status of Spruce’s radon fans as having met applicable UL 507 standards
When asked about the lawsuit, David Hill, Executive Vice President of Spruce Environmental Technologies, Inc., responded: “We welcome fair and honest competition, but here we felt that Festa crossed the line with its misleading ‘Dare to Compare’ campaign. It went beyond a ‘Coke vs Pepsi’ type of product comparison and instead portrayed our products and methods in a false and misleading way. We’re pleased with the result of this case and gratified to know that the judicial system worked to hold Festa to the high standard of honesty and integrity that all members of the radon industry share. We take radon gas seriously as the second leading cause of lung cancer and encourage all homeowners to test their homes. If their homes need mitigation, they can find qualified radon professionals in their area at radonaway.com/findpro.”
The final ruling of the Spruce Environmental Technologies, Inc., vs. Festa Radon Technologies, Co., can be viewed in its entirety below.
JAMS ARBITRATION No.1400016656
SPRUCE ENVIRONMENTAL
TECHNOLOGIES, INC.,
Claimant and Respondent in Counterclaim
v.
FESTA SUNN ENTERPRISES, INC. d/b/a
FESTA RADON TECHNOLOGIES, CO.,
Respondent and Claimant in Counterclaim
__________________________________________________________________
FINAL AWARD
Counsel:
Bradley L. Croft, Esquire
Ruberto, Israel & Weiner
255 State Street,
Boston, MA 02109
(617) 742-4200
blc@riw.com
mjd@riw.com
Counsel for Claimant
Joseph D. Steinfield, Esquire
Prince Lobel Tye, LLP
One International Place
Boston, MA 02110
(617) 456-8000
jsteinfield@princelobel.com
Counsel for Respondent/Counterclaimant
Kristin M. Knuuttila, Esquire
Knuuttila Law LLC
175 Federal Street
Boston, MA 02110
(617) 600-3010
kmk@knuuttilalaw.com
Counsel for Respondent/Counterclaimant
Arbitrator:
Hon. Nancy Holtz (Ret.)
JAMS
One Beacon Street, #2210
Boston, MA 02108
nholtz@jamsadr.com
(617) 228-0200
Place of Arbitration:
Boston, Massachusetts
Date of Final Award:
April 19, 2018
The undersigned arbitrator, was designated in accordance with the parties' Stipulation
of Arbitration, which followed the mediation of this matter. I find, conclude and issue this
Final Award as follows;
I. Introduction and Procedural Statement
Claimant, Spruce Environmental Technologies, Inc. ("Spruce"), has been a manufacturer
of radon fans, sold throughout the United States to mitigate the harmful effects of radon gas.
Respondent, Festa Sunn Enterprises Inc. d/b/a Festa Radon Technologies, Co. ("Festa"), also
manufactures and sells radon fans.
Spruce had been by far the leader in the sale of these fans for many years with minimal
competition. In 2015, Festa, in an effort to increase its share of the radon fan market engaged
in an advertising campaign. This campaign - "Dare To Compare" - featured a series of photos of
Spruce fans and components, together with descriptions, comparing Spruce fans to those of
Festa in a negative light.
Spruce filed an action in the United States District Court of Massachusetts, alleging that
Festa's advertising campaign was false and misleading, causing it damages. Spruce made claims
under the Lanham Act and Massachusetts General Laws, Chapter 93A. Festa later
counterclaimed, alleging that Spruce had violated these statutes.
Spruce sought damages as well as preliminary and permanent injunctive relief. The
Court (Gorton, J.) entered a preliminary injunction relating to certain parts of the Festa
advertising and the matter proceeded forward.
The undersigned arbitrator mediated this dispute on October 2, 2015. No resolution was
reached. Thereafter, the parties agreed to proceed to arbitration with the undersigned as the
sole Arbitrator. The evidentiary hearing took place on January 9, 10, 11 and February 6, 2018.
Each side offered documentary evidence. Each side offered testimony of witnesses. Both sides
were invited to file post hearing memoranda and have done so.
II. Facts.
The following is a statement of those facts found by the Arbitrator. To the extent that
this recitation differs from any party's positon, that is the result of determinations as to the
credibility and relevance, burden of proof considerations and the weighing of the evidence,
both oral and written.
Radon is a naturally occurring radioactive gas that forms from radium that is present in
certain soils in parts of the United States. It is a dangerous gas and in around 1986, the Surgeon
General warned about the dangers of being exposed to radon gas. Radon gas is so harmful that
it is the number two cause of lung cancer in the United States.
A radon fan is an important piece of safety equipment to combat the danger of this
radon gas. The fan detects and mitigates the harmful radon gas. Since these fans are almost
exclusively installed outdoors and have electrical components, watertightness is an important
feature.
About twenty five years ago, recognizing a demand for radon fans, David Kapturowski
(" Kapturowski" ) and his father first began as a radon testing and mitigation company. Then,
drawing on his education - Kapturowski has a degree in electrical engineering- Kapturowski
and his colleagues undertook to design and ultimately manufacture a radon fan for sale to the
radon fan market. This market is basically comprised of a specialized group of people: radon
inspection/testing companies, home inspectors and the like.
Spruce has long dominated the radon fan market. However, there was some
competition. One such competitor was Festa. Like Kapturowski, Daryl Festa ("Mr. Festa" ) and
his father opened up radon testing and mitigation business. In about 1998, they decided to sell
radon fans as ell. Festa expanded into sales by partnering with a ventilation company from the
UK, Vent-Axia. Then in 2008, Festa began manufacturing fans.
Sometime in early 2015, Festa embarked on an advertising campaign. Mr. Festa, no
doubt utilizing his bachelor's degree in communications, understood the importance and power
of advertising. Festa's intention was to increase market share of radon fans. The catalog and
accompanying website advertisement was called "Dare To Compare" which was distributed to
the radon fan market. Mr. Festa's idea was to convince customers that Festa fans were better.
The Dare to Compare catalog had as its centerpiece, photographs and descriptions of Spruce
fans, stating in words and more importantly, in a dramatic photos, that Spruce fans discolored
with age. Beyond simply suggesting that the fans discolored, more importantly, the catalog
communicated that Spruce fans were shoddily made and more likely to malfunction or degrade.
The Dare To Compare campaign was simply the beginning (although it continues to be utilized
to this day). Through subsequent advertisements, and accompanying social media postings,
Festa continued to suggest that Spruce's fans turned an ugly yellow color and had less than
sturdy components.1 Festa's efforts to cut into Spruce's market share continued. The catalog,
standing alone as well as coupled with social media postings, was intended and succeeding in
suggesting that the Spruce fans have a high failure rate and create concerns about the dangers
of cancer causing radon gas.
