source: Caselaw Access Project

author: SACK, Circuit Judge:

license: Public Domain

text:
    CROSS COMMERCE MEDIA, INC., Plaintiff-Counter-Defendant-Appellee, v. COLLECTIVE, INC., Defendant-Counter-Claimant-Appellant.
    Docket No. 15-782
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: February 10, 2016
    Decided: November 7, 2016

      Mark G. Matuschak (Vinita Ferrera and Martin E. Gilmore, on the brief), Wilmer Cutler Pickering Hale and Dorr, LLP, Boston, MA and New York, NY, for De-fendanNCounter-Claimant-Appellant.
    James M. Bollinger (Timothy P. Heaton, Puja Patel Lea, and Lindsay Mitchell Hen-ner, on the brief), Troutman Sanders LLP, New York, NY and Atlanta, Georgia; J. Mark Lane and Sharon M. Sash, on the brief, Lane Sash & Larrabee LLP, White Plains, NY, for Plaintiff-Counter-Defendant-Appellee.
    Before: KEARSE, POOLER, and SACK, Circuit Judges.
   SACK, Circuit Judge:

This appeal arises from a dispute between software companies over several trademarks containing the word “collective.” Appellant Collective, Inc. (“Cl”), defendant and counter-claimant in the district court, owns the registered marks “Collective Network,” “Collective Video,” and “C Collective The Audience Engine,” a stylized mark in which the word “Collective” appears most prominently (together, the “registered marks”). Cl also asserts common-law rights in the unregistered mark “collective,” standing alone. Appellee Cross Commerce Media, Inc. (“CCM”), plaintiff and counter-defendant in.the district court, operates under the name “Collective[i].” Cl alleges that this name (and two variants) infringes its registered- and unregistered marks. CCM seeks a judgment to the contrary, along with a declaration that Cl holds no common-law rights in the unregistered mark “collective” and an order compelling the U.S. Patent and Trademark Office (“PTO”) to cancel or modify Cl’s registered marks.

In a series of three orders, the district court (Katherine B. Forrest, Judge) granted summary judgment to CCM on virtually all points in dispute and awarded attorney’s fees under the Lanham Act. We reverse those decisions in part, vacate them in part, and remand for further proceedings.

BACKGROUND

Cl provides data-driven analytic software that helps businesses select effective marketing opportunities on multiple electronic platforms, including “computers, smart phones, tablets and connected television.” Declaration of Joseph T. Apprendi, CEO and Co-Founder of Cl,' dated July 10, 2014, at 4-6 (App’x 559-61). It was incorporated as Collective Media, Inc. in 2007, and its name was changed to Collective, Inc. in 2012. From 2008 to 2011, the company registered the trademarks “Collective Network,” “Collective Video,” and “C Collective The Audience Engine.” During the same period, Cl acquired the domain name www.collective.com for its principal website and referred to itself in at least several instances as “Collective.”

CCM provides its own brand of data-driven analytic software. According to one of the company’s trademark registrations, the software aids companies in “deploying and analyzing marketing campaigns.” See CCM’s Statement of Undisputed Material Facts dated June 11, 2014, at 6 (App’x 588). The company was founded as Cross Commerce Media, Inc. in 2007, but it began to do business under the mark “Collective[i]” (and the related marks “Collective Intelligence” and Collectivei) in 2011.

In late 2011, Cl contacted CCM to express its concern that use of the mark “Collective^]” in commerce would create confusion over the two companies because they operate in similar fields. After negotiations failed to solve the perceived problem, Cl sent CCM a cease-and-desist letter in late 2012 asserting CCM’s infringement of Cl’s trademarks, including the registered marks and the unregistered mark “collective.” In response, CCM filed this action in the United States District Court for the Southern District of New York in an effort to preempt an infringement lawsuit by Cl. CCM sought three remedies: a declaration that Cl did not own trademark rights to the unregistered mark “collective”; a declaration that the name “Collective[i]” did not infringe any of Cl’s registered or unregistered marks; and an order compelling the PTO to cancel or modify the registered marks. Cl, in turn, filed counterclaims under the Lanham Act alleging that CCM’s use of “Collective[i]”—along with “Collective Intelligence” and “Collectivei”—infringed Cl’s registered marks and the unregistered mark “collective.”

The district court resolved the parties’ claims and counterclaims in a series of three orders. First, before the parties had completed discovery, CCM moved for partial summary judgment as to the inherent distinctiveness of the unregistered mark “collective.” Trademarks, whether registered or unregistered, are grouped for purposes of analysis into four categories of increasing inherent distinctiveness: generic, descriptive, suggestive, and arbitrary or fanciful. Bernard v. Commerce Drug Co., 964 F.2d 1338, 1340 (2d Cir. 1992). CCM sought a decision by the district court that the unregistered mark “collective,” as used by Cl, is descriptive as a matter of law. Cl countered that the mark is suggestive—or, alternatively, that a jury should decide the issue. In a March 24, 2014 order, the court, agreeing with CCM, classified the mark as descriptive. Cross Commerce Media, Inc. v. Collective, Inc., No. 13 Civ. 2754 (KBF), 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *14-15 (S.D.N.Y. Mar. 24, 2014) (the “March Order”).

The March Order did not reject Cl’s counterclaim for infringement of the unregistered mark “collective” outright. By classifying the mark as descriptive, however, the order imposed a heightened evidentiary standard for establishing its entitlement to protection under federal trademark law. The Lanham Act affords protection to a descriptive mark only if the trademark holder can demonstrate that it has acquired secondary meaning in the marketplace—in other words, that the mark’s “primary significance” to relevant consumers “is to identify [the trademark holder as] the source of the product.” Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1041 (2d Cir. 1992) (internal quotation marks omitted). That showing “entails rigorous evidentiary requirements.” 20th Century Wear, Inc. v. Sanmark-Stardust, Inc., 815 F.2d 8, 10 (2d Cir. 1987) (internal quotation marks omitted). Had the mark instead been classified as suggestive, it would have received some degree of trademark protection even “without proof of secondary meaning.” McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1132 (2d Cir. 1979), superseded on other grounds by Fed. R. Civ. P. 52(a).

Seeking to build on the March Order, CCM subsequently moved for summary judgment as to Cl’s counterclaim for infringement of the unregistered mark “collective,” on two grounds. First, CCM argued that Cl could not establish that the mark had acquired secondary meaning— which, as noted, would mean that it was not entitled to protection under the Lan-ham Act. Second, CCM contended that even if “collective” had acquired secondary meaning, Cl could not establish infringement because it had not used the mark in commerce (and acquired corresponding trademark rights) until after CCM had introduced its own marks. Cl arguéd in response that it had raised triable issues of fact as to both issues, precluding summary judgment. In an August 21, 2014 order, the district court again agreed with CCM, concluding that Cl had no protectable rights in the unregistered mark “collective” both because the mark lacked secondary meaning and because Cl had not used it in commerce before CCM introduced its marks. See Cross Commerce Media, Inc. v. Collective, Inc., No. 13-cv-2754 (KBF), 2014 WL 11343849, at *1, 12-14, 2014 U.S. Dist. LEXIS 117244, at *2 (S.D.N.Y. Aug. 21, 2014) (the “August Order”). The court therefore dismissed Cl’s counterclaim for infringement of the unregistered mark “collective.”

Surprisingly, we think, the August Order also dismissed Cl’s distinct counterclaim for infringement of the registered marks. CCM’s memorandum of law in support of its summary judgment motion had advanced no argument regarding that counterclaim. The memorandum mentioned the registered marks only to argue that their validity (which CCM assumed for the sake of argument) would not buttress Cl’s claim that the distinct, unregistered mark “collective” was protectable. In keeping with the cabined nature of CCM’s memorandum, Cl’s opposition papers focused exclusively on the counterclaim for infringement of the unregistered mark “collective,” mentioning the registered marks only to contend that their validity would, in fact, buttress that counterclaim. The district court did not analyze the counterclaim for infringement of the registered marks but nonetheless ruled that the counterclaim failed as a matter of law.

Having prevailed on Cl’s counterclaims for infringement, CCM moved for several remedies: (1) an order compelling the PTO to cancel the registered marks “Collective Network” and “Collective Video,” either because they were descriptive and lacked secondary meaning or because Cl had abandoned them; (2) an order compelling the PTO to disclaim the term “collective” within the registered mark “C Collective The Audience Engine” because it is not independently entitled to trademark protection; (3) attorney’s fees under the Lan-ham Act; and (4) sanctions under various federal rules for abuse of the discovery process. In a December 16, 2014 order, the district court granted summary judgment for CCM on the issue of abandonment and awarded all of its requested remedies except for sanctions, which the court deemed duplicative of attorney’s fees under the Lanham Act. See Cross Commerce Media, Inc. v. Collective, Inc., No. 13-cv-2754 (KBF), 2014 WL 7323419, at *1, 2014 U.S. Dist. LEXIS 177176, at *2 (S.D.N.Y. Dec. 16, 2014) (the “December Order”).

Cl timely appealed the portions of the district court’s three orders that dismissed its counterclaims and granted CCM’s requested remedies.

DISCUSSION

“We review a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009) (internal quotation marks omitted). We will affirm only if “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). An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See SCR, 559 F.3d at 137.

After applying that standard of review to the voluminous record in this case, we reverse or vacate all contested portions of the March Order, August Order, and December Order. We do so on four grounds. First, in our view the unregistered mark “collective” is suggestive, not descriptive. Second, there is a genuine dispute of material fact as to whether Cl used the unregistered mark “collective” in commerce before COM introduced its allegedly infringing marks. Third, the district court prematurely granted summary judgment as to Cl’s counterclaim for infringement' of the registered marks, an action that neither party requested and the district court did not explain. Finally, there is a genuine dispute of material fact as to whether Cl abandoned its registered marks “Collective Network” and “Collective Video.” We therefore remand the case for a new round of summary judgment proceedings should either party choose to pursue them.

