author: SUTTON, Circuit Judge.

text:
    MAXXIM REBUILD COMPANY, LLC, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration, Respondents.
    No. 16-3530
    United States Court of Appeals, Sixth Circuit.
    Argued: February 1, 2017
    Decided and Filed: February 13, 2017

      ARGUED: Ralph Henry Moore, II, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for Petitioner. Cheryl C. Blair-Kijewski, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent Secretary of Labor. ON BRIEF: Ralph Henry Moore, II, Patrick W. Dennison, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for Petitioner. Cheryl C. Blair-Kijewski, W. Christian Schumann, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent Secretary of Labor. Mark E. Heath, SPILMAN THOMAS & BATTLE, PLLC, Charleston, West Virginia, for Amicus Curiae.
    Before: BATCHELDER, SUTTON, and KETHLEDGE, Circuit Judges.
   OPINION

SUTTON, Circuit Judge.

At issue is whether Maxxim Rebuild Company, which operates a shop that makes and repairs mining equipment, is a “coal or other mine” subject to regulation by the Federal Mine Safety and Health Review Administration. 30 U.S.C. § 802(h). The Maxxim facility does not extract coal or any other mineral, and it does not prepare coal or any other mineral for use. It builds and repairs mining equipment at a site that is neither adjacent to nor part of a working mine. Because the definition of “coal or other mine” refers to locations, equipment and other things in, above, beneath, or appurtenant to active mines, the Maxxim facility is not a mine subject to the Administration’s jurisdiction. We reverse.

I.

Located in Sidney, Kentucky, the repair shop at issue makes and repairs mining equipment and machine parts. The shop consists of two work bays: one for welding, one for fabrication. Maxxim employs seven workers at the Sidney shop. Roughly 75% of the work at the shop is for equipment that Alpha Natural Resources (Maxxim’s parent company) uses to extract or prepare coal at several different mines. The rest of the work is for other mining companies and for repair shops that might sell the equipment to mining or non-mining companies. Sidney Coal, another Alpha subsidiary, owned the property and had an office in the upper floor of the Maxxim shop.

Maxxim operates six other shops and an equipment depot in Kentucky and West Virginia. Until this case, the Mine Safety and Health Administration had asserted jurisdiction over just one other Maxxim shop, an underground repair shop adjacent to a coal preparation plant. The Occupational Safety and Health Administration, which oversees the safety of most workplaces in the country, regulates the other Maxxim shops. See 29 U.S.C. § 651. It previously supervised the Sidney shop employees when they did the same work in a smaller facility in Matewan, West Virginia.

The Matewan facility, like the Sidney shop, used to be connected to an active coal mine. After the Matewan coal mine stopped extracting coal, the Mine Safety and Health Administration stopped inspecting the facility. Maxxim thought the same would happen for the sealed and abandoned mine near the Sidney shop.

The Mine Safety and Health Administration kept inspecting the Sidney shop anyway. Maxxim moved into the Sidney facility in January 2012, added the second work bay, and updated the facility. An Administration inspector visited the Sidney shop in January 2018, and issued three citations. One stemmed from the absence of a written hazardous chemicals communication plan, which the Administration requires for mines. See 30 C.F.R. §§ 47.31-.32. The second arose from a dirty bathroom. See id. § 71.402(a). The third was due to an accumulation of oil, fuel, and dust on a Caterpillar 988 loader. See id. § 77.1104. The inspector returned in June 2013, and issued two more citations in connection with a heater and a welder.

Maxxim challenged the Mine Safety and Health Administration’s power to issue the citations. An administrative law judge ruled that the Sidney shop was “a coal or other mine.” See JA 16. So did the Commission, an independent agency responsible for reviewing the Administration’s citations. See 30 U.S.C. § 823. Maxxim petitioned this Court for review of the Commission’s decision. See id. § 816(a)(1).

II.

A few ground rules are in order. In reviewing decisions by the Federal Mine Safety and Health Review Commission, we defer to the Commission’s fact findings if backed by “substantial evidence.” Id.; see Pendley v. Fed. Mine Safety & Health Rev. Comm’n, 601 F.3d 417, 422-23 (6th Cir. 2010). And we give Chev ron deference to the Secretary of Labor’s interpretation of the Mine Act when, as happened here, the Secretary agrees with the Commission’s interpretation of the Act. Id. at 423 & n.2. (The Secretary of Labor oversees the Mine Safety and Health Administration and the Occupational Safety and Health Administration.) As conventionally understood, Chevron asks two questions: Does the relevant statute answer the question at hand? If not, is the Secretary’s interpretation of the statute a reasonable one? Chevron, U.S.A., Inc. v. Nat. Res. Def. Counc., Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Even though today’s dispute concerns the jurisdiction of the Commission, the same Chevron principles apply. See City of Arlington v. FCC, — U.S. -, 133 S.Ct. 1863, 1868, 185 L.Ed.2d 941 (2013).

In the Secretary’s view, the Mine Safety and Health Administration has exclusive jurisdiction over any facility that makes or repairs “equipment that is used in coal extraction and coal preparation activities,” even a facility not a part of or adjacent to a working mine. Respondents’ Br. 20. In supporting this position, the Secretary asks us to focus on these words in one of the Mine Act’s jurisdictional provisions: that its authority extends to “facilities” and “equipment ... used in, or to be used in ... the work of preparing coal or other minerals.” 30 U.S.C. § 802(h)(1).

But context and perspective are everything. In pulling back the lens, we see several indications that the power of the Mine Safety and Health Administration extends only to such facilities and equipment if they are in or adjacent to — in essence part of — a working mine.

Start with what § 802(h)(1) defines: a “coal or other mine.” The term is locational. And the location concerns mines. Equipment by itself tells us nothing about where it is. And a facility by itself does not say anything about whether it is connected to a mine. As the title of the Act (the Federal Mine Safety and Health Act) and the title of the pertinent agency (the Mine Safety and Health Administration) suggest, the definition of “coal or other mine” relates to a place — land and things in or connected to a mine.

Now pull back the lens to the full definition from which the Secretary extracts these words. Even if we italicize the chosen words, they take on a different hue in context. Section 802(h)(1)(C) defines “coal or other mine” as “lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits ..., or used in, or to be used in ... the work of preparing coal or other minerals.” The definition is broad, sure enough. It’s as if the author went to a mine and wrote down everything he saw in, around, under, above, and next to the mine. Even then, the definition still extends only to everything that one would see in or around a working mine. It does not cover mining “equipment” or for that matter mining “machines, tools, or other property” wherever they may be found or made.

Words, like people, “are known by their companions.” Gutierrez v. Ada, 528 U.S. 250, 255, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000); see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 31 (2012). The definition of “coal or other mine” has two linking concepts. One relates to mine-related places: “lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, [and] facilities ..., used in or to be used in ... extracting ... minerals.” The other relates to mine-related things that serve a mine-related function in those places: “equipment, machines, tools, or other property ... used in or to be used in” the same process: “extracting ... minerals.” Both concepts are joined together by their connection to a working mine— places and things in or around the mine. Just as these words do not cover “lands” disconnected from an active mine (even lands that might one day be purchased “to be used” as a mine), they do not cover equipment that is not part of a working mine (even equipment that might one day be sold to someone “to be used” in a mine). Whether it’s a place or functional thing, it must be connected to a working mine.

Now pull back the lens one frame further. Section 802(h)(1) provides three pertinent jurisdictional definitions, not just one — a perspective that casts more light on § 802(h)(1)(C):

(h) (1) “coal or other mine” means (A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities. In making a determination of.what constitutes mineral milling for purposes of this chapter, the Secretary shall give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment.

Note that the other definitions in the Mine Act portray a mine as a place. One says that it is “an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground.” § 802(h)(1)(A). The other says “private ways and roads appurtenant to such area.” § 802(h)(1)(B). Location, location, location: All three definitions are place connected and place driven.

Now pull back the lens to put the definition of “coal or other mine” in the context of adjacent definitions.

(d) “operator” means any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine;
(e) “agent” means any person charged with responsibility for the operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other mine; ...
(g) “miner” means any individual working in a coal or other mine;
(h) (1) “coal or other mine” means (A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities. In making a determination of what constitutes mineral milling for purposes of this chapter, the Secretary shall give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment;
(2) For purposes of subchapters II, III, and IV, “coal mine” means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used- in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities;
(i) “work of preparing the coal” means the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.

§ 802.