The catalogs were disseminated to a wide audience nationally through mailings, handed
out a trade shows in various parts of the country and referenced on Festa's website.
_____________________
1 The publications, e.g. the red cut catalog, discussed infra, tweets, Facebook postings, etc.
which followed the Dare to Compare catalog's publication are referenced because they are
relevant to support inferences drawn regarding state of mind and intent, relevant when making
equitable decisions and relevant when considering whether or not this presents an exceptional
case.
Yellowing Fans:
Probably the highlight of the Dare To Compare catalog was the photograph
pared to the Festa fan. ruce fans, until sometime in 2017, had a
tendency to discolor over time. This was due to a substance with which the housing was
treated. The fan would discolor over time from white to an almost mustard and sometimes
taupe color. At no time was there any reason to believe that the color of the fan had any impact
whatsoever on its performance, durability or safety. However, Mr. Festa decided early on that
this discoloration presented an opportunity and he seized it. Mr. Festa has testified that it never
crossed his mind that the photograph he selected was different from the fan he photographed.
He further testified that his "sole purpose" was to convey that Spruce's fans turn color and
Festa's do not. This testimony is rejected as lacking credibility.
Mr. Festa took photographs of the Spruce radon fan. Despite knowing that the
photograph was not an accurate depiction of the color of the Spruce fan, Mr. Festa nonetheless
chose a photograph of a Spruce fan looking like it had discolored to an almost neon yellow
color. It is true that this was in fact a photograph of the fan. It is also true, however, that it
looked nothing like actual color of the fan; and that Mr. Festa knew it.
Lead wires:
The catalog depicted Festa's lead wires as being solid while depicting Spruce's as a
tangle of frayed wire. Neither was true. Festa's were not solid and Spruce's were not frayed.
The fraying occurred either during the process of disassembling the unit or through intentional
pre-photo manipulation of the lead wires. Festa appears to at least admit at this point, that the
statement that its wires were solid was untrue.
Terminal box lid:
The photos depicted an access panel on the Spruce fan attached by twoscrews as opposed to Festa's four screws.
The text accompanying the photograph stated that the Festa fasecured with fo not - have any objective evidence such
as studies or other data to support the claim that screws ensures a watertight fit and two does not. It also references vibration
to suggest that there is less vibration in the Festa fan. This is not true.
Motor:
Although the motors in the Spruce fans are identifiable (albeit not as easily as those on
Festa fans), the Dare To Compare campaign suggested that ulike Festa motors, Spruce motors
were "generic." This is not true.
Lock lever nuts:
In comparing lock lever nuts, Festa describes those depicted on the Spruce fan
as being "inexpensive" as compared to Festa' s. The context of the commentary with the
photograph is to leave one with the impression that Spruce uses cheap materials. Again, there
was no factual basis upon which to suggest that the "inexpensive" nuts performed less
effectively. In fact, these are used quite commonly by electricians.
Factory sealed wires:
In the Dare To Compare catalog, the wires are depicted as being pulled
away. Further, there is text accompanying the photograph referencing the Festa motor wires as
"factory sealed" compared to the Spruce motor wires as "caulked to seal." Despite the absence
of any data to suggest that the Spruce motor wire is lacking, the photograph - which is
inaccurate - and text - leave the impression that upon purchasing a Spruce fan, one must do
some caulking to prepare it. This is not true.
Grommets:
As with the motor wire, the photographs of the grommets and accompanying text
suggest that a buyer of a Spruce fan would need to do some caulking before installation
("plastic sleeve requiring caulking"). The statement that Festa's grommets are "watertight
pivoting grommets" compared to grommets requiring further caulking is untrue. They are
caulked by Spruce at the factory and no "further" caulking is required of installers. Thus, this is
not true.
The negative descriptions of Spruce fans continued in a subsequent catalog, referred to
as the "red cut" catalog. The red cut catalog was published and distributed by Festa while
subject to the strictures of Judge Gorton's preliminary injunction. In that catalog, Spruce fans
are depicted - although the photographs of the actual fans more accurately reflect the
discoloration. However, the notorious neon yellow color is splashed on the same page as the
Spruce fans with the text "50 Shades of Yellow." Presumably in order to comply with the letter
if not spirit of Judge Gorton's preliminary injunction, the red cut catalog also includes what can
best be described as "lawyer language" in fine print at the bottom of the page, making
disclaimers.
While neither Mr. Festa's wife nor daughter are employees of Festa, it is clear that each
is involved in the company and each is well versed in Festa's particular negative campaign
against Spruce. Each has acted and continues to act, through social media and attendance at
trade shows, with the knowledge and approval of Festa's principal, Mr. Festa. Some of these
postings remain live.
As referenced, Festa's campaign chronicling the many claimed deficiencies and
problems with Spruce fans was not limited to traditional advertising. It was also posted
throughout social media. Festa accompanied photos of the fan with various statements
suggesting that the yellowing of the fan is symptomatic of the housing degrading, a high fail
rate with a resulting concern that cancer causing ultraviolet rays will result. In the words of Mr.
Festa's wife, Michelle, "too bad [Spruce] fans fail at an astounding rate ... " Mrs. Festa made
these statements in tweets which were contemporaneous with a large New England home
inspectors trade show. In fact, Mrs. Festa's statements include a hashtag #NEASH2015.
Mrs. Festa also tweeted with a photograph of a Spruce fan the need for quality fans in order to
fight cancer causing radon.
The negative comments with photographs of Spruce fans also appeared on Festa's
Facebook page. Mr. Festa's daughter, on behalf of Festa, uploaded a series photographs of
Spruce fans, including the Spruce logo, utilized without authorization from Spruce.2 This
particular posting utilized Spruce advertising of its fans, with logo displayed, in which Spruce
touts "cutting edge" technology. But, throughout the posting, Festa juxtaposes Spruce's claim
of "cutting edge", with the words "cutting corners" and depicting photographs of failed motors
or rusted components in Spruce fans, yellowed fans and the like.
_________________________
2 There is no claim before the Arbitrator of misappropriation of image. This is noted to the
extent it illuminates the issue of whether permanent equitable relief is appropriate and
whether or not attorneys fees and costs are appropriate.