I. Inherent Distinctiveness

A trademark’s inherent distinctiveness is a fact-intensive issue. It must' be evaluated “in relation to the particular goods [to which the mark is attached], the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1378 (Fed. Cir. 2012) (internal quotation marks omitted). Applying that contextual approach, we conclude that Cl’s use of the mark “collective” is suggestive as a matter of law, and that the district court committed clear error in concluding otherwise. See Bristol-Myers Squibb, 973 F.2d at 1040 (‘We will substitute our own judgment [as to inherent distinctiveness] ... if the district court’s determination is clearly erroneous.”).

Both descriptive and suggestive marks convey information about, and thus are associated with, the product to which they are attached. The difference between them lies in the immediacy of association— how quickly and easily consumers grasp the nature of the product from the information conveyed. A descriptive mark communicates “ ‘an immediate idea of the ingredients, qualities or characteristics of the goods,’” Bernard, 964 F.2d at 1341 (quoting Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 11 (2d Cir. 1976) (Friendly, J.)), while a suggestive mark requires consumers to employ “imagination, thought and perception to reach a conclusion as to the nature of goods,” Time, Inc. v. Petersen Publ’g Co. L.L.C., 173 F.3d 113, 118 (2d Cir. 1999) (internal quotation marks omitted). Thus, “[i]f the mental leap between the word and the product’s attributes is not almost instantaneous, this strongly indicates suggestiveness, not direct descriptiveness.” 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:67 (4th ed.).

To determine the immediacy -of association between a mark and a-product, we generally consider how specifically and exclusively the mark describes the product. A descriptive mark, we have said, is one that“conjure[s] up the image” of the precise good'with which it is associated. Playtex Prods., Inc. v. Ga.-Pac. Corp., 390 F.3d 158, 164 (2d Cir. 2004), superseded by statute on other grounds as recognized in Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 107-08 (2d Cir. 2009). A suggestive mark, by contrast, is ordinarily one that “describes an attribute of the product” but “could plausibly describe a wide variety of [other] products” as well. Id. In other words, the meaning of a descriptive' mark is narrowly tailored to its associated product, such that it calls that product immediately to mind. The meaning of a suggestive mark typically evokes an array of goods, which means that consumers must make an additional mental effort to identify the associated product in particular. '

Thus, in Playtex, we affirmed the district court’s conclusion that the mark “Wet Ones,” used for moist towelettes, was suggestive rather than déseriptive. We reasoned that the mark evoked qualities (dampness and one-by-one usage) that towelettes shared with a wide range of goods, which made it relatively difficult for consumers to divine the nature of the particular product at issue from the mark alone. See id. Similarly, we decided in Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70 (2d Cir. 1988), that the mark “-GUNG-HO,” used for a marine action figure, was suggestive because it described “elements of the personality attributed to the [action figure], as well as other toys, without describing the particular [action figure] itself or its differentiating qualities,” id. at 75 (emphases added). By contrast, we have classified the mark “Sportscreme,” used for. an analgesic rub designed for athletes, as descriptive because it specifically conjured “a cream useful in connection with sports.” Thompson Med. Co. v. Pfizer Inc., 753 F.2d 208, 216 (2d Cir. 1985).

Applying the same analytic framework here, we conclude that the mark “collective” is only suggestive of Cl’s products. As the district court noted, Merriam-Webster,’s online dictionary defines the adjective “collective” as: “denoting a number of persons or things considered as one group or whole”; “formed by collecting: aggregated”; and “of, relating to, or being- a group of individuals.” Collective, .Merriam-Webster Online ■ Dictionary, http://www.merriam-webster.com/ dictionary/collective (last visited Aug. 9, 2016), [https://perma.cc/YU2F-Q3JT]; see March Order, 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *14. The same dictionary- defines the noun “collective” as “a collective body: group” or “a cooperative unit or organization.” Collective, Merriam-Webster, supra.

After reviewing the record, we find three plausible associations between those definitions and Cl’s products. First, Cl asserts that it is able to analyze vast amounts of data in order to help clients identify effective marketing opportunities, a service that could be described as “collective” in nature—or, perhaps, producing a “collective” of relevant data. Second, Cl points to its capacity to identify marketing opportunities across multiple electronic devices, which could be framed as offering consumers a “collective” of marketing platforms. And third, in the most general sense, the company’s software ■ works to aggregate advertising opportunities and present them, as a “collective,” to users.

These associations lack the specificity that would enable an average consumer to intuit the nature of Cl’s business from the “collective” mark, at least absent considerable imaginative effort (or luck). As in Playtex and Hasbro, the mark has comparably strong associations with a range of distinct enterprises that offer unrelated goods, including software, to consumers: Search engines and investment advisers seek to aid their clients by analyzing “collectives” of data; health insurers and banks serve clients across a “collective” of platforms; and real estate brokers and online ticket exchanges could be said to offer a “collective” of options for their clients to consider. Indeed, the word “collective” might even bring to mind businesses that could themselves be called “collectives,” such as collective farms or collective grocery stores. When encountering Cl’s use of the term “collective” for the first time, therefore, the average consumer does not, in our view, have a compelling reason to conclude that the company provides data-driven marketing tools. Conjuring the image of Cl’s software in particular, rather than other goods or services that the word “collective” might be used to describe, demands a substantial mental leap. For that reason, we conclude that “collective”- is a suggestive mark in this context.

In reaching a contrary conclusion, the district court did not adequately evaluate the mental leap between the mark “collective” and Cl’s products. After reciting several of the dictionary definitions set forth above, the court observed: “This is precisely the manner in which [Cl] uses the word; it is an advertising network that offers a collection or collective of advertising opportunities.” March Order, 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *14. Based on that observation alone, the court then concluded that “[t]he word ‘collective’ thus literally describes ‘an immediate idea of the ingredients, qualities or characteristics’ of [CI] ’s product.” Id, (quoting Bristol-Myers Squibb, 973 F.2d at 1040). In doing so, the court mistakenly equated the fact of association (which does not distinguish between descriptive and suggestive marks) with immediacy of association (which does). The word “collective” in Cl’s marks provides a clue as to the nature of Cl’s products. But the critical inquiry^ which the court did not reach, is how easily consumers would deduce the nature of Cl’s products from “collective” alone.

The district court suggested that its decision was reinforced by two additional considerations: the frequency with which third parties have used the word “collective” in their names, and the PTO’s prior treatment of various trademark applications containing that word. See id., 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *14-16. To be sure, such considerations may, in some circumstances, inform a court’s evaluation of inherent distinctiveness. In this case, however, the available evidence regarding third-party usage is indeterminate, while the PTO’s prior practice indicates that “collective” is a suggestive mark.

As a general matter, information about how third parties have used a mark in commerce may shed light on its inherent distinctiveness in several ways. First, we have recognized that a mark is more likely to be descriptive, rather, than, suggestive, if “[according [it] trademark exclusivity ... would inhibit competitors from using descriptions of their competing products.” TCPIP Holding Co. v. Haar Commc’ns, Inc., 244 F.3d 88, 93-94 (2d Cir. 2001); see also PaperCutter, Inc. v. Fay’s Drug Co., 900 F.2d 558, 563 (2d Cir. 1990) (noting that the distinction between descriptive and suggestive terms may be sharpened by “evaluation of ... the potential impact on competitors of the appropriation of the term as a trademark by a particular seller”). Information about how rival third parties have used a mark could be instructive in that regard: Consistent usage by competitors might indicate that it is a vital descriptive tool in the industry, while minimal usage might suggest the contrary. Additionally, as we have observed, a mark is more likely to be suggestive, rather than descriptive, if its meaning evokes a wide range of products. See Playtex, 390 F.3d at 164. Information about how third parties in unrelated industries have used a mark could bear on that issue: Widespread usage by different types of businesses might indicate that it calls to mind a variety of products, while minimal usage might imply otherwise.

Here, the district court cited three statistics regarding third-party usage of the “collective” mark: (1) “[t]he word ‘collective’ is used in the name of, over 7,000 businesses in 45 states”; (2) “[t]here are over 25,000 Internet domain names that contain the word ‘collective’ ”; and (3) “more than a dozen companies in the digital advertising and marketing field ... also use the word ‘collective.’ ” March Order, 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *14-15. These statistics do not, in our view, provide enough information to be probative of the mark’s inherent distinctiveness. It is unclear to what extent the first two numbers pertain to Cl’s competitors (in which case widespread use might indicate that “collective” is descriptive) or third parties in unrelated industries (in which case widespread use might indicate that “collective” is suggestive). The third statistic is somewhat more narrowly drawn, inasmuch as it relates only to companies involved with digital marketing. Even so, however, it is not limited to companies that produce software similar to Cl’s. And in any event, the fact that a dozen digital-marketing companies have used the word “collective” is a numerator without a denominator: A dozen companies could be a significant portion of the digital-marketing field (which might indicate that “collective” is a vital descriptive tool in the industry) or a tiny sliver (which might indicate that competitors need not rely on “collective” to describe their products). Overall, therefore, the cited evidence of third-party usage carries little weight regarding the inherent distinctiveness of “collective” in this case.