Witness first the definitions of “operator” and “agent” and “miner.” All three are defined in relation to working mines. And this repair shop was not attached to or adjacent to a working mine. Then see the pertinent definition of “coal mine” in § 802(h)(2), which applies to other federal programs such as the Black Lung Benefits Act. Here too the definition has a locational focus. It limits the agency’s authority to land and property connected to a mine, not to land, facilities, or equipment that might someday be used in connection with a coal mine. Taken together, each of these surrounding provisions teaches a lesson taught many times before. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme [ ] because the same terminology is used elsewhere in a context that makes its meaning clear or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Inc., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (quotation omitted).

Now pull back the lens to account for other provisions in this title. Congress, it turns out, separately gave the Mine Safety and Health Administration authority to regulate equipment sold to mines, see 30 U.S.C. § 820(h), the most natural home for regulating mining equipment unconnected to a working mine. But the provision does not apply in this setting. And the agency indeed did not cite Maxxim for equipment violations. It cited the repair shop for alleged problems with bathrooms, welders, loaders, heaters, and safety plans. Not one of those things is equipment sold to Alpha.

What the agency complained about, it turns out further, is covered by a related agency, also under the umbrella of the Secretary of Labor: the Occupational Safety and Health Administration. See 29 U.S.C. §§ 651, 653. The point of the Occupational Safety and Health Administration is to regulate these kinds of safety and health matters, as its name suggests. Yet if we uphold the Secretary’s and Commission’s position, that would give the Mine Safety and Health Administration exclusive jurisdiction over the entirety of the Maxxim facility. See Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 936 (6th Cir. 1997); Otis Elevator Co. v. Sec’y of Labor, 921 F.2d 1285, 1287 (D.C. Cir. 1990) (Thomas, J.). This is not a case in which the regulated entity seeks to hide from any regulation. It just thinks, quite reasonably, that the Secretary’s authority applies to it through the Occupational Safety and Health Administration, not the Mine Safety and Health Administration.

We are not alone in distinguishing manufacturers and repairers of mining equipment from the mines that use that equipment. A utility company that sells, electricity and visits mines monthly to read and update its meters is not a mine operator. Old Dominion Power Co. v. Donovan, 772 F.2d 92, 93, 96 (4th Cir. 1985). A mining engineer who works in an office and at other locations where no mineral extraction takes place is not a miner. Paul v. Fed. Mine Safety & Rev. Comm’n, 812 F.2d 717, 717-18, 720 (D.C. Cir. 1987). And a manufacturer that sells and delivers steel products to a mine is not a mine operator. N. Ill. Steel Supply Co. v. Sec’y of Labor, 294 F.3d 844, 845, 849 (7th Cir. 2002).

The Alpha mines are “one-step removed from” the Maxxim repair shop, and it makes no difference that Alpha may one day use the shop’s fabricated or repaired equipment “to perform work directly on the extracted coal.” Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor v. Ziegler Coal Co., 853 F.2d 529, 536 (7th Cir. 1988). In point of fact, Ziegler Coal Co. dealt with a facility similar to the one in this ease — a repair shop “located approximately one and one-half miles away from the nearest Ziegler coal mine” — and the Seventh Circuit nonetheless ruled that the repair shop was not a mine. Id. at 531, 536-37.

When government lawyers seek Chevron deference, the question is not whether they can identify an ambiguity, any ambiguity, in the words of a statute. The question is whether they can identify a competing reasonable interpretation of the statute. See Henry Ford Health Sys. v. Dep’t of Health & Human Servs., 654 F.3d 660, 664 (6th Cir. 2011). But the Secretary’s competing interpretation of § 802(h)(1)(C) is not a reasonable one— and not just because it overlooks all of the textual and precedential clues identified above. The Secretary’s interpretation also has no stopping point.

Consider how the Secretary’s position would have applied to the late, but once formidable, Jeffrey Mining Manufacturing Company. Founded in 1876, it was once the largest maker of underground coal mining equipment in the four States of the Sixth Circuit, and indeed was once the largest such manufacturer in the world. Robert H. Jeffrey, Address at the Columbus Historical Society: Jeffrey’s Manufacturing History in Columbus 2, 4, 10, 12 (Sept. 26, 2002), https://www. jeffreyeo.com/docs/Short_History.pdf. The manufacturing plant and repair shops were based in Columbus, Ohio, and were not remotely near any working mine. Yet the Secretary’s position — that any “facility” that makes “equipment” that is “used” or “to be used” in a coal mine is a coal mine — would have transformed that plant into a coal mine. Congress deserves more credit than that. The statute is “tailored to the dangers that arise from handling coal” and other minerals, not the generic dangers of making mining equipment. Power Fuels, LLC v. Fed. Mine Safety & Health Rev. Comm’n, 777 F.3d 214, 217 (4th Cir. 2015).

Even the Mine Safety and Health Administration seems to doubt its assumption of authority. In practice, it has not shown the courage of today’s convictions. It has not asserted jurisdiction over five other Maxxim shops or the Maxxim equipment depot that sells loaders and other machines to mining companies. Like the Sidney shop, those shops are not locations where coal is extracted or prepared. The Administration did there what it should have done here: leave any such regulation to the Occupational Safety and Health Administration.

In advancing a contrary position, the Secretary leans heavily on another decision of the Commission: Secretary of Labor, Mine Safety & Health Administration v. Jim Walter Resources, Inc., 22 F.M.S.H.R.C. 21 (2000). Jim Walter held that an off-site supply shop, which stored hard hats, safety glasses, nails, conveyor belts, belt structures, oil filters, and other supplies exclusively for thé use of the shop’s parent company) was a “coal or other mine.” Id. at 22, 25. We disagree. For the same reasons we reject the Commission’s decision here, we reject Jim Walters as well. We of course are not bound by an incorrect Commission decision. Once the agency tries to extend its jurisdiction to off-site shops and off-site equipment, the language of the statute provides no stopping point, leaving the scope of its jurisdiction to the whims of the Secretary. Far better, it seems to us, to stand by the text and context of § 802(h)(1), which limit the agency’s jurisdiction to locations and equipment that are part of or adjacent to extraction, milling, and preparation sites.

Alpha, it is true, needs facilities like Maxxim’s to repair equipment and manufacture new parts. But that reality does not transform the Sidney shop into a mine any more than it could have transformed the Jeffrey Company plant into a mine in the past or a Caterpillar plant into a mine in the future. Our court rejected a similar argument in the context of a road and bridge constructed by a mining company. Even though the road and bridge were the “only means of getting the minerals from the surface mine to the loadout facility” and even though they were used in the process, that did not make them mines under § 802(h)(1)(C). Bush & Burchett, 117 F.3d at 939. A similar conclusion applies here.

For these reasons, we grant the petition for review and reverse the Commission’s decision to exercise jurisdiction over the Maxxim facility.


source: Caselaw Access Project

author: ALICE M. BATCHELDER, Circuit Judge.

license: Public Domain

text:
    Amber JONES; Deanna Lack, Plaintiffs-Appellants, v. Kent COLEMAN; Henry Fincher; Patricia Heim; Tom Lawless; Norma Lester; Tom Morton, in their official capacities as members of the Tennessee Registry of Election Finance, Defendants-Appellees.
    No. 16-5908
    United States Court of Appeals, Sixth Circuit.
    Argued: February 1, 2017
    Decided and Filed: February 15, 2017

      ARGUED: Michael J. Wall, BRAN-STETTER, STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellants. Erin F. Merrick, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. ON BRIEF: Michael J. Wall, James G. Stranch, III, Anthony A. Orlandi; BRAN-STETTER, STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellants. Janet M. Kleinfelter, Lyndsay F. Sanders, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
    Before: BATCHELDER, SUTTON, and KETHLEDGE, Circuit Judges.
   OPINION

ALICE M. BATCHELDER, Circuit Judge.

This case calls upon us to decide whether the district court properly abstained from exercising its jurisdiction in a case alleging that Tennessee’s Campaign Financial Disclosure Act, Tenn. Code Ann. §§ 2-10-101 et seq., unconstitutionally burdens the rights of free speech and association. We find that the district court’s abstention was improper in this case, especially in light of the alleged chilling effects of the Act. Accordingly, we reverse and remand for further proceedings.