Spruce's entire team received telephone calls and emails, concerned about the quality
of Spruce fans as a result of the Dare to Compare catalog. This included concern about the
yellowing and general issues with quality and durability. The result of this campaign is reflected
in substantially increased sales for Festa. Spruce has experienced a lesser sales rate as a result
of this campaign. Given that there is really only one other minor player in the radon fan
industry, I draw a reasonable inference that much of Festa's market share has come from
Spruce's share - which in turn is the result of the Dare to Compare catalog.
In May of 2017, Spruce finally was able to address the yellowing problem for its fans.
Fans currently being marketed have a new housing which does not yellow. So at least for this
feature, it would appear that there is no factual basis upon which to urge a potential buyer of a
radon fan to "compare" the yellowing of the housing. There was no evidence that there was a
resale market so the yellowed fans are now a thing of the past which current or future buyers
will not encounter. Despite this, the claims continue by Festa, in catalogs as well as the website.
As previously mentioned, radon fans are electrical and are mounted on the exterior of
buildings, making it important to know that they are watertight and otherwise safe for use.
Manufacturers of radon fans assure their buying audience of the suitability and safety of their
products in the same way as with any other electrical appliances: they seek approval from a
Nationally Recognized Testing Laboratory which in turn gives them the right to affix an "Electric
Testing Laboratory" ("ETL") approval label on their fans. This assures the buyer that the product
it has been tested for compliance with OSHA regulations.
There are two ETL labs utilized by manufacturers in the United States for testing and
validation of of electrical equipment: United Laboratories ("UL") and lntertek Testing Services
("lntertek"). like UL, lntertek is permitted by OSHA to test, certify and attach a label or "mark"
on any electrical appliance that passes muster per OSHA requirements. UL 507 is the safety
standard for electric fans in the United States. In order to be able to affix the ETL seal of
approval and advertise the fans as having been approved, the fans must be presented to
lntertek for review and testing. Once a product has undergone the necessary testing and review
by lntertek, data is recorded and a report is generated. Upon assurance that the product does
in fact pass the safety standards, lntertek issues an Authorization To Mark ("ATM") which is
permission to affix lntertek's ETL mark on its products for sale. It does not end there. In order to
maintain the ATM for its products, a manufacturer - in this case, Spruce, is expected to
resubmit products as they are changed and otherwise comply with whatever requirements
lntertek conditions its ATMs upon. For example, Spruce is subjected to surprise inspections at
its facilities. In this way, lntertek can ensure that Spruce is continuing to manufacture the
product consistent with the ATM as submitted to the laboratories. lf for any reason, lntertek
detects any deviance in construction or materials, it would issue a variance notice, allowing the
manufacturer a period of time to come into compliance. Since manufacturers can have many
models and variations, the ETL lets the manufacturers like Spruce know what it needs to do the
necessary testing (for example, if there are numerous models of basically the same fan, lntertek
would request for a subset or exemplar, rather than have Spruce provide a large number of
fans where there is no meaningful difference from lntertek's perspective. It is lntertek's
decision. When manufacturers create new products or alter existing products in such a way to
warrant a re-inspection, further review occurs. This is done by either the manufacturer
contacting the ETL seeking updated approval or by a surprise inspection. The manner in which
the ATM is policed is determined by lntertek. lntertek decides whether or not a manufacturer
runs afoul of its requirements.
During their relationship, Spruce's fans have been routinely submitted for testing and
approval at lntertek. These fans have passed the various test, such as the Water Spray tests.
lntertek, not Spruce, is responsible for creating and maintaining the records of the testing.
Given that Spruce first began submitting its products to lntertek around 1992, it will come as no
surprise that records created and maintained in a pre-electronic form, are not currently
available. lntertek certainly intends and endeavors to maintain all of its records of its customers
included the old paper records. When the present counterclaim filed by Festa was made - that
a number of Spruce's fans do not comply with UL 507 due to inadequate, incomplete or nonexistent
testing - Spruce did three things: (1) Spruce made bona fide inquiries of lntertek in an
effort to find the now missing records which support the ATMs granted by lntertek for Spruces
products. Spruce appears to have repeatedly requested lntertek to search for the records to no
avail; (2) Spruce has made itself open to surprise lntertek inspections - which have occurred
many times over the years - which would have been the occasion for lntertek to ascertain if
Spruce was manufacturing deficient products or components or had made revisions which
ought to have warranted a resubmission. At no time has lntertek discovered any product,
component, revision or other information which has warranted a notice of variance let alone a
withdrawal of authorization to mark any Spruce fans; (3) for the avoidance of doubt on the
point, Spruce has asked lntertek to scour its records to find the original testing and reports and
to double check these products for whether or not they comply with UL 507. All of the credible
evidence supports that yes, the fans did then and do now, comply with UL 507. Therefore,
regardless of the state of lntertek records, there is no doubt that the advertising by Spruce of
its products as ETL approved was and remains true. There is no credible evidence to find that
Spruce was subject to the precise language of the Certification Agreement currently in use by
lntertek now, an unsigned prototype of which was entered in to evidence.
However, even in the absence of a written edict, Spruce has in fact resubmitted
products which in its view warrant re-testing by lntertek and made itself open to surprise
inspections to confirm its compliance. The absence of any notices of variance or other action by
lntertek confirms that lntertek is in agreement with what products have been submitted and
the results. If Spruce at any time had not submitted a fair representation of its fans or the
correct ones or had swapped out a component which lntertek viewed as lacking, the surprise
inspections would provide the opportunity for lntertek to police its mark and take action if
necessary.
Based on all of the credible evidence, Spruce's products were properly tested and
approved in order to receive the sought after ATMs. Further, Spruce has at all times advised
lntertek of modifications of existing products and/or introduction of new products and has
provided lntertek with the necessary products in order for the testing and evaluation to occur.
Spruce was not a signatory to a written Certification Agreement. However, based on the
evidence, it is clear that Spruce complied with its obligations to present products where
appropriate, for further testing and review to lntertek; further, in further compliance, Spruce
has made itself open to surprise inspections, again to ensure ongoing compliance with UL 507.
Radon fans need to have a label "Outdoor Use" in order to meet the requirements of UL
507. This is installers can look at it and know it is safe to use outdoors. The failure to have an
Outdoor Use label on the product would leave an installer unsure of whether or not the
product is safe for outdoor use. Therefore, upon learning that certain of Spruce's fans lacked
this label, arrangements were made to correct this. In the meantime, any installer would be
able to ascertain that these fans were fit for outdoor use by that notation in the installation
instructions. Upon learning that the Spruce fans lacked this labeling, lntertek did not take and
has not taken no action such as a notice of variance.3 Spruce manufactured and sold its fans for
outdoor use. They passed the testing for outdoor use and were approved by lntertek for
outdoor use. lntertek gave Spruce an ETL to so advertise the fans. They were so advertised as
ETL approved for outdoor use. At all relevant times, they were in fact fit for outdoor use. At no
time, did lntertek withdraw or even put Spruce on notice that its ATM was in peril. Spruce's
advertising that its fans were ETL approved for outdoor use was accurate and at no time has
this changed.