The PTO’s prior treatment of trademark applications may inform a court’s analysis of inherent descriptiveness in a different way. Before deciding whether to grant an application, the agency determines the inherent distinctiveness of the mark at issue—and, in many instances, its constituent parts. Because the agency has developed expertise in trademarks, courts accord “great weight” to its conclusions. Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95, 101 (2d Cir. 1989). Thus, if the PTO has previously classified the particular mark before the court as either descriptive or suggestive, the court will generally follow suit absent compelling grounds for disagreement. See, e.g., PaperCutter, 900 F.2d at 563 (“ ‘[T]he decision of the [PTO] to register a mark without requiring proof of secondary meaning affords a rebuttable presumption that the mark is more than merely descriptive.”’ (quoting McGregor-Doniger, 599 F.2d at 1132)). And even where the PTO has not previously considered the particular mark at issue, courts may draw a measure of guidance from the way the agency has classified analogous marks. See, e.g., Real News Project, Inc. v. Indep. World Television, Inc., No. 06 Civ. 4322 (GEL), 2008 WL 2229830, at *10-13 & n.17, 2008 U.S. Dist. LEXIS 41457, at *30-43 & n.17 (S.D.N.Y. May 27, 2008) (classifying the plaintiffs use of the mark “REAL NEWS” as descriptive and noting that the PTO’s classification of similar marks incorporating the term “real” as descriptive “confirmed] the Court’s analysis”).

The district court cited one statistic about the PTO’s prior practice: The agency “has either required disclaimer of the use of the word ’collective’ as being descriptive or rejected the application entirely on the same basis in 186 instances.” March Order, 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *15. Again, we are not convinced that this statistic is probative of inherent distinctiveness. It pertains to all uses of the word “collective”—not solely those analogous to Cl’s use of the word, where the PTO’s analysis would be of import. And in any event, the figure is another numerator without a denominator. As we understand the record, the PTO has required disclaimer of the word “collective” because it is descriptive, or rejected applications for the same reason, 186 times out of 53j—ap-proximately thirty-five percent of the time. App’x 81. It is therefore far from clear that the PTO routinely classifies “collective” as a descriptive mark in any context, let alone the context relevant to this case.

In our view, the district court seems to have overlooked a more probative fact about the PTO’s prior practice: Although each of OI’s registered marks contains the word “collective,” the PTO did not disclaim that word as descriptive—or, as far as we can tell from the record, require a showing of secondary meaning—in any instance. That fact bolsters Cl’s argument that the mark should be classified as “more than merely descriptive.” PaperCutter, 900 F.2d at 563 (internal quotation marks omitted).

We therefore reverse the portion of the March Order that concluded, as a matter of law, that “collective” is a descriptive mark. Although Cl bore the burden of proving “collective” was suggestive, see Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (noting that where the moving party has pointed to the absence of evidence to prove a fact material to an issue on which the opposing party has the burden of proof at trial, the opposing party has “the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial” (internal quotation marks omitted)); Reese Publ’g Co. v. Hampton Int’l Commc’ns, Inc., 620 F.2d 7, 11 (2d Cir. 1980) (concluding that where “the mark is not registered,” the burden is on the proponent to “prove that its mark is a valid trademark”), we think that the relevant evidence already in the record when CCM moved for partial summary judgment—including the dictionary definitions of “collective,” the nature of Cl’s business, and the PTO’s prior decisions regarding the registered marks— uniformly supports the classification of “collective” as a suggestive mark. Cl was not obligated to submit still more evidence to prevail on the issue. Instead, we con-elude that “collective” is a suggestive mark, which means it is entitled to some degree of trademark protection even absent proof of secondary meaning. See McGregor-Doniger, 599 F.2d at 1132. For that reason, we also vacate the portion of the August Order that dismissed Cl’s counterclaim for infringement of the unregistered mark “collective” based on Cl’s purported failure to- show secondary meaning, along with the portion of the December Order that compelled the PTO to disclaim the word “collective” in “C Collective The Audience Engine.”

Finally, we note that when CCM moved for summary judgment as to Cl’s counterclaim for infringement of the unregistered mark “collective,” it presumably chose its arguments in light of the district court’s classification of the mark “collective” as descriptive. We direct the district court, on remand, to give CCM a reasonable opportunity to re-file for summary judgment as to this counterclaim in light of our decision that the mark is suggestive. And, of course, the district court may reopen discovery to the extent it deems necessary or advisable.

II. Cl’s Use of “Collective” In Commerce

In addition to its rulings regarding inherent distinctiveness and secondary meaning, the district court concluded that Cl’s counterclaim for infringement of the unregistered mark “collective” failed as a matter of law for an independent reason: CI had not used the mark in commerce until after CCM introduced its own marks. If that were so, Cl would have possessed no rights that CCM could infringe, thus dooming its counterclaim. See Hana Fin., Inc. v. Hana Bank, — U.S. -, 135 S.Ct. 907, 909, 190 L.Ed.2d 800 (2015) (“Rights in a trademark are determined by the date of the mark’s first use in commerce,”). But the record contains colorable evidence that Cl began using “collective” continually- in commerce well before CCM employed its allegedly infringing marks in 2011. This evidence precludes summary judgment on the, issue.

‘ A mark is used in commerce when it is employed “to identify ... goods or services” sold to consumers “in a given market.” ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 147 (2d Cir.), cert. denied, 552 U.S. 827, 128 S.Ct. 288, 169 L.Ed.2d 38 (2007). Cl introduced - the domain name www. collective.com for its -principal-website in late 2008. That website appears to have been commercial in nature: The record indicates that it described Cl’s products and sought to explain what “set[] [the company] apart” from its competitors. App’x 1095-96. And soon after the site went live, Cl purchased several standalone advertisements that directed consumers to “collective.com” for more information about the company. See App’x 1125-27. Taken together, this evidence tends to establish that Cl put its domain name, which features the stand-alone mark “collective,” to continuous commercial use beginning sometime before 2011. Although the district court correctly noted that “the use of a phrase in a domain name does not necessarily mean that it is being used as a mark in commerce,” August Order, 2014 WL 11343849, at *13, 2014 U.S. Dist. LEXIS 117244, at *35-36 (citing TCPIP Holding Co., 244 F.3d at 104), the court erred in finding that, other than the use of “ ‘collective’ in its domain name and email addresses,” Cl had “failed to” “bring forth additional evidence that it used the mark in its marketing materials,” id. Cl also used a capitalized version of the mark, “Collective,” to refer to itself on its website, see App’x 1095, and in its advertising, see App’x 1125-27. Those references could reasonably be considered additional commercial uses of the mark. We therefore think that Cl has raised a genuine issue of material fact as to whether it began using “collective” in commerce before CCM introduced its allegedly infringing marks, and we vacate the portion of the August Order that concluded otherwise.

III. Cl’s Counterclaim for Infringement of the Registered Marks

As we have noted, the district court dismissed Cl’s distinct counterclaim for infringement of the registered marks without a thorough explanation. In this Circuit, claims for infringement must be analyzed under a two-prong test that looks first to whether the allegedly infringed mark “is entitled to protection,” and second to whether use of the allegedly infringing mark “is likely to cause consumers confusion as to the origin or sponsorship” of the products to which it is attached. Virgin Enters. Ltd. v. Nawab, 335 F.3d 141, 146 (2d Cir. 2003). The likelihood of confusion must be analyzed with reference to the eight factors first articulated in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961), one of which is “the degree of similarity between the two marks,” id. This framework has not been applied to Cl’s counterclaim for infringement of the registered marks. CCM never moved for summary judgment as to protectability or likelihood of confusion.

The district court may instead have concluded that CCM did not infringe the registered marks solely because it did not use them verbatim. In the March Order, the court observed: “There is no allegation in this case that CCM has used any of the [registered marks]. Rather, the issue before this Court is whether [Cl] has a right to exclude CCM from use of the word ‘collective’ in its mark.” March Order, 2014 WL 1202939, at *2, 2014 U.S. Dist. LEXIS 38606, at *5. Later, in the August Order, the court reiterated: “The key merits question in this litigation is whether Cl has a protectable mark in the single word ‘collective.’ ” August Order, 2014 WL 11343849, at *11, 2014 U.S. Dist. LEXIS 117244, at *31. These passages suggest that, in the district court’s view, the differences between Cl’s registered marks and CCM’s allegedly infringing mark were fatal to Cl’s counterclaim for infringement of the registered marks. We are unable to square any such conclusion with our case law. Although differences among the marks are relevant to one of the eight Polaroid factors—the degree of similarity between the marks—they are not independently dispositive of Cl’s counterclaim. Because the district court has not yet performed the more comprehensive legal analysis outlined above, we vacate the grant of summary judgment as to the registered marks.

In light of the above-quoted passage from the August Order, we think that CCM may have understood the district court to suggest that Cl’s counterclaim for infringement of the registered marks had effectively been dismissed. Indeed, after the district court issued the August Order, CCM moved for cancellation of two of the registered marks, a remedy eventually granted in the December Order. CCM may have decided, on the basis of this understanding, to advance further summary judgment arguments only as to the counterclaim for infringement of the unregistered mark “collective.” To avoid undue prejudice, we direct the district court, on remand, to permit CCM a reasonable opportunity to move for summary judgment as to the counterclaim for infringement of the registered marks. Again, the district court may re-open discovery to the extent it deems necessary or advisable.

IV. Cancellation of Registered Marks

After granting summary judgment for CCM on Cl’s counterclaims, the district court found that Cl had abandoned the marks “Collective Network” and “Collective Video” and, based on that abandonment, ordered the PTO to cancel the corresponding registrations. See 15 U.S.C. § 1064(3) (authorizing petitions for cancellation on ground of abandonment); id. § 1119 (empowering district courts to compel cancellation). “To determine that a trademark or trade name is abandoned, two elements must be satisfied: non-use of the name by the legal owner and no intent by that person or entity to resume usé in the reasonably foreseeable future.” Stetson v. Howard D. Wolf & Assocs., 955 F.2d 847, 850 (2d Cir. 1992) (citing Silverman v. CBS Inc., 870 F.2d 40, 45 (2d Cir. 1989)). The district court concluded that CCM-had satisfied both elements, as a matter of law, because “the undisputed evidence revealed] that Cl has not used the marks ‘Collective Video’ or ‘Collective Network’ in commerce.” December Order, 2014 WL 7323419, at *2, 2014 U.S. Dist. LEXIS 177176, at *5. We disagree.

