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ICC files legal action again

CodeWarrior

CodeWarrior

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ICC-ES has a new leader, David Tompos. But they haven't changed tactics and filed another lawsuit, this one against DrJ. DrJ issues code reports on certain types of building products, and has likely taken work from ICC-ES.

Among other grievances, The lawsuit alleges a document "Product Approval Checklist for Code Officials” offered by DrJ, is being falsely represented as prepared by ICC.

Now, such a document might be welcomed by code officials but ICC seems to have no interest in providing such a document. At least the press release doesn't say they have done so. ICC could have said, okay, we disown the checklist DrJ has, but here is our resource for building officials.

Anyway, you can still obtain the checklist from DrJ before it disappears.


www.phcppros.com

International Code Council Files Lawsuit Against DrJ Engineering

The lawsuit asserts trademark infringement and false advertising.
www.phcppros.com
 
Did you look at the checklist? I found it after a quick google search.

The only visual identifier used on it is the ICC logo.

Honestly, I'm not sure who would be in need of this checklist. It's very basic.
 
WOW!

I had never heard of DrJ. Now that I have, my opinion is (per Monty Python), "RUN AWAY!"

I just pulled up their product approval for a paint-on fire-retardant for wood. It's full of verbiage and it purports to represent that the product meets the IBC. Reading deeper, what they actually say is (to paraphrase) "This stuff can be accepted by code officials under their authority to approve new and alternate materials per IBC section 1702."

In essence, then, the entire report isn't an objective report of a test of the material under any recognized ASTM or other standard, it's an engineering judgment. And then the report goes on to try to scare code officials into NOT accepting it:

Should there be an issue with respect to the “approval of use” of this alternative material using an alternative method of FRT manufacturing, any disapproval shall be based upon specific provisions of adopted legislation and shall be provided in writing stating the reasons why the alternative was not approved with reference to any legislation or regulations that have been violated.
DrJ is unaware of any additional legislation or regulations that relate to the approval of TW4400. Based on this professional engineering analysis, TW4400 meets all of the requirements that have been adopted into law and is approved for use where regulations require the use of an FRTW.
Click to expand...

This is just legalese BS, intended to frighten an unwary code official into accepting something that hasn't been fully tested in accordance with recognized test procedures by an accredited testing laboratory. Our authority to approve new and alternate materials actually derives from IBC section 104.11, which says:

[A] 104.11 Alternative materials, design and methods of
construction and equipment. The provisions of this code are
not intended to prevent the installation of any material or to
prohibit any design or method of construction not specifically
prescribed by this code, provided that any such alternative has
been approved. An alternative material, design or method of
construction shall be approved where the building official
finds that the proposed alternative meets all of the following:

1. The alternative material, design or method of construction
is satisfactory and complies with the intent of the
provisions of this code,
2. The material, method or work offered is, for the purpose
intended, not less than the equivalent of that prescribed
in this code as it pertains to the following:
2.1. Quality.
2.2. Strength.
2.3. Effectiveness.
2.4. Fire resistance.
2.5. Durability.
2.6. Safety.

Where the alternative material, design or method of construction
is not approved, the building official shall respond in
writing, stating the reasons why the alternative was not
approved.
Click to expand...

So we can accept an engineering judgment (we've been accepting EJs for decades -- when they come from trusted sources), but the proposed alternate material has to satisfy ALL of the criteria listed in IBC 104.11. And, in rejecting a proposed alternative material, we do NOT have to cite any "reference to any legislation or regulations that have been violated."

As for their checklist -- now that I've seen it, I don't need it. Those are all the things I automatically look for when reviewing an ICC-ES report anyway.
 
Yankee Chronicler said:
And, in rejecting a proposed alternative material, we do NOT have to cite any "reference to any legislation or regulations that have been violated."
Click to expand...
That language did come in at one point/ code cycle as they are trying to get us to approve more and more with less and less guidance or access to standards....

2024 IBC:

[A] 104.2.3.2 Application and disposition.​

Where required, a request to use an alternative material, design or method of construction shall be submitted in writing to the building official for approval. Where the alternative material, design or method of construction is not approved, the building official shall respond in writing, stating the reasons the alternative was not approved.
 
Well, the checklist mentions accreditations, which is not a code requirement per se, but the code official should have an objective method for accepting reports. LA CIty Now requires accredited agencies per their latest code, and perhaps other jurisdictions have something similar.
 
Yankee Chronicler said:
WOW!

I had never heard of DrJ. Now that I have, my opinion is (per Monty Python), "RUN AWAY!"

I just pulled up their product approval for a paint-on fire-retardant for wood. It's full of verbiage and it purports to represent that the product meets the IBC. Reading deeper, what they actually say is (to paraphrase) "This stuff can be accepted by code officials under their authority to approve new and alternate materials per IBC section 1702."