_________________________
3 This could fairly be likened to the fact that although the Festa fans are qualified for outdoor
use and have been given an ATM to tout this on its labels, some of Festa's fans, no doubt
through a similar inadvertence as with Spruce's omission of the label, have the ETL label
obscured by other labeling. This does not change the fact that at all relevant times, Festa's fans
are fit for outdoor use, have been tested and given an ATM for outdoor use and Festa has so
advertised the fans as ETL approved for outdoor. The failure to accurately display this piece of
significant information is merely ministerial and no doubt accounts for why, like lntertek vis-avis
Spruce, UL did not issue any type of variance to Festa or otherwise withdraw the ATM
regarding these fans. This is a ministerial oversight which in no way affects the safety of the
product nor does it render Festa's claim of worthiness for outdoor use untrue or misleading.
Spruce received communications from multiple existing customers regarding the
content of the Dare To Compare campaign. There is no doubt that many of Spruce's present
and potential customers were exposed to the Festa Dare to Compare campaign. This would
have been through mailings, handouts a trade shows or on Festa's website. Further
advertisements and publications underlined and confirmed Festa's Dare to Compare campaign.
The message was not simply to point out that the fans discolored and while Festa's did not.
Festa intended to and did in fact send the message in its advertising that Spruce's radon fans
were inferior because of shoddy workmanship, cheaper - and hence more unreliable -
components. The result of these claims was the clear message to the radon fan buying
audience that Spruce radon fans are shoddy and unreliable.
As in any business, Spruce from time to time lost customers as a result of dissatisfaction
with pricing, customer service or any number of things. However, some of Spruce's customers
expressed concerns about what they had learned from the Festa campaign. Some changed
manufacturers as a result of their worries about Spruce fans. The change away from Spruce
usually went to Festa. Beyond specifically articulated concerns by Spruce customers, the
dissemination of the Dare to Compare catalog and red cut catalog was so wide among the
radon fan purchasing world, many such purchasers - like home inspection companies - were
also likely affected by the negative information contained in the Festa campaign. While it
remains a healthy company and its sales have grown over the last few years, Spruce's market
share suffered as a result of the Festa campaign.
At some time around May of 2017, Spruce was finally able to tackle the problem of the
yellowing housing of its fans. The yellowing never affected the performance or longevity or any
other qualities save cosmetic of Spruce fans. However, Spruce was able to re-tool its housing
and create a new, non-yellowing housing. The result is that except for fans already purchased,
any new fans purchased from Spruce since May of 2017 are not subject to the yellowing which
was the centerpiece of Festa's claims in its Dare To Compare campaign. Since there are no more
yellowing fans being sold by Spruce, the notion that buyers ought to beware of this
phenomenon and not purchase Spruce fans is groundless. Nonetheless, Festa has continued to
utilize the advertising which raises the specter of inferior quality and related safety concerns
were one to buy a Spruce fan.
On April 3, 2017, the United States District Court (Gorton, J.), enjoined Festa from
advertising the yellow fan in its catalogs. Mr. Festa photographed a Spruce fan and used one of
his photographs for his Dare To Compare catalogs. While he did not "doctor'' or alter the
photograph, the fact is that anyone looking at the actual fan and how it appeared in the
photograph can easily see that the photograph used is not a fair and accurate representation of
what the fan actually looked like. Mr. Festa denied that he was aware of this. Mr. Festa had no
reason to believe that the yellowing affected performance, durability, or any other aspect of
quality of the Spruce fan. In spite of being subject to a federal court injunction, Festa continued
to peddle the idea to the radon fan buying industry that Spruce fans were inferior and had
performance issues. While not an issue of controversy, it should be noted that the advertising
catalogs were disbursed throughout the United States, including being handed out at trade
shows, on a website which available nationally, and sent to customers, who are found in parts
of the country plagued by radon gas.
Ill. Analysis
In considering both Spruce's claim and Festa's counterclaim, I have held each to its
burden of proof and applied a standard of fair preponderance of the evidence. The evidence is
that which I find to be credible. It includes testimonial and documentary evidence. It includes
both direct and circumstantial evidence. Where I have looked to circumstantial evidence, I have
only drawn inferences where there is a factual basis upon which I may draw such an inference
and any inferences drawn have been reasonable. No inference has been drawn where it is
based simply upon the argument of counsel, speculation or guesswork.
Summary of parties' positions:
At its essence, Spruce's claim is that Festa engaged in an
unlawful advertising campaign in an effort to increase its own market share. Spruce claims that
Festa sought to do so by utilizing false and/or misleading depictions of Spruce products and
false and/or misleading comparisons between Spruce and Festa products. Spruce claims to
have lost customers because of this advertising campaign and suffered a general loss of
reputation as well. Spruce claims that due to the past conduct of Festa, a permanent injunction
is necessary to ensure future compliance with the strictures of the Lanham Act. Finally, Spruce
argues that under all of the circumstances, Festa's conduct warrants the awarding of attorneys
fees and related costs under both the Lanham Act and G.L. c. 93A.
Festa responds that some of its advertising is true and where it is not, it is de minimus.
Festa argues that some of the more toxic claims against Spruce were done by Mr. Festa's wife
and his daughter. Festa disavows any knowledge of or responsibility for their actions. Festa also
argues that there is no evidence that Spruce lost any customers - or was likely to lose
customers - because of its Dare To Compare campaign. Festa argues that no injunctive relief is
necessary nor should there be an award of attorneys fees and costs.
The Spruce Claim:
15 U.S.C. Section 1125(a), "the Lanham Act", is a consumer protection law, designed to
protect consumers and competitors from false or misleading advertising, resulting in unfair
competition.
The elements of a Lanham Act violation are (1) the defendant made a false or
misleading dehscription of fact or representation of fact in a commercial advertisement about his
own or another's product; (2) the representation is material...; (3) the misrepresentation
actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the
defendant placed the false or misleading statement in interstate commerce; and (5) the
plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct
diversions of sales or by a lessening of goodwill associated with its products. Cashmere & Camel
Hair Mfrs.,lnst. 284 F. 3d at 310-11, citing Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,
228 F.f 3d 24, 33 n. 6 (1st Cir. 2000). Spruce has met its burden of proof on each of these
elements.