In our view, a reasonable factfin-der could conclude that Cl has made extensive commercial use of both “Collective Network” and “Collective Video.” Cl’s vice president and creative director, Britta Hoskins, stated in a declaration that the company had “continuously and extensively used, advertised, and promoted its services using the ... trademarks COLLECTIVE NETWORK and COLLECTIVE VIDEO” from February 2011 to October 2014. Declaration of Britta Hoskins dated October 6, 2014, at 1-2 (App’x 1428-29). To support that assertion, Hoskins attached several exhibits to her declaration: (1) a 2014 screenshot of a page on Cl’s website with the heading “Collective Network” and text describing the company’s services, including a paragraph titled “Why You Should Work With Us,” see id. at 2 & Ex. A (App’x 1429, 1433) (capitalization removed); (2) a 2013 screenshot of a page on Cl’s website that describes the advantages of the “Collective Video experience,” see id. at 3 & Ex. C (App’x 1430, 1438); (3) an excerpt from Cl’s “standard slide deck that it uses to respond to prospective client[s],” which lists the features of “Collective Video,” see id. at 3 & Ex. B (App’x 1430, 1436); and (4) several stand-alone advertisements for “Collective Video” that were created and distributed in 2011 or 2012, see id. at 3 & Ex. D-F (App’x 1430, 1440, 1442, 1444). Taken together, this evidence could support a finding that Cl used the two marks in commerce for several years before this lawsuit was commenced.

In concluding otherwise, the district court noted that another Cl employee, Aman Verjee, gave markedly different testimony about the company’s use of “Collective Network” and “Collective Video.” Speaking as Cl’s corporate representative under Federal Rule of Civil Procedure 30(b)(6), Verjee stated that he was not aware of any commercial use 'of either mark. See May 29, 2014 Deposition of Aman Verjee, at 103:17-104:16, 106:13-18 (App’x 1402:17-1403:16,1404:13-18). In the district court’s view, this testimony was decisive because it was the only relevant evidence in the record: “As Cl has offered no evidence supporting a specific use of the marks in commerce,” the court reasoned, “there is no evidence counter to that of its own corporate designee on this topic, Aman Verjee, who testified of no known use.” December Order, 2014 WL 7323419, at *2 n.l, 2014 U.S. Dist. LEXIS 177176, at *5-6 n.l. As we have noted, we find Hoskins’ affidavit and corresponding exhibits to constitute such evidence, thereby creating a genuine issue of material fact on the issue of commercial use sufficient to defeat CCM’s motion to cancel Cl’s trademark registrations. Accordingly, we vacate the district court’s December Order finding that Cl had abandoned the marks “Collective Network” and “Collective Video,” and vacate the district court’s subsequent cancellation order to the PTO.

V. Attorney’s Fees

In light of the foregoing, we also vacate the December Order’s award of attorney’s fees. The Lanham Act authorizes such fees for the prevailing party in “exceptional” cases. 16 U.S.C. § 1117(a). Because neither party has yet prevailed, the district court’s award was at best premature.

CONCLUSION

For the foregoing reasons, we REVERSE the district court’s orders in part, VACATE them in part, and REMAND for further proceedings.

      . The bracketed letter "i" is part of the name. The brackets are not, as they often are in other contexts, an indication of editing by the Court.

      . Cl also filed a counterclaim for unfair competition under New York common law, but that counterclaim was later dismissed with prejudice by stipulation of the parties.

      . Proof of secondary meaning may nonetheless be relevant when determining whether a suggestive mark has been infringed: Courts may "view evidence concerning the origin-indicating significance of a mark in the marketplace as relevant to and probative of the strength of a mark and hence useful in assessing the likelihood of confusion.” McGregor-Doniger, 599 F.2d at 1132.

      . The author of this opinion has noted elsewhere his "general[] reticen[ce] to invoke dictionary definitions, at least in contexts perhaps unforeseen by their writers.” Mastrovincenzo v. City of New York, 435 F.3d 78, 107 (2d Cir. 2006) (Sack, J., concurring in part and dissenting in part). As the district court pointed out, however, the use of dictionaries for the purpose of deciding whether a trademark is descriptive is permissible. See March Order, 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *13 (citing Coach Servs., 668 F.3d at 1378). Moreover, it seems to us that these definitions of ''collective” are reasonable and relatively uncontroversial. The district court therefore properly relied on them in the March Order, and we follow suit.

      . After issuing the March Order, the district court noted that it had classified "collective” as a descriptive mark in part because Cl "failed to submit any marketing materials, survey research, or even an affidavit supporting suggestiveness.” December Order, 2014 WL 7323419, at *1, 2014 U.S. Dist. LEXIS 177176, at *3; see also August Order, 2014 WL 11343849, at *11 n.10, 2014 U.S. Dist. LEXIS 117244, at *31-32 n.10 (reflecting similar reasoning). We have trouble following that rationale. Cl moved to stay adjudication of the mark’s inherent distinctiveness until after its expert had the opportunity "to perform survey research into, among other things, the factual issues relevant to .,. inherent .., distinctiveness.” Declaration of Eric J, Andalman in Support of Cl’s Fed. R, Civ. P. 56(d) Motion to Continue or Defer CCM’s Motion for Partial Summary Judgment at ¶ 8, Cross Commerce Media, Inc. v. Collective, Inc., No. 13-cv-2754 (S.D.N.Y. Jan. 21, 2014), ECF No. 41. The district court denied Cl's request. We thus fail to see how Cl could subsequently be faulted for failing to submit relevant survey research.

      . In response, Cl argued that cancellation would be inappropriate because the.district court had dismissed all counterclaims for infringement without addressing "the validity of the registrations,” which meant that its "rulings” had “mooted any justiciable interest in cancellation of the registrations.” App’x 1422. On appeal, CCM characterizes Cl’s argument on this point as a waiver of its counterclaim for infringement of the registered marks. We disagree. Cl argued that the district court's prior rulings had not analyzed the validity of its trademark registrations. The company did not disclaim its contention that CCM had infringed those registrations.

      . The district court construed CCM’s motion for cancellation as one for summary judgment, although it was not styled as such. See December Order, 2014 WL 7323419, at *2, 2014 U.S. Dist. LEXIS 177176, at *4-5.


author: JORDAN, Circuit Judge.

text:
    Jeanne ZALOGA; Edward Zaloga, D.O., C.P.A.; Correctional Care Inc. v. BOROUGH OF MOOSIC; Moosic Borough Council; Moosic Borough Planning Commission; Moosic, Borough Zoning Board of Adjustments; Joseph Mercatili, Individually and in his official capacities as President of Moosic Borough Council; Joseph Dente, Individually and in his official capacity as Vice President of Moosic Borough Council and member of the Moosic Borough Planning Commission; Thomas Harrison; Individually and in his official capacity as Moosic Borough Manager; Bryan Fauver, Individually and in his official capacity as Chairman of Moosic Borough Planning Commission; James Durkin, Individually and in his official capacity as Moosic Borough Zoning and Enforcement Officer; John J. Brazil; Willard Hughes Joseph Mercatili, Appellant.
    No. 15-2723
    United States Court of Appeals, Third Circuit.
    Argued July 12, 2016
    (Filed: October 24, 2016)
    Joshua M. Autry [ARGUED], Laverty Faherty Patterson, 225 Market Street— Ste. 304, P.O.- Box 1245, Harrisburg, PA 17108, Counsel for Appellants.
    Bruce L. Coyer," Joseph T. Healey [ARGUED], O’Malley Harris Durkin & Perry, 345 Wyoming Avenue, Scranton, PA 18503, Counsel for Appellees.
    Before: SMITH , JORDAN, and RENDELL, Circuit Judges.

       Honorable D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on October 1, 2016

   OPINION OF THE COURT

JORDAN, Circuit Judge.

This case is an appeal from an interlocutory decision denying defendant Joseph Mercatili’s claim to qualified immunity. Dr. Edward Zaloga, who had been engaged in an ongoing feud with local government officials, publicly opposed Mercatili’s reelection as the President of the Moosic, Pennsylvania Borough Council. Mercatili allegedly retaliated against Zaloga by seeking to damage his business interests.

Zaloga brought this § 1983 suit against several county entities and individuals, alleging various constitutional violations, including Mercatili’s retaliation. The United States District Court for the Middle District of Pennsylvania granted the defendants’ motion for summary judgment with respect to all defendants except Mercatili. The Court decided that Mercatili’s claim to qualified immunity depended on disputed facts and would have to be resolved by a jury-

Mercatili now appeals, arguing that he is entitled to qualified immunity because his conduct, even if Zaloga’s allegations are true, did not violate clearly established law. We agree and will reverse and remand for the District Court to grant summary judgment in Mercatili’s favor.

1. BACKGROUND

A. Factual Background

The Plaintiffs in this case are Dr. Edward Zaloga and Correctional Care, Inc., a medical company he owns and “that provides contracted services to correctional facilities.” (Zaloga v. Borough of Moosic, M.D. Pa. CA No. 10-2604-MWB Docket Item (“D.I.”) 156, at 2 ¶ 3.) Zaloga resides in the Borough of Moosic in Lackawanna County, Pennsylvania. At all relevant times, Lackawanna County, through the oversight of the Lackawanna County Prison Board, has contracted with Correctional Care to provide medical services to the Lackawanna County Prison.