I. Background

Appellants Amber Jones and Deanna Lack are parents of school-age children in White County, Tennessee. In the fall of 2015, Jones and Lack, together with several other parents, formed an unincorporated group called the Association for Accurate Standards in Education (“AASE”). AASE opposed another group of parents’ advocating for removal of a social studies textbook that includes discussion of Islam from the public schools in White County. Approximately eight persons, all part-time volunteers, comprise AASE. It does not have a separate bank account, and it does not keep regular records of money collected or spent. There are no formal membership requirements, and there are no regular in-person meetings. Jones serves as the president of the group, and Lack serves as the secretary; there is no treasurer. Approximately five or six people have donated to AASE since its formation, but no individual donation has exceeded $200; indeed total donations to AASE have yet to reach $500.

Several seats on the White County Board of Education were up for election in August 2016, and the parents comprising AASE wanted the group to support and oppose candidates for at least two seats on the Board of Education. Appellants believed their message would be amplified if it were delivered through AASE. At the time, Appellants did not want AASE to make direct campaign contributions to candidates, but they intended for AASE to spend less than $250 on independent expenditures, including yard signs, stickers, and brochures.

In October 2015, Appellants met with members of Williamson Strong, an unincorporated group of parents that disseminates information and facilitates discussion about school board candidates and election issues in nearby Williamson County, Tennessee. It was then that Appellants learned that the Tennessee Registry of Election Finance (“the Registry”) had fined Williamson Strong $5,000 for failing to certify a treasurer or file financial disclosure statements. “In finding that [Williamson Strong] is a political campaign committee[] subject to these requirements, the Registry relied on Tenn. Code Ann. § 2-10-102(12)(A), which defines a political campaign committee as, among other things,: ‘A combination of two (2) or more individuals ... to support or oppose any candidate for public office or measure ....’” Williamson Strong v. Tenn. Bureau of Ethics and Campaign Fin., No. 3:15-cv-0739, 2015 WL 5794561, at *1 (M.D. Tenn. Oct. 2, 2015) (staying the case because of an ongoing state administrative hearing). Appellants viewed AASE as a group comparable to Williamson Strong and became concerned that the Registry could also fine AASE for engaging in the aforementioned political activities without first registering as a political campaign committee and complying with applicable rules and regulations.

Appellants sued the officials of the Registry — Appellees Kent Coleman, Henry Fincher, Patricia Heim, Tom Lawless, Norma Lester, and Tom Morton — in their official capacities under 42 U.S.C. § 1983, claiming that the Act violates their First Amendment rights of free speech and association and their Fourteenth Amendment rights of equal protection and due process. Appellants sought both declaratory and injunctive relief. After full briefing and oral argument, the district court stayed the case pending the outcome of the state administrative proceedings in the Williamson Strong case, and opining as well that the Act’s application represented an unclear question of state law that, once interpreted by state courts, could eliminate the potential First and Fourteenth Amendment violations. Appellants filed a motion to alter the judgment, which the district court denied. Appellants timely appealed both orders, arguing that the district court’s decision to abstain was error and that the district court should have granted their motion for a preliminary injunction.

II. Discussion

A. Standard of Review

We have appellate jurisdiction under 28 U.S.C. § 1291 to consider the district court’s order because orders of abstention are considered final judgments. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 9, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). We review de novo a district court’s decision to abstain from exercising jurisdiction that has otherwise been properly invoked. Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002).

B. Standing

The Registry argues that Appellants lack standing to bring either an as-applied or a facial (i.e., “overbreadth”) challenge, and that the district court therefore did not have jurisdiction to hear the case. We disagree. First, Appellants can bring this claim on behalf of AASE. The Supreme Court has held that in “over-breadth” challenges, “[ljitigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); Speet v. Schuette, 726 F.3d 867, 872-74 (6th Cir. 2013). Second, regarding as-applied challenges, the Supreme Court has repeatedly held that individuals or groups need not wait to be prosecuted for the exercise of First Amendment rights before they can bring a lawsuit, provided there is a “claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); see also Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court, 769 F.3d 447, 451-52 (6th Cir. 2014). Here, Appellants have done more than merely allege a potential chilling effect of the law. They have not only refrained from making independent political expenditures through AASE, but they have also raised the specter of fines and registration requirements, citing the ongoing Williamson Strong case, in which the Registry stipulated that Williamson Strong is an unincorporated association for the purpose of the Tennessee Financial Disclosure Act.

Based on the allegations in the Complaint and the aforementioned stipulation in Williamson Strong, we are satisfied that Appellants meet both the constitutional requirements for standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and the somewhat relaxed prudential standing requirements for First Amendment challenges. See Am. Booksellers, 484 U.S. at 392, 108 S.Ct. 636; Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007).

C. Pullman Abstention

“The doctrine of abstention, under which a [district [c]ourt may decline - to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a [district [c]ourt to adjudicate a controversy properly before it.” Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959); see also Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (describing the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them”). One exception to this general rule is based on the avoidance of “needless friction with state policies,” and “a premature constitutional adjudication.” R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Pullman abstention, as this exception has come to be called, does not “involve the abdication of federal jurisdiction, but only the postponement of its exercise,” Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959), which differentiates it from other forms of federal judicial abstention. E.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

In Pullman, the Supreme Court ' “held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). Thus the primary scenario for a district court’s application of Pullman abstention is one in which the state-law question is an unsettled issue best decided by state courts. Harris Cty. Comm’rs Court v. Moore, 420 U.S. 77, 83-84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975). In Moore, the Supreme Court illustrated some considerations for determining when a district court should abstain under Pullman:

Where there is an action pending in state court that will likely resolve the state-law questions underlying the federal claim, we have regularly ordered abstention. Similarly, when the state-law questions have concerned matters peculiarly within the province of the local courts, we have inclined toward abstention. On the other hand, where the litigation has already been long delayed, or where it has seemed unlikely that resolution of the state-law question would significantly affect the federal claim, the Court has held that abstention should not be required.

Id. (internal citations omitted).

The application of Pullman abstention results in significant financial and time burdens on the parties and acts almost as an exhaustion requirement, requiring the federal court plaintiff to seek an authoritative state court construction of the state-law issue before a federal court will entertain her claim. See Arizonans for Official English v. Arizona, 520 U.S. 43, 76, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal court.”). Since the Supreme Court created the Pullman doctrine, most states have adopted certification procedures, which permit the state’s highest court to consider novel questions of state law that have been “certified” by a federal court. See id. (citations omitted). The Supreme Court has indicated that a district court’s certification of a novel issue of state law may be preferable to its abstaining under Pullman. “Certification today covers territory once dominated by a deferral device called ‘Pullman abstention’.... Certification procedure, in contrast, allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing the delay, cutting the cost, and increasing the assurance of an authoritative response.” Id. at 75-76, 117 S.Ct. 1055.

Perhaps because of the time, energy, and resources involved in resolving a case after a federal district court invokes Pullman abstention, the Supreme Court has “been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment.” City of Houston, Tex. v. Hill, 482 U.S. 451, 467, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (collecting cases). This is especially true in cases challenging overbroad laws that have no limiting construction. See Dombrowski v. Pfister, 380 U.S. 479, 489-90, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (“[A]bstention ... is inappropriate for cases [in which] ... statutes are justifiably attacked on their face as abridging free expression.... ”). “In such case[s] to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.” Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

“In cases involving a facial challenge to a statute,” the threshold question is “whether the statute is ‘fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.’ ” Hill, 482 U.S. at 468, 107 S.Ct. 2502 (quoting Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965)) (citing Midkiff, 467 U.S. at 236, 104 S.Ct. 2321). If the statute has no limiting construction, then abstention is improper, even if the statute has never been interpreted by a state tribunal. Harman, 380 U.S. at 535, 85 S.Ct. 1177; see also Hill, 482 U.S. at 469, 107 S.Ct. 2502.

D. Application

The Tennessee Campaign Financial Disclosure Act regulates, among other things, the disclosure of financial contributions to political campaign committees. Tenn. Code Ann. §§ 2-10-10seq. The Act is administered by the Registry of Election Finance, an independent six-member entity. Tenn. Code Ann. §§ 2-10-201, et seq. The Act’s regulations apply to “political campaign committees,” which it defines as:

(A) A combination of two (2) or more individuals, including any political party governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure, but does not include a voter registration program;
(B) Any corporation or any other organization making expenditures, except as provided in subdivision (4), to support or oppose a measure; or
(C) Any committee, club, corporation, association, or other group of persons which receives contributions or makes expenditures to support or oppose any candidate for public office or measure during a calendar quarter in an aggregate amount exceeding two hundred fifty dollars ($250).

Tenn. Code Ann. § 2-10-102(12) (emphasis added).