In essence, then, the entire report isn't an objective report of a test of the material under any recognized ASTM or other standard, it's an engineering judgment. And then the report goes on to try to scare code officials into NOT accepting it:



This is just legalese BS, intended to frighten an unwary code official into accepting something that hasn't been fully tested in accordance with recognized test procedures by an accredited testing laboratory. Our authority to approve new and alternate materials actually derives from IBC section 104.11, which says:



So we can accept an engineering judgment (we've been accepting EJs for decades -- when they come from trusted sources), but the proposed alternate material has to satisfy ALL of the criteria listed in IBC 104.11. And, in rejecting a proposed alternative material, we do NOT have to cite any "reference to any legislation or regulations that have been violated."

As for their checklist -- now that I've seen it, I don't need it. Those are all the things I automatically look for when reviewing an ICC-ES report anyway.
Click to expand...
HAHAHA. I like how they try to force a requirement on building officials.
 
steveray said:
That language did come in at one point/ code cycle as they are trying to get us to approve more and more with less and less guidance or access to standards....

2024 IBC:

[A] 104.2.3.2 Application and disposition.​

Where required, a request to use an alternative material, design or method of construction shall be submitted in writing to the building official for approval. Where the alternative material, design or method of construction is not approved, the building official shall respond in writing, stating the reasons the alternative was not approved.
Click to expand...

Yes, the code requires the BO to state the reason for disapproval -- and it should. But the code does NOT require that "any disapproval shall be based upon specific provisions of adopted legislation ... "
 
Yankee Chronicler said:
Yes, the code requires the BO to state the reason for disapproval -- and it should. But the code does NOT require that "any disapproval shall be based upon specific provisions of adopted legislation ... "
Click to expand...
At some point there was a proposal for some ugly "how dare the BO question me the all powerful designer" language proposed and maybe we got it beat down...Between skipping cycles (2018) and working in/on everything from 2021 to 2027 now...I'm getting blurry....
 
steveray said:
At some point there was a proposal for some ugly "how dare the BO question me the all powerful designer" language proposed and maybe we got it beat down...Between skipping cycles (2018) and working in/on everything from 2021 to 2027 now...I'm getting blurry....
Click to expand...

Considering that it's our JOB to question the almighty designer, that's a rather scary proposal.
 
A problem we often encountered before I retired is that the IBC requires NFPA 285 testing for many exterior wall assemblies. The NFPA 285 test is product-specific, so you can't substitute an identical product by another manufacturer without a code modification. DrJ reports were one way of showing they were equivalent. The state building code official didn't blindly accept their evaluation, but would only accept equivalent products that had passed NFPA 285 testing in a similar assembly.
 
This is interesting in that the Building Official Checklist is an ICC document and can be found on https://my.iccsafe.org/product-approval-checklist.
1721489029727.png
The most credible firm providing certification are ANAB cerfified which LA now using for professional vetting.

Directory Listings Accredited

anabpd.ansi.org anabpd.ansi.org
A few questions:
  1. Is ICC-ES on the ANAB 17065 list?
1721487756382.png

  1. Is UL on the ANAB 17065 list?
1721487848095.png

  1. Is DrJ on the ANAB 17065 list?

1721487945640.png

Final questions, do any of the folks on the ANAB product certification list also stand behind their work through a professional engineer signing and sealing it?

If any do so, then does that not reduce a city's liability, given that there is a delegated engineer providing support of product efficacy and likely professional liability insurance?

This seems like it would be very similar to a professional engineering seal on a truss design drawing, correct?

Can you get signed and sealed design values for lumber, OSB, plywood and/or Simpson connectors to name a few that many view as credible? Are they?

You can for trusses. Why trusses and not lumber, they both provide structural resistance?

Just a few ideas to explore and direct evidence/facts to consider.
 
Last edited:
Since this is an active lawsuit, I am going to caution everyone to tread lightly on this subject, especially since we have people very close to the lawsuit now registering here for a posting, potentially with an agenda. Let's break down this lawsuit so everyone knows what is in the filing. If you are going to register here and post, the better option would have been to not start out of the gate presenting a case to the public on an active lawsuit. The Building Code Forum (TBCF) does not have a horse in this race, and any posts here by registered members are their own opinion and not the opinion of TBCF.

Summary of the Lawsuit: International Code Council, Inc. and ICC Evaluation Service, LLC v. DrJ Engineering, LLC​