Although the Plaintiffs initially sued the Borough of Moosic, the Borough Council, the Borough’s planning commission and zoning board, and various Borough officers, the only remaining defendant is Mer-catili. The legal friction between Zaloga and the Borough originated in disputes between the Zaloga family and a tire company that occupied a facility immediately adjacent to the Zalogas’ home. Frustrated by the Borough’s handling of those disputes, Zaloga launched political attacks on Mercatili and John Segilia—the then-may- or of the Borough (now deceased)—pub-lically opposing their nominations for reelection to public office.

About a month later, the Lackawanna County Solicitor notified Zaloga that the County intended not to continue its contractual arrangement with Correctional Care upon expiration of the contract’s terra. The Solicitor also said, however, that Correctional Care could compete with other health care providers in bidding for a new contract. It indeed did so, but Zalo-ga’s attorney informed him that, according to conversations with a Lackawanna County Prison Board member, Segilia and Mercatili were attempting “to block [Correctional Care’s] contract renewal.” (A169a ¶ 29.) Shortly thereafter, a Prison Board member told Zaloga that “both Se-gilia and [Mercatili] were upset with [Za-loga’s] persistent opposition to their decisions regarding the ,, [t]ire facility and [Zaloga’s] challenge to their nominating petitions, and that Segilia and [Mercatili] wanted the Prison Board member to oppose [Correctional Care’s] upcoming contract renewal.” (D.I. 156, at 32-33 ¶¶ 102-OS.) Later, a “second Prison Board member informed [Zaloga] that Segilia and [Mercatili] contacted him and demanded that he also vote against the renewal of [Correctional Care’s] contract ... in exchange for their support for his [ie., the Board member’s] political campaign.” (D.I. 156, at 33 ¶ 104.) Sometime between April and November 2009, Segilia and Mercatili also approached John Szymanski—the Lackawanna County Sheriff and a Prison Board member—and' told him that “they would support [his] campaign for re-election only if [he] would oppose Dr. Zalo-ga’s company’s contract renewal.” (A179a ¶ 5 (emphasis in original).)

The record contains several additional instances of Segilia and Mercatili purportedly applying political pressure on Prison Board members. The District Attorney for Lackawanna County, also a Prison Board member, averred that, when discussing Correctional Care’s contract renewal with Segilia in 2009, Segilia “indicated that he [had] a problem with Dr. Zaloga ... because of his ongoing legal battle in Moosic and because [Zaloga] ‘,. attempted to have [Segilia and Mercatili] thrown off the ballot.’ ” (A175a ¶ 6.) According to the District Attorney, “just prior to Correctional Care’s medical contract renewal,” another Prison Board member told him that Segilia and Mercatili were angry at him for “considering a vote in favor of renewing Correctional Care’s contract with the Lacka-wanna-County Prison.” (A175a ¶7.) The Board member went on to express his personal concern that Segilia and Mercatili “would either not support him or even work against him in his re-election bid.” (A175a ¶ 7.) The District Attorney himself did not speak with Mercatili until after the County had already renewed its contract with Correctional Care.

Ultimately, the County unanimously voted to award Correctional Care a three-year contract renewal, and the contract was renewed again in 2012.

B. Procedural Background

The Plaintiffs filed their first complaint in 2010, and subsequently amended it three times. Count I of the Third Amended Complaint alleges that the Defendants retaliated in response to Zaloga’s exercise of his First Amendment rights. Count II says that the Defendants violated the Plaintiffs’ substantive due process and Fourteenth Amendment rights by interfering with the Plaintiffs’ reputational, constitutional, and property rights. Finally, Counts III and IV allege that the Defendants conspired against the Plaintiffs in violation of both 42 U.S.C. § 1983 and state common law.

After completion of discovery, the Defendants moved for summary judgment. The District Court granted summary judgment on all counts against all Defendants, except for Counts I, III, and IV against Mercatili. As to Mercatili, the Court concluded that his assertion of qualified immunity hinged upon fact questions that would need to be settled by a jury.

Mercatili appealed.

IV. Discussion

Qualified immunity shields government actors from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v, Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Saucier v. Katz, the Supreme Court divided the analysis of qualified immunity into two parts: First, a court considering qualified immunity must ask whether the alleged facts, taken in the light most favorable to the injured party, “show [that] the [government officials conduct violated a constitutional right?’; second, the court must ask whether the right was clearly established “in light of the specific context of the case, [and] not as a broad general proposition.” 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Notwithstanding the sequence of the Saucier questions, federal courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity .analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Summary judgment based on qualified immunity should be granted when- “the law did not put the officer on notice that his conduct would be clearly unlawful.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. -.

Here, the District Court erred in its consideration of the second prong of the qualified immunity analysis. We therefore do not need to decide whether Mercatili’s actions could have violated Zaloga’s constitutional rights, and we decline to do so. Discussing the constitutionality of Mercati-li’s actions would require us to grapple with the tension between his First Amendment right to speak and Zaloga’s right to be free of government retaliation. Because the law does not clearly address how to harmonize those competing interests, thé second Saucier prong is not met and any analysis addressing the first prong would “be an essentially academic exercise,” Pearson, 555 U.S. at 237, 129 S.Ct. 808. The doctrine of constitutional avoidance counsels against unnecessarily wading into such muddy terrain. Cf id. at 241, 129 S.Ct. 808 (justifying resolving a dispute solely on the basis of the second prong due to “older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable[ ]” (internal quotation marks omitted)). We thus move directly to .an explanation of our conclusion with respect to the second prong of the qualified immunity analysis.

A. The “Clearly Established” Standard

The standard for qualified immunity is tilted in favor of shielding government actors and “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (internal quotation marks omitted). To defeat qualified immunity, the right purportedly violated must be so. clearly established that

every reasonable official would have understood that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate, This “clearly established” standard. >, .- ensur[es] that officials can reasonably ... anticipate when their conduct may give rise to liability for damages.

Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (emphasis added) (internal quotation marks, citations, and brackets omitted); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (explaining that, for the contours of a right to be clearly established,- “[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”).

Given that exacting standard, it is not surprising that some degree- of specificity in the law is required before a right is said to b& “clearly established;” The Supreme Court has repeatedly stressed that, for purposes of determining whether a right is so well settled as to defeat qualified immunity, it “must be established not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official[.]” Reichle, 132 S.Ct. at 2094 (internal quotation marks and citations omitted). Thus, in Reichle v. Howards, the Supreme Court rejected the plaintiffs argument that a right was clearly established merely because that Court’s precedent “settled the rule that, as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for his speech.” Id. at 2093-94 (internal quotation marks omitted). The Court explained that, in the fact scenario it faced, “the right in question is not-the general right to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause.” Id. at 2094 (emphasis added). We thus understand that the right should be framed in terms specific enough to put “every reasonable official” on notice of it, and the more specific the precedent, the more likely it is that a right will meet that threshold.

Especially in light of Reichle, it is not sufficient to conclude, as the District Court did in this case, that the Sécond Saucier prong is satisfied because there is a well-known “right against government retaliation for exercising one[’]s right to [free] speech....” (A34a.) That put the question of whether the “clearly established” standard had been met at much too high a level of abstraction. Instead, we must attend to context; we need to “consider the state of the existing law at the time of the alleged violation and the circumstances confronting [Mereatili] to determine whether a reasonable state . actor could have believed his conduct was lawful.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010).

B. Applying Precedent

Our opinion in McLaughlin v. Watson, 271 F.3d 566 (3d Cir. 2001)—which is the most analogous precedent with respect to Mercatili’s alleged actions—effectively pre-eludes Zaloga and Correctional Care from arguing that Mercatili’s actions violated clearly established law. The plaintiffs in McLaughlin were agents of the Pennsylvania Attorney General’s office who alleged (among other things) that the United States Attorney for the Eastern District of Pennsylvania had “acted administratively to influence the Pennsylvania Attorney General to take adverse employment-related action against them.” Id. at 572. Assuming arguendo that those allegations could constitute a First Amendment retaliation claim, id, at 572-73, we nevertheless concluded that they did not establish the violation of a clearly established right, explaining our reasoning, in part, as follows:

When a public official is sued for allegedly causing a third party to take some type of adverse action against plaintiffs speech, we have held that defendant’s conduct must be of a particularly virulent character. It is not enough that defendant speaks critically of plaintiff or even that defendant directly urges or influences the third party to take adverse action. Rather, defendant must “threaten” or “coerce” the third party to act.

Id. at 573 (emphasis added). We ordered dismissal of the case on the basis of qualified immunity. Id. at 574. McLaughlin thus suggests that a government official like Mercatili would not necessarily understand that mere political pushback could be unlawful.

In that same vein, we cited in McLaughlin, with approval, a decision of the United States Court of Appeals for the Fourth Circuit recognizing that, when a public official’s allegedly retaliatory acts “are in the form of speech,” the official’s “own First Amendment speech rights are implicated.” Id. at 573 (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000)). Mercatili’s First Amendment speech rights are likewise implicated here, and our cases do not provide government officials with clear guidance as to when a government official’s own speech can nevertheless constitute unconstitutional retaliation.