The Dare to Compare advertisements are either false and/or misleading.
The color yellow: After several years of litigation, mediation and now arbitration, it appears
that there is little dispute regarding many facts. When the original catalog was published,
Spruce fans did in fact discolor - to a yellowy and/or brownish tinge; the Spruce fans never
turned the ugly yellow color depicted in the Festa advertisements - this includes the
photograph of the fan itself as well as the hardly subtle use of the same neon yellow color in
the "50 Shades of Yellow" advertisement contained in the red cut catalog; at no time was there
any evidence - or good faith basis to believe otherwise - that the yellowing of the fans was
related to quality. To the contrary, the credible evidence is that the housing of the fans
discolored to an unsightly color but was no cause for alarm regarding quality. Mr. Festa's
testimony that he never intended to project a message that the yellow color equates to lesser
quality is rejected as utterly lacking credibility. Festa argues that the message it intended to
convey was simply that Spruce's fans change color from white to yellow, while Festa's do not.
This is not the message it sought to convey- Festa intentionally sought to convey the message
that the yellowing was not merely unsightly - rather, it was indicative of a deeper more
significant quality problem.
It is also undisputed that Spruce fans, as of this writing, no longer discolor to a tone of
yellow. Spruce utilizes a new technology to prevent this. In other words, the whole issue is and
has been rendered moot. Yet the Dare to Compare advertising remains "live" - through
catalogs, the Festa website and related social media postings. Festa's claim that it did not
intend to couple the canary yellow color depicted in its advertising with quality is belied by the
very statement in the Dare to Compare catalog: "A 7 year old [Festa] Fan vs. [a] 5 year old fan
from our competitor ... which would you rather have on one of your systems?" Statements like
this, as well as the use of the highly misleading bright yellow fan color are both literally false as
well as misleading. It is highly likely that by necessary implication, consumers would connect
the unsightly yellow color with being a warning sign that the fan itself was undergoing a
degradation process of some kind. Given the context of the statements with the photographs,
this claim is literally false by necessary implication. Clorox Co. at 34-35. Similarly, by necessary
implication, a consumer would be of the view that the various component parts described and
compared in the catalog are not just less expensive - they are, by necessary implication -
indicative of slipshod manufacturing and/or materials.4
_______________________
4 Festa has conceded that the claims regarding the solid lead wire are "de minimus." Were this
the only misstatement, this argument might be true. But this claim is part of the entire mosaic
created by Festa trying to convince the radon fan industry that Spruce fans are junk.
5 It is true that Judge Gorton had queried whether or not the color of the fan could be an
"inherent quality or characteristic." This was done in the summary judgment context before the
facts had been found. Now, with the benefit of a multi day evidentiary hearing, that question
can fairly be said to have been answered with a resounding "Yes."
The materiality of the statements is clear since the false and misleading statements all
relate to the inherent quality and characteristic of the product. Some may have thought that
color is merely cosmetic and not particularly important. But Festa engaged in an unremitting
campaign in an intentional and cynical effort to link the color shifting of the Spruce fans with
fail rate and quality.5 The fact that Festa chose to repeatedly highlight the color yellow and the
manner in which it was received by the radon fan industry (comments by customers directed to
Spruce) is itself support for this finding of materiality. Where, as here, false and misleading
statements have been made regarding such an inherent quality and characteristic, this will
suffice to support proof of materiality. Cashmere & Camel Hair M/grs., Inst., 284 F. 3d at 311,
Spruce has further buttressed its claim of materialityce consumer buying decisions. I credit the
testimony that Spruce lost business becaus by actual credible evidence that the false
and misleading statements by Festa did in fact influene of consumer complaints and concerns about what
the customers had read in the Festa advertising. Festa argues that there was no competent
evidence on this point. However, based on all of the evidence, I draw the inference that it was
not merely one or two people who were influenced by the campaign. Customers or potential
customers were concerned about the quality of the Spruce fans. The yellowing of the housing
had been a longstanding feature and aside from its cosmetic unattractiveness, it was not a
problem for Spruce (not to mention that the yellowing was never at a level or degree as
depicted by Festa.) Before the Dare to Compare catalog, the actual color of the fan - at the
time of purchase and discoloring over t ime was considered by customers, at most as an
aesthetic negative. As a direct result of Festa's campaign, however, the color of the fan was
intentionally and falsely linked with performance, lifespan, degradation and failure rate of the
product. Because this advertising is false, Spruce is not required to prove actual consumer
confusion. Cashmere & Camel Hair Mfrs. Inst., 284 F. 3d at 314 quoting Clorox, 228 F. 3d at 33.
To paraphrase the First Circuit, where the false advertising is about something which is
material, i.e. relates to an inherent quality or characteristic, common sense tells us we can
presume consumer confusion. Cashmere at 315.
The target audience for Festa's advertising was the radon fan installation profession. "A
target audience's special knowledge of a class of products is highly relevant to any claim that it
was misled by an advertisement for such a product." DeSena v. Beekley Corp. 729 F. Supp. 2d
375, 393 (D.Me.2010). Spruce's customers - these radon fan professionals - were well aware of
the yellowing feature of Spuce fans. But nonetheless Spruce had long held a commanding
position in the market. In other words, the buyers did not really seem that concerned about the
yellowing. It was only after the Dare to Compare campaign did Spruce start to hear from its
customers, worried - not just about the fan's yellowed housing. Rather, customers started
asking questions and expresses concern about the quality of Spruce fans. This was because of
the Dare to Compare advertisement.
Much time was spent on not only the yellowing of the fans but the component parts. In
some instances, Festa has attempted to argue that the comparisons were innocent and not
literally false. As to some of the other components discussed, some may be more fairly
characterized as "misleading' rather than "false." In these instances, customer confusion is not
automatically inferred. However, this distinction does not save the day for Festa. Where there
is proof that the advertising was intended to deceive or mislead customers, there is no need for
Spruce to prove consumer confusion. Cashmere & Camel Hair Mfrs. Inst., 284 F 3d. at 316,
citing Porous Media Corp. v. Pall Corp.,, 110 F. 3d 1329, 1333 (8th Cir 1997) and U-Haul Int' /, Inc.
v. Jartran, Inc., 793 F. 2d 1034, 1041 (9th Cir. 1986).