It is § 2-10-102(12)(A) that Appellants fear impermissibly burdens their First Amendment rights of free speech and association. They rely on cases such as F.E.C. v. Mass. Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986), and Citizens United v. F.E.C., 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), which have, over time, gradually increased the freedom of corporate and non-profit groups to engage in political speech. But because we decline to rule on the merits of Appellants’ argument, we need not discuss the potential constitutional weaknesses of the Act further. Rather, the sole issue before us is whether the district court correctly abstained from hearing Appellants’ constitutional challenge to the Act.

The district court determined that abstention was warranted while Williamson Strong was being reviewed in state administrative proceedings. According to the district court, the central issue in Williamson Strong is whether the Williamson Strong group is classified as a political campaign committee under § 2-10-102(12)(A). Further, the district court determined that abstention was appropriate because “[t]he Registry has not had the opportunity to review its interpretation of the statute, and the state courts have not had a chance to interpret it.” Thus, the district court reasoned that, eventually, the final resolution of the Williamson Strong case will provide clear answers regarding the application of § 2-10-102(12)(A) to groups like AASE, perhaps avoiding a First Amendment problem.

But the district court’s reasoning, like a house built on sand, cannot stand. The district court’s reliance on Williamson Strong to clarify the scope of § 2-10-102(12)(A) is a fatal flaw in its analysis because this issue is not before the administrative law judge in the Williamson Strong proceedings. Indeed, the Registry and Williamson Strong (the group) “stipulate[d] that Williamson Strong is an unincorporated association and that an unincorporated association constitutes a ‘combination of two (2) or more individuals’ for purposes of Tennessee Code Annotated § 2-10-102(12)(A).” The dispute in Williamson Strong concerns whether the Williamson Strong group made “expenditures, to support or oppose any candidate for public office or measure,” not including a “voter registration program,” for purposes of Tennessee Code Annotated § 2-10-102(12)(A). Williamson Strong and the Registry also dispute the Registry’s jurisdiction and its legal authority to impose civil penalties. Because the parties do not dispute the threshold issue of whether Williamson Strong is a political campaign committee under Tennessee law, it is far from guaranteed that the resolution of Williamson Strong will correspondingly resolve any unclear issues of state law that might eliminate the federal constitutional questions in the present case.

Moreover, we do not find § 2-10-102(12)(A) to be so ambiguous as to necessitate abstention. In order to invoke Pullman abstention, a district court must ask whether the state statute is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.... ” Harman, 380 U.S. at 535, 85 S.Ct. 1177 (1965) (citing Baggett v. Bullitt, 377 U.S. 360, 375-79, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964)). In Tennessee, a “ ‘[political campaign committee’ means ... [a] combination of two (2) or more individuals, ... to support or oppose any candidate for public office or measure ...” Tenn. Code Ann. § 2-10-102(12)(A) (emphasis added). This language has the potential to include married couples who donate to any campaign or make any expenditure related to a political measure. Indeed, Tennessee’s layman’s manual, the Citizens’ Guide to Campaign Finance, states, “If you and other individuals act together as a group to conduct activities to influence a [sic] eleetion(s), the group may be a ‘political campaign committee.’ ” Tenn. Bureau of Ethics and Campaign Finance, Citizens’ Guide to Campaign Finance (last updated Jan. 2015), https://www.tn.gov/assets/entities/ tref/attachments/CitizensGuide.pdf. Whether Tennessee would enforce such a broad statute is not part of the Pullman-abstention analysis. The district court did not Analyze whether § 2-10-102(12)(A) might be subject to an interpretation that does not violate the First Amendment; rather, it adopted a wait-and-see approach relying on a different case that is centered around a different issue. This, we conclude, was error. We imagine that the district court would have been hard-pressed to find an interpretation of this statute that satisfies the First Amendment, but because the district court passed on the opportunity so to do, we do not rule on the issue.

Furthermore, the Supreme Court has called on federal courts to exercise their jurisdiction in cases in which the statute is not ambiguous, even if the statute has never been interpreted by a state court. See Baggett, 377 U.S. at 375, 84 S.Ct. 1316; see also Harman, 380 U.S. at 535, 85 S.Ct. 1177; Hill, 482 U.S. at 469, 107 S.Ct. 2502. Here, contrary to the district court’s statement, the Tennessee Supreme Court has expounded on the predecessor to § 2-10-102(12). In Bemis Pentecostal Church v. State, 731 S.W.2d 897 (Tenn. 1987), thirteen churches brought a declaratory judgment action, alleging that the Tennessee Campaign Financial Disclosure Act of 1980 violated their First and Fourteenth Amendment rights. The churches had organized a campaign to oppose a referendum, the adoption of which would have permitted on-premises liquor consumption in Jackson, Tennessee. Id. at 899. “They purchased radio, television, and newspaper advertisements expressly opposing the adoption of the local liquor option.” Id. Some churches donated to other efforts also opposing the referendum. Id. The thirteen churches spent a total of $5,150 in their efforts to defeat the referendum, but “[n]o church filed a disclosure statement as required by the terms of the Act.” Id. In holding that the Act applied to the churches, the Tennessee Supreme Court stated:

Moreover, T.C.A. § 2-10-102(10) [the predecessor to § 2-10-102(12) ] was drafted to encompass any combination of two or more persons within the meaning of a ‘political campaign committee’ to insure that every group participating in a particular election to attempt to affect the voting outcome could not avoid the disclosure requirements. The General Assembly clearly intended that referenda campaigns would be included in the disclosure of the Act.
No significant dispute exists in this case that, as written, the Act applies to the Plaintiffs. Under T.C.A. § 2-10-102(10) [now subsection (12)], these churches are combinations of two or more individuals making expenditures to support or oppose a measure, § 2-10-102(10)(A), or are organizations making expenditures to support or oppose a measure, § 2-10-102(10)(B), or are associations or other groups of persons that receive contributions or make expenditures to support or oppose any measure during a calendar quarter in an aggregate amount exceeding [$250,] 2-10-102(10)(C).

Id. at 902 (emphasis added).

But the Tennessee Supreme Court also acknowledged that the Act does not impose burdens on “clubs, committees, associations, or other groups not otherwise covered by the Act,” which permits such groups “to receive or spend the aggregate of $250 per calendar quarter to attempt to influence an election outcome without being defined as a political campaign committee.” Id. at 905; Tenn. Code Ann. § 2-10-102(12)(C). We find peculiar such an exception to the otherwise broad rule of § 2-10-102(12)(A) — are not clubs, committees, associations, or other groups by nature “combinations of two or more individuals”? — but this subsection neither cures the potential constitutional infirmity of § 2-10-102(12)(A), nor is at issue here.

Although we decline to reach the merits of the parties’ arguments today, we echo the Supreme Court’s strong aversion to the invocation of Pullman abstention when a state statute is being challenged on First Amendment grounds and when that statute is not obviously susceptible to a limiting construction. See Hill, 482 U.S. at 467-71, 107 S.Ct. 2502. We reiterate that abstention is “the exception and not the rule,” id. at 467, 107 S.Ct. 2502 (citing Colo. River, 424 U.S. at 813, 96 S.Ct. 1236), and that district courts should engage in a thorough analysis of the state-law issue before abstaining under Pullman. Additionally, when a state has made certification available, as Tennessee has done, we urge district courts to carefully consider this option rather than simply abstaining. The Supreme Court has stated a clear preference for certification over Pullman abstention, recognizing that “certification of novel or unsettled questions of state law for authoritative answers by a State’s highest court ... may save time, energy, and resources and help build a cooperative judicial federalism.” Arizonans for Official English, 520 U.S. at 77, 117 S.Ct. 1055 (internal quotation marks and alterations omitted). Especially in cases alleging violations of First Amendment rights, district courts should carefully consider certifying an unclear question of state law before abstaining under Pullman.

Separate and apart from the free-speech problems with applying Pullman abstention here, when the plaintiff has requested preliminary injunctive relief, a district court ought ordinarily to grant it when it abstains. “As we see the matter ... the abstention order did in effect deny preliminary injunctive relief and effectively shut the federal courthouse door upon plaintiffs in their search for timely vindication of their federal constitutional claims.” Daniel v. Waters, 515 F.2d 485, 492 (6th Cir. 1975).

III. Conclusion

For the foregoing reasons, we reverse the district court’s order staying the case, and we remand for further proceedings consistent with this opinion.

      . Tennessee campaign finance law uses the term "political campaign committee” for what is commonly known as a “political action committee,” or "PAC.”