Also important to our analysis in McLaughlin was our prior decision in R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85 (3d Cir. 1984). In that case, the defendant borough council wrote to a third party, Citibank, urging it to remove certain commercial billboards and threatening to litigate if the billboards were not removed. Id. at 86-87. Citibank acquiesced, admitting that it was motivated, in part, by a desire to stay in the borough’s “good graces.” Id. at 87. Afterwards, the plaintiff, who had leased billboard space from Citibank, sued the borough for violating the First Amendment right to free expression. We concluded that the borough’s actions did not “coerce” the third party sufficiently to be a trigger of any constitutional violation. Id. at 89. In McLaughlin, we read the holding of R.C. Maxwell to mean that “strongly urging or influencing, but not ‘coercing!,]’ a third party to take adverse action affecting a plaintiffs speech did not violate plaintiffs constitutional rights.” 271 F.3d at 573. We did not elaborate on that distinction, nor did we provide specific examples of behavior that would cross the line from permissible influence to constitutionally impermissible coercion.

The present case, though, does not appear to involve coercion. Unlike the defendant’s threats in R.C. Maxwell, Mercatili’s efforts to pressure members of the Prison Board were not even coercive enough to achieve their desired effect. By Zaloga’s own admission, none of the Board members complied with Mercatili’s wishes by voting against renewal of the Borough’s contract with Correctional Care. Cf. Zherka v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (observing that in retaliation cases involving “speech against speech” there should be a “threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court”). Thus, even if we were to characterize Mercatili’s alleged statements to Prison Board members as a “threat” to withdraw political support, there is ample room to debate whether a reasonable official would have known that such threats, without any evident coercive power, were constitutionally out of bounds.4

Finally, it has never been established that a governmental official who does not himself retaliate but instead pressures another individual to retaliate—which is the position Mercatili is in—can be held personally liable. At least one of our sister circuits has held that there is no liability in such circumstances, see Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001) (observing that government officials “cannot be liable independently if they did not make the final decision”), and another has noted that this remains an unsettled question of law, see Trant v. Oklahoma, 754 F.3d 1158, 1170 n.5 (10th Cir. 2014) (observing that the Fifth Circuit has held that “only final decisionmakers may be liable” and noting that this is an unsettled question in the Tenth Circuit).

We conclude that legal precedent leaves space for good faith disagreement about the constitutionality of Mercatili’s alleged actions. Under the high standard for “clearly established” law, that is enough to defeat the Plaintiffs’ challenge to qualified immunity.

Y. Conclusion

For the foregoing reasons, we will reverse the District Court’s order denying Mercatili’s motion for summary judgment on the basis of qualified immunity and remand with instructions to enter judgment in his favor.

      . For purposes of summary judgment, we recount the facts as alleged by the plaintiffs, accepting them as true and drawing all factual inferences in their favor. Scheetz v. The Morning Call, Inc., 946 F.2d 202, 205 (3d Cir. 1991).

      . Zaloga is the sole shareholder of Correctional Care. Although Zaloga’s wife, Jeanne, continues to be listed as a plaintiff in the caption of this case, the District Court’s June 16, 2015 order dismissed her as a party and no one has contested that decision.

      . The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. “[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291....” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The qualified immunity question implicated in this case—namely, whether the law allegedly violated was "clearly established” at the time of the defendant's actions—is the type of legal issue immediately , appealable as a final decision. In re Montgomery Cty., 215 F.3d 367, 373-74 (3d Cir. 2000). Thus, we have appellate jurisdiction to consider that question at this stage of the proceedings. Our review of a district court’s grant or denial of summary judgment is plenary. Heffner v. Murphy, 745 F.3d 56, 65 (3d Cir. 2014). "To prevail on a motion for summary judgment, the moving party must demonstrate ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Interstate Outdoor Adver., L.P. v. Zoning Bd. of Twp. of Mount Laurel, 706 F.3d 527, 530 (3d Cir. 2013) (quoting Fed R. Civ. P. 56(a)).


author: WILKINSON, Circuit Judge:

text:
    Masoud SHARIF, Plaintiff-Appellant, v. UNITED AIRLINES, INC., Defendant-Appellee, and United Continental Holdings, Inc., Defendant. Metropolitan Washington Employment Lawyers Association; National Employment Lawyers Association, Amici Supporting Appellant.
    No. 15-1747
    United States Court of Appeals, Fourth Circuit.
    Argued: September 21, 2016
    Decided: October 31, 2016

      ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C., for Appellant. Hugh Scott Johnson, Jr., PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Stephen Z. Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington, D.C., for Amici Curiae. ON BRIEF: Andrea M. Downing, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C.; Richard T. Seymour, LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Washington, D.C., for Appellant. Angela H. France, PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Erik D. Snyder, LAW OFFICES OF ERIK D. SNYDER,' Washington, D.C.; Alan R. Rabat, BERNABEI & WACH-TEL, PLLC, Washington, D.C.; Matthew C. KosM, NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Oakland, California, for Amici Curiae.
    Before WILKINSON and FLOYD, Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.
   Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge FLOYD and Judge KEELEY joined.

WILKINSON, Circuit Judge:

Appellant Masoud Sharif brought suit against United Airlines, Inc., for retaliation under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (2012). The district court entered summary judgment on behalf of United Airlines and dismissed Sharif s claim. Even drawing all reasonable inferences in favor of Sharif as the nonmoving party, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), Sharif has failed to create an issue of triable fact that the explanation United Airlines provided for his discharge was a pretext for retaliation for taking FMLA leave. To hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.

I.

On March 16, 2014, Sharif and his wife travelled on vacation to Johannesburg and Cape Town, South Africa. Each was employed by United Airlines at Dulles Airport and had assembled roughly twenty days of time off from March 16 to April 4. Their time off did not include, however, a short two-day period from March 30 to 31 when Sharif was assigned to customer service work in the United Airlines lounge. Sharif placed his schedule on the United Airlines shift-swap website, and successfully found someone to cover his March 31 shift. He was unable, however, to find anyone to cover his March 30 shift.

Sharif had been diagnosed with an anxiety disorder in 2009, and United Airlines had approved his request to take intermittent leave under the FMLA to handle panic attacks. At 7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on March 30—the day of his scheduled shift— Sharif called United Airlines to take medical leave under the FMLA. He had not made' any advance reservations for a return flight. The next day, Sharif and his wife flew from Cape Town to Milan, Italy, where Sharif’s niece lived. On April 3, Sharif and his wife finally departed for Washington and arrived just in time for his wife’s next shift.

The United Airlines Employee Resource Center at Dulles Airport noticed that Sharif had taken FMLA leave for the only shift he was scheduled to work in the midst of his extensive time off and notified Kenneth Martin in-Human Resources. The Employee Resource Center also notified Martin that Sharif s time off coincided with his wife’s schedule except for March 30, and that Sharif had taken FMLA leave under similar circumstances in September 2013. Martin consequently began an investigation of Sharif s FMLA claim.

On April 23, 2014, Martin interviewed Sharif. Jon Connor, the United Airlines Area Manager, Elizabeth Tranium, Shar-ifs supervisor, and a representative from the International Association of Machinists and Aerospace Workers (“Workers Union”) were also present. When asked about his vacation and March 30 absence, Sharif sat in silence for a period of minutes before he gave a series of inconsistent answers. Sharif first replied that he was not scheduled to work on March 30, and when asked why he had taken FMLA leave if he did not have a shift, Sharif responded that he “d[id] not recall being out sick this day or calling out sick.” J.A. 344-45.

After another pause, Sharif clarified that he began trying to return home flying standby (as airline employees often do) beginning March 29 but was unable to find any available flights due to an international jazz festival in Cape Town and an impending pilot strike on Lufthansa. Sharif s story later evolved to claim he actually arrived at the airport on March 28 to begin looking for a flight, and that he and his wife obtained the additional days off in April to gather with family in Pittsburg for the Persian New Year. As a result of his repeated unsuccessful attempts to find any means to return to Washington in time for his shift, Sharif explained that he grew anxious and was eventually seized by a panic attack which then led to his use of FMLA leave. He could not remember if he or his wife had called United Airlines.

Martin and Connor both viewed Sharif s behavior and shifting explanations as evidence of dishonesty. Martin circulated an email to United Airlines senior management explaining that “[w]hen we questioned [Sharif], he was not truthful and told us initially that he didn’t have to work that day. He then changed his story many times. He had no intentions of being at IAD [Dulles] that day.” J.A. 376. Sharif was subsequently suspended without pay, pending further investigation.

United Airlines ultimately notified Sharif of its intention to discharge him for fraudulently taking FMLA leave and for making dishonest representations during the ensuing investigation. Such conduct was a violation of the United Airlines Working Together Guidelines, which clearly require that all employees “[b]e truthful in all communications, whether oral, written or electronic.” J.A. 264. Sharif was given a hearing on June 5, 2014, after which the Workers Union told Sharif he was likely to be fired and recommended that he retire. Sharif retired under threat of termination on June 9, 2014.

II.

Congress enacted the FMLA to “balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1),(2) (2012). In relevant part, Congress recognized that “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” Id § 2601(a)(4). Congress thus required employers to accommodate a limited amount of “intermittent” leave “when medically necessary” as certified by a health care provider. Id. §§ 2612(b), 2613; 29 C.F.R. §§ 825.202-05, 825.305-08 (2016) (defining requirements for intermittent leave). Congress intended the FMLA to accomplish these purposes “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3).

The FMLA provides that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” Id § 2615(a)(1). The substantive rights guaranteed by the FMLA are prescriptive, and a plaintiff seeking redress for employer interference with an entitlement. is only required to show that he or she qualified for the right that was denied. Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006).

The FMLA also provides that “[i]t shall be unlawful for any employer to discharge or in any manner discriminate against any individual for opposing any practice made unlawful by this subchap-ter.” 29 U.S.C. § 2615(a)(2). This limitation on employers is proscriptive. Yashenko, 446 F.3d at 546. To succeed on a claim of retaliation, a plaintiff must show “that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiffs protected activity.” Id. at 551 (quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)). Unlike prescriptive entitlement or interference claims, employer intent here is relevant. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998); Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000).