It is beyond any doubt that, Mr. Festa set about in a calculating manner to go through
every single aspect of Spruce's fans with one goal: to building his business by showing that his
fans - Festa fans - were better than Spruce fans. Despite Mr. Festa's newly minted claims of
innocence, he did this by intentionally depicting and describing not only the color of the fan and
suggesting disturbing qualities which accompanying the yellowing of fan. Mr. Festa went
further and picked through a host of small items. In each instance, Festa made statements with
no basis in fact. For example, not only was there no testing or objective data to support that
four screws on the lid versus two made it more watertight. In fact, it is possible that it is just the
opposite. But Festa took the various components and made references sure to hit a nerve with
buyers and evoke feelings of concern about quality, performance, durability and safety.
There is no dispute that the false and misleading advertisements were placed in
interstate commerce.
The harm to Spruce manifested itself in reduced sales and a general erosion of good will.
It is true that Spruce's sales have increased since the Dare to Compare campaign. But is true
that Festa's own sales have also increased at a higher rate since the campaign. Given that the
two companies are basically the only two real players in the radon fan industry, a reasonable
inference is drawn that Festa's booming sales have occurred at the expense of Spruce's. Spruce
lost some customers who expressed concerns about the Festa claims.
There was no evidence introduced to suggest that Festa had particularly better pricing,
customer service or any other features which account for the migration of customers from
Spruce to Festa. A reasonable inference is drawn that the move from Spruce to Festa is because
existing or potential customers were influenced by the Dare to Compare claims of Spruce
inferiority. Spruce has been harmed by Festa.
The question then is what is a reasonable remedy? Spruce suggests that nothing short of
a permanent injunction will do. I agree. Judge Gorton's preliminary injunction seemed to be
little more than a speed bump to Festa. In its post-hearing brief, despite the fact that Spruce no
longer has an issue of yellowing fans, Festa states that nothing in Judge Gorton's ruling or in
common sense "makes the color yellow off limits" to Festa. While this is simply argument of
counsel and not an actual statement of intent, it is troublesome.
After Judge Gorton's entry of the preliminary injunction, Mr. Festa, his wife and daughter
continued to peddle the story that - reduced to its essence - Spruce "cuts corners" and as a
result, its fans fail at an "astounding rate" with a resulting risk of cancer from unmitigated
radon gas. The fine print lawyer language at the bottom of the "5O Shades of Yellow" coupled
with the clever way in which the canary yellow is splashed everywhere but literally on the fan
itself appears to be Festa's attempt to avoid a contempt proceeding by staying within the letter
of Judge Gorton's order but certainly running afoul its spirit.
As far as Mr. Festa's wife, Festa claims that the record contains no evidence identifying who follows
her Twitter account, much less that her followers are radon professionals. There is
evidence to support this Arbitrator's inference that at least some number of followers are radon professionals:
at least regarding one vitriolic grouping of tweets, all of the evidence points to the fact that she was at or at
least somewhere offsite but "in the wings" during a New England conference of radon professionals.
Her knowledge of and involvement in Festa's business - and in particular Festa's ongoing campaign
to malign Spruce by raising the specter that the yellowing of the fans might relate to malfunctioning.
Similarly, Mr. Festa's daughter's actions in posting on Festa's Facebook page were done with the apparent - if not actual -
authority of Festa and have certainly never been repudiated by Festa.
Further support for the need for a permanent injunction is found in the continuing use
of the Dare to Compare campaign in the current catalog, social media and on Festa's website -
when Festa is fully aware that Spruce has changed its housing and it no longer yellows. The
argument that "there are still lots of these fans from pre-May, 2017 is disingenuous. By
definition they have already been purchased. There was no credible evidence introduced that
Spruce continues to sell old fans. Yet the campaign continues.
Festa suggests that the issue of the discoloration of the fan is moot. Festa states that it
no longer publishes the Yellow Fan advertisement. This claim is not consistent with the credible
evidence. Festa directs he Arbitrator to the Burndy decision in which the Second Circuit upheld
Judge Dorsey's denial of equitable relief because of a subsequent rectification and the absence
of any likelihood of repetition. Burndy Corp. v. Teledyne Industries, 748 F.2d 767, 774 (1984).
Far from any rectification, it appears that Festa continues to utilize the Dare to Compare
campaign - in written and electronic form, e.g. on Festa's website. Similarly, Festa notes that in
Arbor-Jet 63 F. Sup. 3d, 149, 157 (2014), injunctive relief was not necessary because of a
submission of a letter indicating that the party would not make further advertising statements.
In that instance, the Court treated it as a binding stipulation that "need not be addressed
herein." Festa's attempt to liken the present situation to that of Arbor-Jet misses the mark: In
Arbor-Jet, this letter was quickly and unequivocally provided to the court at a preliminary stage.
This case, on the other hand, has been protracted and except for some eleventh hour
statements, Festa has shown itself, in the form of Mr. Festa, to be unrepentant.
A permanent injunction will enter as set forth below.
The Festa Counterclaim
Festa asks that I draw an inference from lntertek's failure to produce test results or
reports. That inference is that lntertek's inability to produce proof of the underlying basis for its
issuance of ATMs to Spruce is evidence that the testing never took place. In the absence of any
direct evidence, Festa asks that I draw an inference that the absence of these documents must
mean they never existed. Then, from that inference, Festa asks that I further infer from the
facts that it must mean that Spruce knew it was not authorized to advertise its products as it
did. Hence, a Lanham Act violation. Such inferences are not supported by the facts and not
reasonable. To draw such an inference would be to engage in conjecture and guesswork.
Much of the evidence introduced by Festa in support of its counterclaim consisted of
reviewing with employees of lntertek various Spruce fans and components such as the
impellers and motors. As with the issue of the missing documents at lntertek, Festa again seeks
to hold Spruce accountable for the manner in which lntertek tested and certified the safety of
Spruce products. Festa claims that Spruce has committed Lanham Act violations by failing to
include the words "for outdoor use" on some of its labels, by breaching its obligations with
lntertek to submit its products to lntertek for retesting, thus rendering the label "ETL Listed" as
a false statement. Finally, Festa takes issue with Spruce's comparison catalog in which Spruce
compares its fans to Festa fans and touts Spruce fans as superior as replacements for Festa
fans.
That part of Festa's claim that suggests Spruce violated the Lanham Act as it relates to
how it utilized the marks authorized by lntertek falls short. It is an effort to recast the original
claim in an effort to avoid the unavoidable: Festa cannot maintain an action to police the mark.