      . If AASE is considered a political campaign committee under Tennessee law, it would have to, among other things: (I) pay an annual registration fee of $100, Tenn. Code Ann. § 2-10-121; (2) appoint a political campaign treasurer and certify her name and address to the Registry and to the county election commission, Tenn. Code Ann. §§ 2 — 10—105(e)(1) and 2-10-105(e)(2); (3) maintain a separate campaign bank account, Tenn. Comp. R. and Regs. 0530-1-1-.01; (4) file detailed campaign financial disclosure statements at least quarterly, Tenn. Code Ann. §§ 2-10-102, 2-10-105, 2-10-107; and (5) keep all financial records for at least two years after the date of election to which the records refer, Tenn. Code Ann. § 2 — 10—105(f). See generally Tenn. Bureau of Ethics and Campaign Fin., Campaign Finance Guidelines for PACs, https:// www.tn.gov/assets/entities/trefiattachments/ CandidateCFDBooklet8xl 1 .pdf.

      . Hereinafter, “Williamson Strong" refers to the ongoing state administrative proceedings, not the federal district court case.

      . Appellants stated in their Complaint that AASE had planned to spend less than $250 on independent expenditures for the 2016 White County school board election.

      . See Tenn. Supreme Court R. 23 § 1 ("The Supreme Court may, at its discretion, answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee, or a United States Bankruptcy Court in Tennessee. This rule may be invoked when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of the United States.”).


author: McKEAGUE, Circuit Judge. KETHLEDGE, Circuit Judge, GRIFFIN, Circuit Judge,

text:
    The BABCOCK & WILCOX COMPANY, Plaintiff-Appellant, v. CORMETECH, INC., Defendant-Appellee.
    No. 16-3305
    United States Court of Appeals, Sixth Circuit.
    Argued: December 8, 2016
    Decided and Filed: February 15, 2017

      ARGUED: Ronald S. Kopp, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellants. Bradley J. Barmen, LEWIS BRISBOIS BISGAARD & SMITH, LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Ronald S. Kopp, Jessica A. Lopez, ROET-ZEL & ANDRESS, LPA, Akron, Ohio, for Appellants. Brendan M. Richard, LEWIS BRISBOIS BISGAARD & SMITH, LLP, Cleveland, Ohio, for Appellee.
    Before: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.
   McKEAGUE, J., delivered the opinion in which KETHLEDGE, J., joined in part and in the result, and GRIFFIN, J., joined in part. KETHLEDGE, J. (pp. 764-65), delivered a separate opinion concurring in part and in the judgment. GRIFFIN, J. (pp. 765-67), delivered a separate opinion concurring in part and dissenting in part.

OPINION

McKEAGUE, Circuit Judge.

After completion of discovery and dis-positive motion briefing, the district court issued an opinion explaining why defendant was entitled to summary judgment on both of plaintiffs contract claims. As to the first claim, for breach of performance warranty in relation to the sale of a power plant emissions-control catalyst, the court sustained defendant seller’s statute of limitations defense, holding that plaintiff filed its claim at least ten months after the limitations period had expired. As to the second claim, for enforcement of contractual indemnity, the court held there was insufficient evidence to support a reasonable jury finding that plaintiffs losses resulted from a “defect” in the catalyst or “omission” in defendant seller’s performance. On appeal, plaintiff contends the court erred by failing to view the record in the light most favorable to the nonmovant. We agree. For the reasons explained below, we vacate the district court’s ruling and remand for further proceedings.

I. BACKGROUND

Plaintiff Babcock & Wilcox Company (“B&W”) is a Delaware corporation having its principal place of business in Ohio. B&W is in the business of designing, manufacturing, and constructing power generation facilities and emissions control equipment and services for power companies such as Kansas City Power & Light Company (“KCP&L”). In December 2005, B&W entered into a contract to design and construct a Selective Catalyst Reduction (“SCR”) system to control emissions at one of KCP&L’s coal-burning power stations in La Cygne, Kansas. B&W issued a purchase order to defendant Cormetech, Inc. to obtain catalyst modules to be used in the SCR. Cormetech is a Delaware corporation with its principal place of business in North Carolina. Cormetech guaranteed that the catalyst it supplied would perform under the specified conditions for 24,000 operating hours before needing replacement.

KCP&L began operating the SCR at the La Cygne plant in April 2007. In June 2007, B&W conducted an initial performance test, after approximately 1200-1500 hours of operation. The results revealed that the rate of “ammonia slip” was higher than expected, meaning that more ammonia was being emitted from the SCR than expected, albeit still within the guaranteed limits. This finding indicated that the catalyst could be subject to accelerated deactivation. B&W advised Cormetech by letter dated August 21, 2007, just four months after commencement of operation, that initial performance test results gave “reason to believe that the catalyst will not reach the end of life guarantees.” R. 114-13, Rohner Letter 8/21/07, Page ID 4864. B&W invited Cormetech to cooperate with B&W “to determine the reasons for this advanced deactivation.” Id. Cormetech responded immediately, observed that higher levels of “ammonia slip” were “measured (and corrected),” and confirmed that its investigation of the possible cause was continuing. R. 114-8, Schirmer Letter 8/31/07, Page ID 4821.

Cormetech continued testing the catalyst and next communicated its preliminary findings to B&W in October 2007, after 3000 hours of operation. Cormetech’s report indicated that the catalyst was continuing to operate “above the performance threshold, but below the design deactivation curve.” R. 114-9, Cormetech Letter 10/8/07, Page ID 4825-27. The measured loss of catalytic potential reportedly correlated with elevated concentrations of calcium oxide and phosphorous pentoxide found on the surface of some catalyst elements. The letter recommended continued monitoring and testing of catalyst performance and requested additional operational data for analysis.

Cormetech continued to conduct interim testing, as documented in Cormetech’s performance test report, showing the collection of catalyst element samples in September 2007, November 2007, and May 2008, as well as inspection of the SCR reactor in April 2008. In December 2007, Cormetech informed B&W that its November 2007 lab test results were inconclusive: elevated levels of calcium and phosphorous were still evident, but “the rate of accumulation appearfed] to have slowed.” R. 114— 10, Cormetech Letter 12/17/07, Page ID 4829. Cormetech advised that further testing was indicated. Throughout this period, Cormetech never informed B&W “that any of the interim testing demonstrated that the catalyst was at the end of its catalytic life guarantees.” R. 115-18, Chitwood Aff. at ¶ 23, Page ID 5117. Instead, Cormetech assured B&W that it remained confident that the operational life warranty could be met.

Only in August 2008 was it made clear to B&W that Cormetech’s corrective efforts would fall short. According to Project Manager Chitwood, B&W received “preliminary notice” of the full performance guarantee testing results by email on or about September 3, 2008. Formal notice came later by letter on September 26, 2008. This letter from KCP&L advised in pertinent part “that the SCR does not meet the warranties and Performance Guarantees specified in the Contract.” R. 114-12, Cheatum Letter 9/26/08, Page ID 4860. The letter further advised that it was B&W’s obligation under the contract “to conduct a root cause evaluation and generate a corrective action plan with KCP&L and catalyst manufacturer to determine mutually agreeable repairs or modifications to achieve the Performance Guarantee.” Id.

B&W and Cormetech then undertook a root cause evaluation to determine why the catalyst failed to meet its expected life term. On February 7, 2009, B&W issued its Root Cause Analysis, summarizing its findings and conclusions. The Root Cause Analysis identified seven factors that contributed to the early deactivation of the catalyst, none of which was attributable to Cormetech: (1) burning fuels outside the specified range; (2) subjecting the catalyst to higher than specified ash loads; (3) failing to activate sonic horns that would have prevented ash buildup; (4) presence of severe tube leaks diming operation; (5) continued operation of the SCR without removal of accumulated ash, after a shutdown on August 4, 2007; (6) continued operation of the SCR without removal of accumulated ash, after an outage on August 31, 2007, until April 2008; and (7) poor combustion, which led to increased ash loading and possible phosphorous poisoning.

After KCP&L determined in 2008 that the catalyst was at the end of its useful life, it contracted directly with Cormetech to obtain a replacement catalyst. The replacement catalyst also failed before the end of its expected life. Ultimately, the problem that caused the early deactivation of both the original and replacement catalyst appears to have been remedied by replacement of the cyclone burners in the power station’s furnace. KCP&L asserted a claim against B&W based on the unsatisfactory performance of the SCR, which resulted in a $8.5 million meditation settlement.