Intent .can be established either by direct evidence of retaliation or through the familiar burden shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973). Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013); Yashenko, 446 F.3d at 551. - Under the latter framework, a plaintiff must first produce sufficient evidence to establish a pri-ma facie case that the elements of retaliation are satisfied. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts to the employer to rebut the prima facie presumption of retaliation and provide “some legitimate, nondiscriminatory reason” for the adverse employment action. Id.; see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets this burden, the presumption of retaliation is dissolved and the plaintiff resumes the burden of persuading the factfinder that the employer’s proffered explanation is merely a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Burdine, 450 U.S. at 256, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. A plaintiff may satisfy this burden by showing either that the employer’s explanation is not credible, or that the employer’s decision was more likely the result of retaliation. Reeves, 530 U.S. at 143, 120 S.Ct. 2097; Burdine, 450 U.S. at 256, 101 S.Ct. 1089. In any event, the plaintiff must produce sufficient evidence to. create a genuine dispute of material fact such that a reasonable factfinder could conclude the adverse employment action was taken for an impermissible reason, i.e., retaliation. Reeves, 530 U.S. at 143, 148— 49, 120 S.Ct. 2097; Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742; Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

Sharif argues that United Airlines threatened to terminate his employment in retaliation for taking FMLA leave, a violation of the proscriptive provisions in 29 U.S.C. § 2615(a)(2). Sharif contends that he produced sufficient evidence for a reasonable jury to conclude that his use of FMLA leave was a protected activity and that he was constructively discharged as a result. United Airlines maintains that Sharif was discharged not only for fraudulently taking FMLA leave but also for being untruthful during the ensuing investigation in violation of the Working Together Guidelines. The main issue on appeal is whether Sharif has produced sufficient evidence of pretext to survive summary judgment.

III.

The summary judgment standard requires that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Fed. R. Civ. P. 56(a) (2016). Even drawing all reasonable inferences in Sharifs favor, Reeves, 530 U.S. at 150-51,120 S.Ct. 2097, he fails to meet this burden. Sharif fails to produce sufficient evidence for a reasonable factfinder to conclude that United Airlines’ explanation was a pretext for retaliation. He cannot rely upon “mere speculation or the building of one inference upon another” to establish that he was fired in retaliation for taking FMLA leave. Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). When disciplinary action is “based on little evidence of wrongdoing, a genuine issue might exist as to pretext,” but the evidence here plainly exceeds that threshold. See Laing, 703 F.3d at 722.

A.

Sharif claims that he travelled to South Africa with the intention of returning in time for his March 30 shift, but that he was unable to obtain a return flight despite persistent efforts beginning on March 28. He contends that a prominent international jazz festival, coupled with an impending pilot strike on Lufthansa, made it impossible to find any available seats on any airline returning to Washington. The pressure to find a flight and the prospect of missing work continued to build until Sharif suffered a panic attack and called United Airlines to take FMLA leave. Once the panic attack subsided, Sharif found a flight to Milan where his niece lived so that he and his wife would have a place to stay while they continued their attempt to return home.

Sharif then explains that he was unaware of the company investigation concerning his March 30 absence until he was spontaneously questioned on April 23. Sharif says he was unable to immediately recall the events of a specific day weeks earlier and thus could not immediately and accurately recount what happened. The situation was further complicated by the onset of another panic attack during what he describes as tantamount to an interrogation. However, Sharif provided the foregoing explanation once he was given the opportunity to compose himself and write a response.

This whole story runs into multiple problems. The undisputed evidence depicts an employee departing for vacation despite being scheduled to work, and then conveniently calling in FMLA leave 12 hours after the last plane departed that would allow him to return before his scheduled shift. Sharif also waited to contact United Airlines until the middle of the night in Washington when no one was present to answer the phone and ask for details about his FMLA claim. It is undisputed that he then visited his niece in Milan, and returned to Washington just in time for his wife’s next shift. When Sharif was later questioned about his use of FMLA leave, he first denied even being scheduled to work, and then provided a constantly-changing story about his attempt to return home. United Airlines requested receipts from the standby seats Sharif claimed to purchase in his unsuccessful attempts to find a- flight, but Sharif failed to produce them. In short, Sharif provided the company with no evidence to support his claim aside from his own shifting statements. It seems perfectly logical for United Airlines to conclude that Sharif did not want to interrupt his Cape Town vacation to come back for one day of work.

B.

In evaluating employer intent and the question of pretext, the district court may consider “among other things, the historical background of the ... decision; [t]he specific sequence of events leading up to the challenged decision; [departures from the normal procedural sequence; and ... [any] contemporary statements by members of the decisionmaking body.” See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 489, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)) (discussing factors that might indicate discriminatory intent). We initially note that United Airlines approved every one of Sharifs requests for FMLA leave. These requests totaled 56 days in the two years prior to his discharge and include FMLA leave after March 30. While United Airlines cannot retaliate against someone for exercising their rights under the FMLA, this is not the record of a company that is historically hostile to FMLA leave in any discernable way.

Sharif claims that the notification Martin received from the Employee Resource Center which triggered United Airlines’ investigation is actually direct evidence of retaliation. The email laid out how Sharif had taken FMLA leave for the only shift he was scheduled to work in the midst of his extensive time off, that his schedule coincided with his wife’s time off except for his shift on March 30, and that Sharif had taken FMLA leave under similar circumstances in September 2013. At a minimum, Sharif argues, this is evidence of pretext because he would not have been investigated and ultimately discharged but for taking FMLA leave.

We are unpersuaded. To begin with, the email from the Employee Resource Center relayed to Martin straightforward factual information, and such factual communication between human resources personnel is not, without more, evidence of discriminatory animus. Sharif also fails to understand that direct evidence must demonstrate that an adverse employment action was actually “due to ... FMLA leave as opposed to some other lawful reason.” Laing, 703 F.3d at 718 n.l; see also Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir.2006) (explaining that termination for “calling in FMLA for non-FMLA reasons” is not direct evidence of retaliation). Contrary to Sharifs contention, the proffered evidence suggests the same nondiscriminatory motivation that United Airlines has repeatedly advanced. Sharif was investigated and subsequently discharged for fraudulently taking FMLA leave, and then for making dishonest representations during the ensuing investigation in violation of the Working Together Guidelines. Unlike Sharifs shifting narrative, the company’s explanation for its action has remained- a consistent one.

Sharif then claims that United Airlines’ investigation was cursory and that failure to comply with established investigatory procedure is evidence of pretext. In response, United Airlines catalogues how it reviewed Sharifs work calendar, the time and place of his phone call to take FMLA leave, United Airlines flight records and whether Sharif had made any seat reservations. United Airlines also afforded Sharif the opportunity both to present his version of events and to prepare a written account with the subsequent assistance of a Workers Union representative, and finally requested that Sharif provide any documentation such as standby receipts that might support his story. Sharif retorts that United Airlines failed to properly verify his version of events by researching the validity, of his anxiety disorder and independently checking seat availability on other airlines flying out of Cape Town prior to March 30. He also argues that, above all, he^ was denied “a reasonable opportunity to consult” with his Workers Union representative before first meeting with Martin as required by the governing Collective Bargaining Agreement. See J.A. 254.

Although Sharif faults United Airlines for not conducting a more thorough investigation, “the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). United Airlines had no obligation to pursue additional investigation when it had more than ample reason to believe it had been lied to. And while failure to comply with established investigatory procedures might indeed be evidence of improper motive, Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555, it is not per se sufficient to create a genuine dispute as to pretext. A Workers Union representative was present at Sharif s meeting with Martin. Neither Sharif nor the Workers Union representative requested an opportunity to consult with one another, and Sharif fails to allege what.difference a consultation would have made.

Finally, Sharif contends that, while he would have been penalized for simply skipping his March 30 shift, he would not have been discharged. He claims- that the severity of the consequence he received is evidence of pretext. However, courts are not “a kind of super-personnel department weighing the prudence of employment decisions.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). Discharge is not disproportionate- to the offense of misrepresentation and fraud. As the Sixth Circuit has explained, an employer can “rightfully consider[ ] workplace disability fraud to be a serious issue.” See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 284 (6th Cir. 2012). It is inconsequential that missing work without providing notice normally merits a lesser penalty because those employees do not-violate the honesty component of the Working Together Guidelines.

C.

The FMLA serves the important purpose of allowing employees to take leave for legitimate family needs and medical reasons, but it is not a right that can be fraudulently invoked. Dishonest representations may carry additional risks in an airline charged with meeting large volume public demands and providing safe and efficient transportation services. These goals require predictable policies that ensure to the extent possible and consistent with the FMLA that proper personnel will be on duty. While a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused. As the Department of Labor explains, “[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s ... provisions.” 29 C.F.R. § 825.216(d).

So it is here. The evidence taken as a whole plainly paints the picture of an employee who , used FMLA leave to avoid interrupting his vacation, and then gave a variety of inconsistent explanations for his behavior upon his return. Sharif fails to meet his burden of showing that United Airlines’ explanation for his discharge was pretextual, and therefore fails to establish a genuine dispute of material fact suitable for trial.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

      . Sharif successfully bid for vacation leave on March 16-17, March 19-20, March 23-24, and March 26-27. United Airlines approved his request for personal holiday leave on April 2-3. Sharif's regular days off were scheduled for March 18, 21-22, 25, 28-29, April 1, and 4-5. In sum, he was not scheduled to (Continued) work from March 16 to April 5, except for shifts on March 30 and 31. Similarly, Sharif's wife arranged to have time off from March 16 to April 4.