The new theory which evolved is that Spruce did not fully and accurately comply with its own
obligations - as described in a sample Certification Agreement - to present new or revised
products to lntertek for testing; in addition, Festa suggests that the absence of the label "For
outdoor use" somehow creates a cause of action. It does not. As Board Tech tells use, if
actions like this can be brought it would allow a competitor to police a certification mark.
Private testing of a product against standards could be used to commence a lawsuit that could
expose competitive design and information to precisely the entity that should not have it."
Board Tech.
No credible evidence was introduced that Spruce was a signatory to the Certification
Agreement, a prototype or exemplar of which was introduced. Festa argues that the Arbitrator
"declined to order production" of this document when Festa's counsel called upon Spruce's
counsel, via a post hearing email, to produce it. This statement assumes that discovery was still
open. However, discovery was long closed; it could hardly be considered fair to ask Spruce,
midstream through prosecuting its claim and defending against Festa's, to cull through its
records. Finally, at no time was there any credible evidence upon which to find that Spruce was
a signatory to an agreement like this. If there were facts upon which to draw an inference that
Spruce no doubt signed such a Certification Agreement, then even in the absence of the actual
document, such an inference could have been drawn. However, there are no such facts. The
evidence from Kapturowski was that Spruce's relationship dates back 25 years. So it is just as
likely that back then, lntertek did not yet have such a form. No credible evidence was
introduced on this point. On the other hand, Festa suggests that an inference can be drawn that
Spruce was a signatory to a Certification Agreement from two sources: one is simply argument
of counsel -which is not evidence. Festa also cites another unrelated case, Sherwood
Marketing Group, LLC v. lntertek Testing Services, 2018 WL 672525 at *1 (S.D. Cal. 2018)
suggesting that the court found that "lntertek requires its customers to sign a contract, i.e. a
'Certification Agreement."' This case involved the question of whether or not a third party
beneficiary ought to be equitably estopped from avoiding an arbitration clause for events
occurring in 2013-2014. lntertek's state of affairs with its manufacturers during those years is
not particularly relevant here. However, more significantly, the Court did not make a finding as
to what lntertek requires of its customers. Rather, the Court referenced the allegations for
purposes of addressing the motion to dismiss before it, stating " [t]he following overview of the
facts are drawn from the allegations of the Plaintiff's First Amended Complaint...The Court is
not making findings of fact." An allegation in an unrelated proceeding cannot be used to base
an inference here.
In the interest of completeness, even if Spruce were subject to the language of the
Certification Agreement, there has been no credible evidence to suggest that Spruce has failed
to comply with its ongoing obligations. Festa's argument is that because Mr. Kaptuowski is
removed from the actual task of deciding which products to send to lntertek, there is no way of
knowing what was and was not sent to lntertek for testing. But this is an argument and not
evidence. The actual credible evidence is that Spruce is a company of longstanding good
reputation, created by someone who has the education, expertise and experience to be able to
ensure, directly or through trusted employees, that all Spruce fans comply with UL 507. That
Mr. Festa, subjectively believes that Spruce must be running afoul of its obligations as described
in the Certification Agreement is not evidence. Festa is without legal authority to police the
mark granted by lntertek to Spruce regarding either the omission of the "for outdoor use" label
or "ETL Listed." lntertek's state of record keeping is not the responsibility of anyone at Spruce.
The overwhelming evidence demonstrates that Spruce has run a tight ship and that upon
learning of these claims, Spruce affirmatively - and aggressively - sought to try to get access to
the testing data such as Water Spray test results. When, working with lntertek, a diligent search
failed to produce results, Spruce went further. In order to ensure that the mark issued to it was
in fact well founded, it submitted all of its fans - again - for retesting. As for the omission of the
"for outdoor use" label", again upon learning of this, it was corrected. It is hard to see how any
consumers were deceived or misled by this; further it is hard to see how Festa, as competitor,
would have been harmed by this omission. If anything, assuming that the reference to outdoor
use was only contained in the installation instructions and might be missed by an installer, this
would tend to put Spruce at a disadvantage.
The bottom line is that this all comes down to an attempt by Festa to police the mark
authorized by lntertek and within that an unavailing attempt to distinguish its case from BoardTech
Elec. Co. v. Eaton Elec. Holdings LLC, C.A. No. 17-cv-5028 (KBF),2017 U.S. Dist. LEXIS
180348, * 17-19 (S.D.N.Y. October 31, 2017) In Board-Tech, the court rejected a plaintiff's claim
that the defendant's use of a UL certification for light switches ran afoul of the Lanham Act
because the light switches at issue failed to meet UL standards - when the plaintiff, sua sponte
tested the products. The court noted that even if the products did not comply with the required
safety standards, it did not matter: UL authorized the mark. "[l]f defendants are authorized to
apply the mark, then the plaintiff is simply policing the mark." Id. at 17-18. Therefore, even if
Festa had proven that Spruce had failed to submit its products for testing, or had failed to apply
the necessary labelling per lntertek's requirements, it does not matter. lntertek is the party
charged with ensuring that Spruce complies with its obligations - be they of a "common law"
type obligation to resubmit new or revised products or be it under a Certification Agreement. If
Spruce had run afoul of its obligations thus rendering the mark a nullity, there is only one
arbiter: lntertek. The valiant efforts of Festa's counsel notwithstanding, Board Tech is
controlling and these claims are without merit.
Next, there is Festa's claim that Spruce's return volley of its own comparative catalog
violates the Lanham Act. The claims are by and large puffing. It should also be noted that the
buying audience consists of knowledgeable installers. As such, these installers are well able to
compare the data side by side and drawn their own conclusions. Festa has argued that there
are only two functions which should be measured and compared: suction and air flow. This is
not true. Other factors to consider would be noise, vibration, longevity and energy efficiency.
As with Festa's other claims, it should be borne in mind that the Lanham Act is intended to
protect consumers and protect fair play among and between competitors by forbidding false
and misleading claims. The only question is whether or not it is false to tout Spruce fans as
being superior overall. This is classic puffing, particularly since the data is there for installers to
do their own homework on which fans they prefer.
There is only one claim which is arguably non-puffery - in that it relates to a measurable
claim of performance: Spruce claims to be the "longest lasting" fan. Were Spruce to have
advertised something like "in our opinion" or "our customers tell us .... ", this would fall within a
sales pitch. However, the factual statement that Spruce fans are literally the "longest lasting" is
measurable yet there was no evidence that Spruce confirmed this. The lifespan of a fan can
fairly be said to be an inherent characteristic or quality.