B&W commenced this action against Cormetech in federal court based on the parties’ diversity of citizenship on August 8, 2012. The original complaint was dismissed without prejudice pursuant to the parties’ tolling agreement while B&W pursued mediation with KCP&L. After those efforts resulted in the settlement, B&W reinstituted the action on March 6, 2014, within the agreed tolling period, claiming recovery of the settlement amount from Cormetech based on breaeh-of-warranty and contractual indemnity theories. The parties completed discovery, Cormetech moved for summary judgment, and the district court granted the motion, finding no triable fact issue on either of B&W’s claims. The court held the breach-of-warranty claim was time-barred and the indemnification claim failed for lack of evidence that B&W’s losses resulted from a defect in goods or services purchased from Cormetech.

II. ANALYSIS

A. Standard of Review

The summary judgment ruling is reviewed de novo. Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir. 2013). Under Rule 56, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The reviewing court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Smith, 708 F.3d at 825. Not just any alleged factual dispute between the parties will defeat an otherwise properly supported motion for summary judgment; the dispute must present a genuine issue of material fact. A dispute is “genuine” only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party. Id. A mere scintilla of evidence or some metaphysical doubt as to a material fact is insufficient to forestall summary judgment. Sierra Club v. ICG Hazard, LLC, 781 F.3d 281, 284 (6th Cir. 2015). “A factual dispute concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the governing substantive law” — in this case, Ohio law. Crouch v. Honeywell Int’l, Inc., 720 F.3d 333, 338 (6th Cir. 2013).

B. Breach of Warranty Claim

B&W’s first claim alleges that Cor-metech expressly warranted that the catalyst furnished to B&W for the La Cygne Power Plant would operate “for a period not less than 36 months from initial operation or 24,000 of SCR system operating hours, whichever comes first.” R. 1, Complaint at ¶ 19, Page ID 4-5. The claim further alleges that B&W learned on August 5, 2008 that the Cormetech catalyst had reached the end of its useful life after no more than 14 months of operation, in breach of the performance warranty. Id. at ¶¶ 20-21. The district court held this claim was for enforcement of a performance warranty in a contract for the sale of “a good,” governed by Chapter 2 of the Uniform Commercial Code and is subject to the statute of limitations codified at Ohio R.C. § 1302.98. This conclusion is not contested on appeal.

The relevant statute provides in pertinent part:

(A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(B) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.

(Emphasis added). Thus, the breach-of-warranty claim is subject to a four-year period of limitation, which began to run when B&W discovered or should have discovered that the warranty was breached.

The district court concluded as a matter of law that B&W should have discovered the performance warranty breach by October 2007 at the latest, when Cormetech informed B&W that test results showed a “higher than expected loss of catalytic potential.” R. 114-9, Cormetech Ltr. 10/8/07 at 8, Page ID 4827. By then, the district court concluded, B&W “should have known that the catalyst would not meet its end of life guarantees.” See R. 121, Opinion at 17-19, Page ID 5190-92. Because B&W did not commence action on the breach-of-warranty claim until August 2012, the claim was held to be time-barred, as the four-year limitations period had expired in October 2011.

There is no dispute that KCP&L, B&W, and Cormetech all knew there was a problem with operation of the SCR at the La Cygne Power Plant right from the beginning. Yet, B&W maintains it did not know the catalyst performance warranty would be breached until September 2008, when it received notice of the results of Cormetech’s performance warranty testing, showing the catalyst was at the end of its operational life. At this point, B&W acknowledges, it had discovered that' Cor-meteeh’s performance warranty would inevitably be breached, even though the catalyst remained functional and in service for a total of 17,000 hours and was not replaced by Cormetech until March 2009. B&W thus contends that the four-year period of limitation began to run at this point and its original complaint, filed on August 3, 2012, was timely filed.

In rejecting this position, the district court placed heavy emphasis on B&W’s August 21, 2007 letter to Cormetech acknowledging that it had “reason to believe that the catalyst will not reach the end of life guarantees.” -However, this communication does not and could not reflect discovery that the future-performance warranty was or would inevitably be breached. Viewing the letter in light of the parties’ contract and ensuing course of conduct, its import is clear. B&W was putting its contractual business partner, the catalyst manufacturer, on notice of a manifest problem as early as possible so that Cormetech could undertake its contractual responsibility to do exactly what it did: investigate, monitor, test, identify the problem, and take appropriate corrective action to prevent the potential performance breach. In rejecting this eminently reasonable construction of the letter, the district court appears to have viewed the evidence in the light most favorable to the movant Cormetech, rather than the non-movant B&W.

The district court also rejected B&W’s contention that Cormetech’s October 2007 correspondence justified its delay in deducing that the performance warranty would be breached. True, Cormetech’s letter confirmed the earlier finding of “higher than expected loss of catalytic potential,” but it did not advise that the catalyst was approaching the end of its useful life. Instead, it recommended continued monitoring and various testing approaches, in furtherance of correcting the problem and meeting the performance warranty.

It had become evident, after six months of operation, that unless effective corrective action was identified and taken, the catalyst would not meet its 24,000-hour operational life warranty. Yet, Cormetech had undertaken its contractual responsibility to monitor performance and identify what corrective “repairs or modifications” were necessary “to achieve Performance Guarantee.” See R. 114-6, Catalyst Performance Guarantee Remedy Language Art. 2.1, Page ID 4812. In other words, in October 2007, the catalyst was not operating as expected, but had not yet experienced “catalyst life failure,” such as would have triggered B&W’s and Cormetech’s contractual duty to “conduct a root cause failure evaluation” and develop “a corrective action plan.” Id. at Art. 2.1, 3.2, Page ID 4812, 4815.

Still, Cormetech was actively investigating and attempting to identify appropriate corrective action to meet the catalyst’s op-' erational life guarantee. This understanding is substantiated by Jason Chitwood, B&W Project Manager, who attested that between the time of the initial performance guarantee testing in June 2007 and the full performance guarantee testing in August 2008, the SCR reactor continued to be “fully functional.” R. 115-18, Chitwood Aff. at ¶¶ 19-24, Page ID 5113, 5116-17.

Inasmuch as the October 2007 letter showed that the problem persisted, but that the cause remained indeterminate, and that Cormetech was cooperating in good faith to help ensure the success of the contract, it would make little sense for the court to construe the letter most adver-sarily as putting B&W on notice of the need to institute or' threaten litigation to protect its rights. Again, the district court appears to have given the benefit of reasonable inferences to Cormetech rather than to B&W.

The district court also cited the report of B&W’s own expert, Dr. Stephen Niksa, dated July 27, 2015, as support for the proposition that B&W should have known in August or October 2007 that the catalyst would not meet its end of life guarantees. The Niksa report is not oriented toward ascertaining what B&W knew and when. Rather, Niksa was hired by B&W to render expert opinions, as a chemical engineer, on the technical basis for B&W’s claims that Cormetech breached the contractual warranty and indemnity provisions. R. 114-17, Niksa Report at 1, Page ID 4900. Hence, Niksa’s report is oriented toward showing what Cormetech knew and when, for purposes of evaluating the suitability of Cormetech’s design of the catalyst for its intended purpose. To explain his opinions on Cormetech’s liability, Niksa referred to the testing results collected during the investigation of the catalyst’s performance deficiencies. The district court quoted some of these references accurately, but out of context. That is, the district court took advantage of Niksa’s hindsight in 2015, to conclude as a matter of law that B&W “should have known,” in the Fall of 2007, not that the performance warranty was breached, but that it likely would be breached at some indeterminate future date.

Yet, a breach-of-performance-warranty claim accrues under Ohio R.C. § 1302.98(B) when the breach of the warranty — not the possibility or likelihood of breach — was or should have been discovered. Even with the benefit of crystal clear hindsight, it is beyond peradventure that no breach of the performance warranty had occurred in October 2007. The catalyst continued to be operational for more than a year thereafter. Again, in October 2007, there simply was no breach that could or should have been discovered by B&W. Suffice it to say that the district court’s reliance on the Niksa report to conclude there was no genuine dispute as to when B&W discovered or should have discovered the performance warranty breach is far from persuasive.

To support its determination of B&W’s claim accrual, the district court cited one case, Miles v. Kohli & Kaliher Assoc., Ltd., 917 F.2d 235, 239, 256 (6th Cir. 1990). Miles is clearly distinguishable. In Miles, the court addressed several wrongful death claims by estates of motorists who lost their fives when a bridge collapsed. United States Steel Corporation (“US Steel”) was one of several defendants who played a role in the bridge construction. US Steel had fabricated the “bridge kit,” consisting of interlocking sections of corrugated steel plates designed for assembling into an arch and culvert. Id. at 288. Defendant Paulding County used the kit to construct the culvert. Two years after completion, inspection of the culvert raised questions. The US Steel project manager identified signs of “prior subsidence of the backfill” and advised the County that it could lead to collapse of the structure. Id. at 239. He recommended close monitoring and, if continued movement of the arch was observed, then replacement of the backfill material around the culvert.