      . The district court discussed, and the parties argued extensively, the application of a so-called "honest belief rule” that would require plaintiffs to show that their employers’ nondiscriminatory motivation was not sincerely held. See Sharif v. United Airlines, Inc., No. 1:14-CV-1294,, 2015 WL 4042173, at *6-7 (E.D. Va. July 1, 2015). We think the issues in this case are most profitably addressed through the well-established proof scheme of McDonnell Douglas and its progeny. Accordingly, we see no reason to address the "honest belief rule.”


author: THACKER, Circuit Judge:

text:
    Deborah H. RIPLEY, individually and as Administrator of the Estate of Bernard W. Ripley, deceased, Plaintiff-Appellee, and Bernard W. Ripley, Plaintiff, v. FOSTER WHEELER LLC; Foster Wheeler Energy Corporation, Defendants-Appellants, and J. Henry Holland Corporation; Waco, Incorporated; Metropolitan Life Insurance Company; Union Carbide Corporation; SB Decking, Inc., a/k/a Selby Battersby; Aurora Pump, Co; Imo Industries, Incorporated, as successor in interest to Delaval Pumps; Goulds Pumps, Incorporated; Ingersoll-Rand Company; Warren Pumps, Incorporated; Crane Company; Grinnell Corporation; The J.R. Clarkson Company, individually and as successor by mergers to Kunkle Industries, Inc.; Milwaukee Valve Company; Flowserve US, Inc., individually and as successor in interest to Rockwell Edward Valves and Vogt Valves; Spirax Sarco, Inc.; Armstrong International, Inc., individually and as a successor to Armstrong Machine Works, Defendants.
    No. 15-1918
    United States Court of Appeals, Fourth Circuit.
    Argued: September 22, 2016
    Decided: November 1, 2016

      ARGUED: Erik David Nadolink, Wheeler Trigg O’Donnell, LLP, Denver, Colorado, for Appellants. William Harty, Patten, Wornom, Hatten & Diamonstein, L.C., Newport News, Virginia, for Appellee. ON BRIEF: Anthony B. Taddeo, Jr., David M. Sturm, Matthew D. Joss, TaddeoSturm PLC, Richmond, Virginia, for Appellants. Robert R. Hatten, Hugh B. McCormick, III, Patten, Wornom, Hatten & Diamon-stein, L.C., Newport News, Virginia, for Appellee.
    Before TRAXLER, DIAZ, and THACKER, Circuit Judges.
   Reversed and remanded by published opinion. Judge THACKER wrote the opinion, in which Judge TRAXLER and Judge DIAZ joined.

THACKER, Circuit Judge:

Facing claims in Virginia state court for failing to warn of asbestos hazards in products manufactured for the Navy, Foster Wheeler LLC and Foster Wheeler Energy Corporation (“Appellants”) removed the ease pursuant to the federal officer removal statute to the United States District Court for the Eastern District of Virginia. The district court remanded to state court, citing longstanding precedent in the district that denies'the government contractor defense in failure to warn cases. Appellants timely appealed. For the reasons below, we reverse.

I.

From 1969 to 1972 and from 1974 to the late 1970s, Bernard W. Ripley worked as a boilermaker at Norfolk Naval Shipyard in Portsmouth, Virginia. He was diagnosed with malignant mesothelioma on February 24, 2014. On May 13, 2014, he and his wife, Deborah Ripley (“Appellee”), filed suit in the Newport News Circuit Court in Virginia, naming Appellants and others as defendants. The complaint alleges Mr. Ripley was exposed to asbestos contained in products Appellants manufactured for the Navy, and that Appellants are liable for failure to warn of asbestos hazards.

On June 16, 2014, Appellants filed a Notice of Removal in the United States District Court for the Eastern District of Virginia. Appellants asserted a government contractor defense, arguing that the suit stemmed from Appellants contract with the Navy to construct boilers and related equipment, and that removal is thus proper pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

On August 6, 2015, the district court granted Appellee’s motion to remand, following a decades-old practice in the district that denies the government contractor defense in failure to warn cases. Because the defense did not apply, the court reasoned, Appellants could not establish the colorable federal defense necessary to support federal officer removal, thereby precluding federal subject matter jurisdiction.

On August 8, 2015, Appellant filed a Notice of Appeal, urging this court to overturn the district court’s remand order.

II.

We review de novo issues of subject matter jurisdiction, including removal. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004) (en banc) (quoting Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999)). Denial of the government contractor defense in failure to warn cases is also an issue of law we review de novo. See Warfaa v. Ali, 811 F.3d 653, 658 (4th Cir. 2016).

t—i HH

The federal officer removal statute allows a defendant to remove a case from state to federal court if the defendant establishes (1) it is a federal officer or a “person acting under that officer,” 28 U.S.C. § 1442(a)(1); (2) a “colorable federal defense”; and (3) the suit is “for a[n] act under color of office,” which requires a causal nexus “between the charged conduct and asserted official authority,” Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (alteration and emphasis in original) (citation and internal quotation marks omitted). Section 1442 is thus an exception to the well-pleaded complaint rule, which, absent diversity, prohibits removal unless a federal question appears on the face of the plaintiffs complaint. See Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir. 1994) (citing Mesa v. California, 489 U.S. 121, 136-37, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989)).

The Supreme Court has recognized that “[o]ne of the primary purposes” of federal officer removal is to provide a federal forum for a federal defense. Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). Proof of a “colorable” federal defense thus does not require the defendant to “win his case before he can have it removed” nor even establish that the defense is “clearly sustainable.” Id.

Here, Appellants sought removal pursuant to § 1442 by asserting the government contractor defense as elucidated in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). In Boyle, the Supreme Court announced that design defects in military equipment do not give rise to state-law tort claims if, “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” 487 U.S. at 512, 108 S.Ct. 2510. The defense only applies if a contractor’s obligations to the government conflict with state law such that the contractor may not comply with both. See id. at 507-09, 108 S.Ct. 2510.

The rationales behind the defense are twofold. First, given the complexities of military decision making and the constitutional delegation of the war powers to the legislative and executive branches, separation of powers suggests the judiciary should hesitate to intervene in matters of military procurement contracts. See Tozer v. LTV Corp., 792 F.2d 403, 405-07 (4th Cir. 1986). Seqond, as a practical matter, a higher risk of liability for government contractors would increase costs to the government while decreasing the supply of contractors and research and development in military equipment. Id. at 407-08.

We must therefore decide whether the Supreme Court’s pronouncement in Boyle, holding the government contractor defense applicable in design defect cases, likewise shields defendants against failure to warn claims and thus provides a basis for federal jurisdiction.pursuant to § 1442.

In this case, given “the thousands of asbestos cases that have preceded” it in the Eastern District of Virginia, the district court “determined that the government contractor defense is not available in failure to warn cases.” McCormick v. C.E. Thurston & Sons, Inc., 977 F.Supp. 400, 403 (E.D. Va. 1997) (internal quotation marks omitted).

However, the Eastern District of Virginia is clearly an outlier in this regard. No other jurisdiction in the country to have considered the issue is in accord with the Eastern District of Virginia. Indeed, the Second, Fifth, Sixth, Seventh,' Ninth, and Eleventh Circuits have all applied the defense to failure to warn cases. See e.g., In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629-30 (2d Cir. 1990); Perez v. Lockheed Corp. (In re Air Disaster at Ramstein Air Base, Germany, on 8/29/90), 81 F.3d 570, 576 (5th Cir.), modified on other grounds, 88 F.3d 340 (5th Cir. 1996) (per curium); Tate v. Boeing Helicopters (Tate II), 140 F.3d 654, 656 (6th Cir. 1998); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996); Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 749-50 (9th Cir. 1997); Dorse v. Eagle-Picher Indus., Inc., 898 F.2d 1487, 1489 (11th Cir. 1990). And although we have not yet had the opportunity to consider this issue directly, we have recognized that these decisions of our sister circuits are “reasoned soundly.” Emory v. McDonnell Douglas Corp., 148 F.3d 347, 350 (4th Cir. 1998) (collecting cases). Moreover, the multidistrict litigation court for asbestos products—tasked with handling thousands of-such claims—has also applied the defense and allowed removal on this basis in failure to warn cases. See e.g., Hagen v, Benjamin Foster Co., 739 F.Supp.2d 770, 777-86 (E.D. Pa. 2010).

In addition to the multitude of authorities adopting this approach, the rationales identified in Boyle remain applicable in failure to warn cases. Just as decisions on military equipment design involve complex cost-benefit analyses in which lay juries and judges are not versed, military procurement, contracts and specifications involve manifold warning and labeling requirements inapplicable to nonmilitary equipment. Cf. Tozer, 792 F.2d at 405-07 (applying government contractor defense in design defect case). Moreover, the constitutional separation of the judiciary from military matters carries no less force with respect to the design of military equipment than it does with respect to the warnings accompanying such equipment. Further, whether the risk of liability flows from design defect or failure to warn, the effect remains the same: government contractors willing to take such a risk will pass the increased cost to the government and will invest less in research and development. Cfi id. at 407-08.

Given the weight of opposing precedent and the rationales supporting the defense^ we now join the chorus and hold that the government contractor defense is available in failure to warn cases. Having established this, we leave it to the district court to decide whether Appellants have presented sufficient proof to warrant removal pursuant to § 1442.

IV.

For the foregoing reasons, we reverse and remand for further proceedings.

REVERSED AND REMANDED

      . Mr. Ripley died on November 14, 2014; the court substituted Appellee as administratrix of Mr. Ripley’s estate on March 18, 2015.

      . Of note, this issue only recently became appealable. In 2011, Congress amended 28 U.S.C. § 1447(d) to allow appeals from remand orders pursuant to § 1442. See Removal Clarification Act of 2011, Pub. L. No. 112— 51, 125 Stat. 545, 546 (2011).