There was no evidence introduced that the claim by Spruce was literally false. At best, it was
implicitly false. Therefore, Festa needs to have proven that there is consumer confusion. No
such evidence, direct or circumstantial, was introduced on this point.
Attorneys fees and costs.
Both Spruce and Festa seek attorneys fees and related costs. Given the above findings,
this request is only relevant as to the request by Spruce.
The Lanham Act permits an award for reasonable fees to the prevailing party in
exceptional cases. 15 U.S.C. Section 1117(a). In order to consider a case "exceptional", the
defendant's conduct must be "malicious, fraudulent, deliberate, or willful," or in the event a
party's claims are based on groundless arguments. Empire Today, LLC v. Nat'/ Floors Direct, Inc.,
788 F. Supp. 2d 7, 31-32 (D.Mass. 2011); as a further basis for attorneys fees, Spruce also
invokes G.L. c. 93A which is in essence provides for rights and remedies coterminous with the
Lanham Act. This statute also provides for the award of attorneys fees.
This case is indeed an exceptional one. Festa's conduct was unabating for three years:
no one could possibly look at the actual fan and how it appeared in the catalog and not see the
jarring difference. There is no suggestion that Mr. Festa tampered with the photograph of the
fan. But he quite clearly took advantage of whatever photographic anomaly caused the worn,
tawny-yellow colored fan - which was on view at the evidentiary hearing - to photograph a
horrific almost neon yellow color. It was not accurate, Festa knew it but he seized on it. And for
the last three years, he, his wife and even his daughter have all been part of a campaign not so
much focused on touting Festa's products. Rather, the campaign has been a steady drumbeat
of denigration, devoid of factual support. It continued with the litigation. It continued after
Festa was enjoined from certain advertising. It continued after Spruce created a new nonyellowing
housing and up the present. So for three years, Spruce has had to fight back allegations that its fans
are linked to cancer-causing radon gas exposure, they fail at an "astounding rate" and Spruce routinely "cuts corners."
At various points during the pend ency of this dispute, Spruce has simply sought Festa's
agreement to desist from its actions. Festa steadfastly refused. Festa suggested at the hearing
and again in its post hearing memorandum that the issue of Festa's advertising of Spruce's
yellowing fans is moot. Festa stated at the hearing that it would agree not to continue to do this
advertising. Festa's last ditch effort to stave off the risk of attorneys fees by this tactic is not
persuasive.
Festa's only concrete action in response to Spruce's claim has been to file a
counterclaim. This counterclaim has consisted of Mr. Festa deputizing himself to police the
marks authorized by lntertek.
Festa has every right to advertise its products and, where substantiated, compare its
products against its competitors in advertising. But the touchstone of the Lanham Act and G.l.
c. 93A is a concern for conduct which is unfair.
Further, the conduct which in large part supports the decision to grant equitable relief
also provides the basis upon which to find that this is an exceptional case. For that reason,
counsel for Spruce shall be permitted to submit a petition for attorneys fees and related court
and arbitration costs.
FINAL AWARD
Judgment shall enter in favor of Spruce against Festa Radon Enterprises, Inc. d/b/a Festa
Radon Technologies, Co. on all claims, reasonable attorneys fees, court and arbitration
costs.
Spruce shall have until May 3, 2018 to submit its fee application. Festa shall have until
May 17, 2018 to submit any opposition.
Festa, its successors, assigns, officers, directors, agents, employees, representatives,
attorneys and/or all persons or entities working for or on its behalf are hereby permanently
enjoined and restrained from:
1. Making any advertisement, representation or other statement (written, electronic or
verbal) to the public that does not accurately depict the color of Spruce's radon
mitigation fan products or otherwise uses photographs failing to accurately reflect the
products' true colors.
2. Making any advertisement, representation or other statement (written, electronic, or
verbal) to the public which directly or indirectly depicts, claims, states or implies that
Spruce's products are made from, by or with inferior quality components, materials or
manufacturing techniques or methods, unless such claims are support by valid testing
by an independent source or verifiable scientific data;
3. Making any advertisement, representation or other statement (written, electronic, or
verbal) to the public which directly or indirectly depicts, claims, states or implies that
Festa's products are manufactured with "solid" motor lead wires, unless a change is
made to the wires to render that statement true and accurate.
4. Making any advertisement, representation or other statement (written, electronic or
verbal) to the public which directly or indirectly depicstates or implies that
Spruce's radon fans have not been duly inspected, tested, certified or authorized by
lntertek to be marked with the "ETL Listed" label as compliant with UL t07 standards for
indoor and outdoor use, unless such claim is supported by a determination by lntertek;
and
5. Making any advertisement, representation or other statement (written, electronic, or
verbal) to the public which directly or indirectly depicts, claims, states or implies that
Spruce's radon fans do not meet applicable UL 507 standards unless determined by a
Nationally Recognized Testing Laboratory engaged by Spruce, or by a court of
competent jurisdiction.
Dated: April 19, 2018
Hon. Nancy Holtz
___________________________
PROOF OF SERVICE BY EMAIL & U.S. MAIL
Re: Spruce Environmental Technologies, Inc. / Festa Radon Technologies, Co.
Reference No. 1400016656
I, Gabrielle Thorp, not a party to the within action, hereby declare that on April 24, 2018, I served
the attached Final Award on the parties in the within action by Email and by depositing true copies thereof
enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at Boston,
MASSACHUSETTS, addressed as follows:
Michael J. Duffy Esq.
Joseph N. Magner Esq.
Bradley L. Croft Esq.
Ruberto, Israel & Weiner, PC
255 State St.
7th Floor
Boston, MA 02109
Phone: 617-742-4200
mjd@riw.com
JNM@riw.com
bcroft@riw.com
Parties Represented:
Spruce Environmental Technologies
Kristin Knuuttila Esq.
Knuuttila Law LLC
175 Federal St
Suite 1425
Boston, MA 02110
Phone: 857-300-0512
kmk@knuuttilalaw.com
Parties Represented:
Festa Sunn Enterprises, Inc.
Festa Sunn Enterprises, Inc. d/b/a Festa Rad
Joseph D. Steinfield Esq.
Prince Lobel Tye LLP
One International Place
Suite 3700
Boston, MA 02110
Phone:617-456-8000
jsteinfield@princelobel.com
Parties Represented:
Festa Sunn Enterprises, Inc.
Festa Sunn Enterprises, Inc. d/b/a Festa Rad
I declare under penalty of perjury the foregoing to be true and correct. Executed at Boston, MASSACHUSETTS on April 24, 2018.
Gabrielle Thorp
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