Unfortunately, the County did not maintain close monitoring and the culvert collapsed before repairs could be made. The County sued US Steel for tortious breach of express warranty but the court held that the County should have discovered the breach of that warranty when the US Steel project manager “correctly identified the nature of the problem and communicated his findings to the appropriate County authority.” Id. at 256 (emphasis added). The County’s claim was asserted more than four years after this accrual date and was held to be time-barred.

Here, in contrast, Cormetech, the party that undertook investigation of the problem, cannot be said, as a matter of law, to have correctly identified and communicated the nature of the catalyst problem in such a way as to make it apparent to B&W in the Fall of 2007 that the performance warranty was or inevitably would be breached. Rather, the evidence shows that Cormetech’s testing results and corrective investigations remained inconclusive during the period August 2007 to August 2008. Cormetech did not advise B&W that the operational fife warranty would not be met despite its efforts; instead, it continued to assure B&W that its corrective measures could prevent a breach ... until August or September 2008. Only then did Corme-tech’s Performance Test Report disclose that “[a] Catalyst action is required to maintain the design performance level of the SCR.” R. 114-11, Performance Test Report at 20, Page ID 4851. And at that time, and KCP&L gave B&W notice that this amounted to a “catalyst fife failure” under the terms of the performance warranty that necessitated a corrective action plan.

Cormetech has the burden of establishing its statute of limitations defense, see Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013), but has failed to show that there is no genuine dispute about the date of accrual of the breach-of-performance-warranty. This conclusion is supported by other rulings relied on by B&W. See, e.g., Controlled Environments Const., Inc. v. Key Industrial Refrigeration Co., 266 Neb. 927, 670 N.W.2d 771, 782-85 (2003) (addressing diseovery-of-breach accrual for breach of future-performance warranty under UCC and holding that ambiguity in the record made out question of fact requiring reversal of summary judgment ruling); Anderson v. Crestliner, Inc., 564 N.W.2d 218, 222-23 (Minn. Ct. App. 1997) (reversing lower court’s dismissal and holding future-performance warranty breach did not occur when defect was first discovered, but when defendant manufacturer advised plaintiff that it would not honor warranty). The case law cited by Cormetech is plainly inapposite; none of the cases cited deal with “discovery” accrual of a claim for breach of a future-performance warranty under the UCC statute of limitations.

Accordingly, viewing the record in the light most favorable to B&W and giving B&W the benefit of all reasonable inferences, it is apparent, for the reasons set forth above, that there are at least genuine fact questions concerning when B&W should be deemed to have discovered that Cormetech was in breach of the operational life warranty. In emphasizing evidence of B&W’s knowledge of a problem with the catalyst in the Fall of 2007, and disregarding evidence tending to explain why B&W reasonably did not consider such knowledge notice that the performance warranty was or necessarily would be breached, the district court overstepped its bounds. It impermissibly engaged in “weighing the evidence” and assessing “the truth of the matter.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The award of summary judgment on the breach-of-warranty claim must therefore be vacated.

C. Indemnity Claim

In its second claim, B&W seeks enforcement of Cormetech’s contractual promise to indemnify B&W against all losses arising out of any defect in the goods or services, i.e., the $3.5 million loss B&W sustained in settling the matter with KCP&L. The district court granted Cor-metech summary judgment on this claim based on its holding that B&W had presented insufficient evidence that Corme-tech committed “any act or omission” that would support indemnification. Rather, the court observed that B&W’s Root Cause Failure Evaluation showed the early deactivation of the catalyst was due to “operating issues at KCP&L’s plant.” R. 121, Opinion at 22-23,. Page ID 5195-96. Indeed, the court noted that the Root Cause Report, prepared by B&W’s Project Manager Jason Chitwood on February 27, 2009, identified “seven factors that contributed to the early deactivation of the catalyst, none of which is attributable to Cormetech.” Id. at 5, Page ID 5178.

However, B&W cited other evidence of Cormetech’s fault. First, in his 2015 deposition, Chitwood affirmed the conclusions reached in the Root Cause Report. When asked if he believed there was any other contributing factor he could attribute to Cormetech, Chitwood implied that Corme-tech may have been at fault for not accounting for the potential for phosphorous poisoning in its design of the catalyst, but he conceded that he “didn’t know how they formulate it.” R. 115-6, Chitwood Dep. at 187, Page ID 5086.

In addition, Mark Low testified in deposition that poor combustion at the La Cygne Power Plant resulted in increased ash loading and the presence of gaseous phosphorous, which contributed to early deactivation. This was consistent with the seventh contributing factor identified by Chitwood in the Root Cause Report, but Low said the impact of phosphorous poisoning received more focus only after the even larger replacement catalyst provided by Cormetech to KCP&L in March 2009 deactivated almost as quickly as the first. This led Low to believe that Cormetech’s design or “formulation” of the catalyst “probably wasn’t optimum for the conditions that were specified.” R. 115-14, Low Dep. at 99-101, Page ID 5064. Asked to quantify the relative contributions of KCP&L’s operation mistakes and Corme-tech’s alleged design defect, Low offered that the design defect may have been 95% responsible for the early deactivation.

John Monacelli, another B&W employee, also testified in deposition that gaseous phosphorous played a significant contributing role in the deactivation of the catalyst, a factor Cormetech did not anticipate.

The district court dismissed all three of these sources as unreliable statements by B&W employees who “reasoned backwards from the fact that the catalyst failed earlier than expected to engage in rank speculation that the catalyst may not have been formulated properly.” R. 121, Opinion at 23, Page ID 5196. Further, the court noted that their speculation was “entirely negated” by the testimony of B&Ws own expert Stephen Niksa. Id. at 24, Page ID 5197. The court noted that Niksa’s report corroborated their “speculation” by concluding that phosphorous poisoning was the cause of the early deactivation and that Cormetech’s failure to recognize this potential was an oversight. In his deposition, however, Niksa was unable to identify a defect in the catalyst and the court viewed Niksa’s testimony as contradicting his report.

The deposition testimony of Chitwood, Low, and Monacelli stating their opinions about Cormetech’s failure to formulate a suitable catalyst, albeit not compelling, is some evidence. Granted, their opinions are not well supported and are informed by hindsight that compromises the value of their assessment of what Cormetech ought to have known and done in 2006-07, when the catalyst design was formulated. Still, the district court’s outright dismissal of their opinions as nothing but “rank speculation” is unwarranted at this stage.

Moreover, their opinions are buttressed by the evidence principally relied on by B&W to make out its “omission” case, the report of engineering expert Dr. Stephen Niksa:

By failing to properly account for the potential for P poisoning in its catalyst design for the La Cygne SCR, despite a clear warning in the remarkably high LOI [loss on ignition] levels from this furnace, Cormetech installed catalyst that was unfit for this SCR, and therefore had no chance to meet contract specifications.

R. 114-17, Niksa Report at 13, Page ID 4912. Based on his report, B&W contends that even though Cormetech’s catalyst proposal and management plan recognized the potential for chemical deactivation by calcium and phosphorous, and even though B&W’s specifications signaled a high potential for phosphorous poisoning, Corme-tech accounted only for the calcium masking potential and not for the phosphorous poisoning potential. This failure to account for the potential phosphorous poisoning is said to represent an omission that resulted in the installation of an unfit catalyst and was the reason for its premature deactivation. Id. at 10-13, Page ID 4909-12.

Right or wrong, Niksa’s technical opinion facially represents strong support for B&W’s claim. But the district court effectively disregarded the conclusion reached in Niksa’s report as undermined by his own deposition testimony given two months later. Again, the district court’s manifest error is in having viewed B&W’s evidence with a skeptical eye rather than an accepting eye. The court engaged in a weighing of the evidence that is impermissible at the summary judgment stage. The district court has identified weaknesses in B&Ws case, but we cannot agree that B&W’s evidence amounts to no more than a mere scintilla or a mere showing of “metaphysical doubt.” On viewing the evidence in the light most favorable to B&W, as we must, we cannot but conclude that there is a genuine issue for the fact finder as to whether Cormetech’s failure to anticipate the risk of phosphorous poisoning when it designed the catalyst was a cognizable “omission” warranting indemnification under the contract.

Accordingly, the district court’s award of summary judgment to Cormetech on the indemnity claim must also be vacated.

III. CONCLUSION

In sum, both of B&W’s claims of error are sustained. The summary judgment rulings on both of its claims against Corme-tech are VACATED and the case is REMANDED to the district court for further proceedings not inconsistent with this opinion.

CONCURRING IN PART AND IN THE JUDGMENT

KETHLEDGE, Circuit Judge,

concurring in part and concurring in the • judgment.

A cause of action cannot accrue (in the •sense of come into existence) before one of its elements does. And an element of a claim for breach of warranty .is not merely anticipation of a breach, but the breach itself. The limitations period for a breach of warranty claim therefore cannot begin to run — much less ran out — before the breach occurs. That is true regardless of whether the parties could have anticipated the breach before it actually happened.

. The relevant limitations provision in Chapter 2 of the Uniform Commercial Code, namely Ohio R.C. § 1302.98, only confirms these truths. That provision states that “[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued[,]” and that “a cause of action accrues when the breach occurs[.]” Ohio R.C. § 1302.98(A), (B). Thus, the limitations period for a breach of contract claim begins to run only when the breach occurs, and not before.

The confusion in this case seems to arise from a discovery rale applicable to certain breach of warranty claims, namely that “the cause of action accrues when the breach is or should have been discovered.” Ohio R.C. § 1302.98(B). But this rule serves only to lengthen rather than shorten the time for bringing suit. Specifically, under this rale, the claim accrues not when the plaintiff discovers or should have discovered the likelihood — or even the “inevi-tabl[e]” likelihood, Op. at 761-62 of some future breach. Instead, the claim accrues when the plaintiff discovers or should have discovered “the breach” itself. Ohio R.C. § 1302.98(B) (emphasis added); see also Ohio R.C. § 1302.27 cmt. n.13 (“[i]n an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained”) (emphasis added). And in addition to that textual point, there is the practical one that in most cases a plaintiff cannot possibly calculate its damages until it knows when, exactly, the breach occurred. For only then can the plaintiff know the extent of the breach, i. e., the amount of time that the product was warranted to perform in a certain way but did not. Hence the discovery rale of § 1302.98(B) can only postpone the date of the claim’s accrual — and thus the date on which the claim’s limitations period begins to run — from the date of the breach, to the date on which the breach was or should have been discovered.

Here, Cormetech warranted that its catalyst would perform in a certain manner (by removing at least 92% of the NOx from the plant’s flue gas and by limiting ammonia slip to an average of 2 ppm, among other things) for a certain minimum period of time (24,000 hours). That warranty was not breached until the catalyst did not, in fact, perform as warranted during that minimum period of time. On August 5, 2008, B&W discovered that the catalyst was not performing as warranted, because ammonia slip was then averaging ten ppm rather than two. Nobody suggests that B&W should have discovered that (actual) breach any sooner. Per the discovery rule of Ohio R.C. § 1302.98(B), therefore, B&W’s claim accrued on August 5, 2008. B&W filed suit less than four years later. Its claim was therefore timely.

I therefore join the Court’s thoughtful opinion except to the extent it suggests that a claim for breach of warranty could accrue when a plaintiff knows or should have known that the warranty “inevitably would be breached[,]” Op. at 761, rather than at the time of the breach itself — or even later, as set forth in § 1302.98(B).

CONCURRING IN PART AND DISSENTING IN PART

GRIFFIN, Circuit Judge,

concurring in part and dissenting in part.

I agree that the district court erred in granting summary judgment in Corme-tech’s favor on the breach of warranty claim, but disagree regarding the indemnity claim. I therefore respectfully concur in part and dissent in part.

In finding a genuine dispute of material fact regarding the indemnification claim, the lead opinion relies upon unsubstantiated and inadmissible opinions of three B&W employees. I disagree that we should elevate their testimony to something above pure speculation. All three made clear that while they believed the catalyst’s formulation was incorrect, they had no foundation for this belief.

In particular, Mark Low concluded “that the formulation probably wasn’t optimum for the conditions” due to the catalyst’s “rapid deactivation.” However, when asked to provide the basis for his conclusion, he was unable to do so — he admitted he did not “have any idea what the problem [was] with the formulation” and was not “aware of anybody within B&W who has any evidence that there was a problem with the formulation.” When directly confronted with why he thought “the catalyst was [not] fit for the conditions that it was actually designed for,” Low offered this equivocal non-answer:

Yeah, I think that, you know, no direct evidence at this point in time, but I believe that things were — you know, I don’t know. I don’t have any direct evidence I guess is the right answer....

To the extent Low assigned a “percentage of responsibility” for the alleged design defect, he qualified his speculative opinion as follows: “I don’t have any fact to tell you or specific analysis that could be done to say this is exactly the percentage of why the catalyst failed.” Finally, Low conceded he became focused on the formulation after Cormetech’s larger, replacement catalyst also failed.

John Monacelli’s testimony was likewise conclusory and without a factual basis. Monacelli’s opinion was that the catalyst’s design was defective because it failed. Beyond that, he admitted he had no knowledge of the catalyst’s formulation; rather, “[t]hat’s Cormetech’s area of expertise and we do not know that.” Monacelli later reiterated on his lack of knowledge and expertise:

Q: Was there something that you now believe, looking back, that Cormetech should have done differently with respect to this project?
A. I have an opinion, but I don’t know if it’s factual, but — and it’s because they’re the experts, I can’t answer for them, but was the formulation of this catalyst done correctly, and I have no insight into that and it can even be in hindsight was it done correctly.

It is true that Cormetech did not anticipate high levels of phosphorous gas at the La Cygne plant, but as Monacelli testified, neither did B&W. Jason Chitwood’s testimony confirms this, faulting the catalyst’s design for failing to anticipate high phosphorous levels, but admitting B&W did not anticipate such high levels either. When asked to explain this discrepancy, Chit-wood deferred to Cormetech’s expertise in the area.

In short, none of their opinions are supported by reference to facts and all are informed by hindsight. That is, their opinions about Cormetech’s failure to properly account for phosphorous poisoning were informed by knowledge that Cormetech’s even larger replacement catalyst had also failed. I therefore agree with the district court’s conclusion that this hindsight-informed, speculative testimony is insufficient to create a genuine dispute of material fact for trial. See Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003).

Second, the lead opinion “buttresses” this speculative testimony with the opinion of B&W’s expert, Dr. Stephen Niksa. But the lead opinion fails to put this in context. In his deposition, Dr. Niksa characterized the experience of “watching the replacement catalyst deactivate at the same rate” as the first as “extraordinary.” This experience, he said, made it clear that none of the other contributing factors that had been considered “would make a[] difference.” When asked specifically what that experience should have taught Cormetech about how it should have designed the catalyst differently, Niksa responded:

By throwing up a flag saying that given the potential for phosphorous deactivation in this application, no catalyst is going to work. That’s what they should have done. That’s exactly what they should have done.

In other words, Niksa, like the B&W employees, was unable to identify a defect in the catalyst that was the product of any omission or oversight by Cormetech until after the “extraordinary” event of the replacement catalyst failure. Then, it became apparent that the prbblem was not in the catalyst, but in the conditions of the La Cygne plant. And indeed, the problem seems to have been resolved; not by any change in the catalyst design or formulation, but by replacement of the cyclone burners, as freely acknowledged by Niksa in his report: “P[hosphorous] poisoning could only be alleviated by replacing the cyclone burners.”

Cormetech formulated the catalyst in 2006, but the evidence relied upon by the lead opinion to find a factual dispute in the form of phosphorous problems comes several years later. Before the replacement catalyst failure, B&W’s position was that the original catalyst failure was not attributable to any fault of Cormetech, but rather to various contributing factors related to KCP&L’s operation of the SCR. Corme-tech’s Performance Test Report in 2008 follows, giving no hint of suspicion that phosphorous poisoning resulting from poor combustion was a cause of the catalyst failure — even as Cormetech prepared to supply a replacement catalyst. Viewing B&W’s evidence in this context, I disagree with the lead opinion that B&W put forth sufficient evidence of a genuine dispute of material fact as to whether Cormetech’s failure to anticipate the risk of phosphorous poisoning when it designed the catalyst was a cognizable “omission” warranting indemnification under the contract.

Accordingly, I would affirm the district court’s grant of summary judgment in Cormetech’s favor on the indemnity claim. I join the lead opinion in all other respects.