Parties Involved:
  • Plaintiffs: International Code Council, Inc. (ICC) and ICC Evaluation Service, LLC (ICC-ES)
  • Defendants: DrJ Engineering, LLC, a Wisconsin limited liability company, and DrJ Engineering, LLC, an Illinois limited liability company (collectively referred to as "DrJ")
Court and Case Number:
  • United States District Court for the Northern District of Illinois
  • Civil Action No. 1:24-cv-4998
Nature of the Action:
  • The lawsuit is filed by ICC and ICC-ES against DrJ for trademark infringement, false advertising, and unfair competition under the Lanham Act and common law, along with related violations of Illinois law.
  • ICC alleges that DrJ has willfully caused confusion among consumers by unauthorized use of ICC’s trademarks and false advertising, harming ICC's business, reputation, and goodwill.
Key Allegations:
  1. Trademark Infringement: DrJ allegedly used ICC’s trademarks without authorization in a manner likely to cause consumer confusion regarding the approval, association, or endorsement of DrJ’s products and services by ICC.
  2. False Advertising: DrJ is accused of making false claims about its products being “ICC-Approved” and using terms like “ICC Approved” and “ICC Accepted,” which ICC asserts are misleading.
  3. Unfair Competition: DrJ’s actions, including false claims and unauthorized use of ICC’s trademarks, allegedly constitute unfair competition, damaging ICC’s reputation and misleading consumers.
  4. Specific Misconduct: DrJ is accused of using ICC’s trademarks on documents and promotional materials, creating the false impression that ICC has created or endorsed certain checklists and procedures used by DrJ.
Relief Sought by Plaintiffs:
  • Injunctive Relief: Plaintiffs seek a preliminary and permanent injunction to stop DrJ from using ICC’s trademarks, making false claims, and misleading consumers.
  • Damages: Plaintiffs seek damages including DrJ’s profits resulting from the alleged unlawful acts, treble damages, and punitive damages for willful and intentional misconduct.
  • Corrective Measures: Plaintiffs request that DrJ issue corrective statements and remove any infringing or misleading content from its materials and websites.
  • Legal Fees: Plaintiffs seek reimbursement of attorneys’ fees and costs associated with the lawsuit.
Legal Grounds:
  • Lanham Act Violations: Trademark infringement (15 U.S.C. § 1114), false designation of origin, and false advertising (15 U.S.C. § 1125(a)).
  • Illinois State Law Violations: Illinois Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq.) and Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.).
  • Common Law Unfair Competition: Claims under Illinois common law.
Conclusion:The plaintiffs, ICC and ICC-ES, assert that DrJ's unauthorized use of ICC’s trademarks and false advertising has caused significant harm to their reputation, business, and consumer trust. They seek both injunctive relief to prevent further misuse and monetary compensation for damages incurred. The case highlights the importance of trademark protection and honest advertising practices within the building code and product evaluation industry.
 

[A] 104.2.3.2 Application and disposition.​

Where required, a request to use an alternative material, design or method of construction shall be submitted in writing to the building official for approval. Where the alternative material, design or method of construction is not approved, the building official shall respond in writing, stating the reasons the alternative was not approved.

Wayne Jewell, a building official in Michigan and a frequent ICC code development moderator, wrote the last sentence with 2 other professionals many years ago -- mid 2000s.
Wayne's point was that building officials and professional engineers should be teammates. If the professional building official provides the reason for error in reading and comprehending the law that should be properly enforced, a professional engineer can understand it and cure the error. This makes working relationships valuable because there is mutual learning and quite fun.
 
Free&Fair said:

[A] 104.2.3.2 Application and disposition.​

Where required, a request to use an alternative material, design or method of construction shall be submitted in writing to the building official for approval. Where the alternative material, design or method of construction is not approved, the building official shall respond in writing, stating the reasons the alternative was not approved.

Wayne Jewell, a building official in Michigan and a frequent ICC code development moderator, wrote the last sentence with 2 other professionals many years ago -- mid 2000s.
Wayne's point was that building officials and professional engineers should be teammates. If the professional building official provides the reason for error in reading and comprehending the law that should be properly enforced, a professional engineer can understand it and cure the error. This makes working relationships valuable because there is mutual learning and quite fun.
Click to expand...

A couple of points:

  1. The sports analogy ("teammates") is a false analogy. The architect, the consulting engineers, and (if there is one) the professional code consultant are members of the design team. The contractor and subcontractors are members of a team, but it's a different team than the design team. Code officials and inspectors are not members of either the design team or the construction team. If anything, the code officials are more akin to the referees or umpires, keeping an eye on the progress of the "game," and throwing a red flag when they see a rule being violated.
  2. I do not understand this sentence: "If the professional building official provides the reason for error in reading and comprehending the law that should be properly enforced, a professional engineer can understand it and cure the error." What does this mean, and how does an error in reading a law in any way apply to a building official's decision to approve or disapprove a request to use a new and alternative material or method of construction?
As a regulation adopted pursuant to statute, the building code IS law. Where an alternative material or method is proposed, there is no question of the "law" (the code) not being understood. The material or method is not addressed by the code, therefore the code grants the AHJ the authority to review and to approve or reject an alternative. If the material or method were satisfactory under the code (the "law"), the design professional wouldn't be submitting a request to approve it as an alternative. The code doesn't say the AHJ must approve something just because a design professional submits it. It only says the code official shall state in writing his reasons for not approving. All that's required is for the code official to write "I don't think the documentation submitted demonstrates to my satisfaction that this new gizmo will perform as well as or better than the doohickey that the code calls for. Request denied."
 
Mark K said:
The provisions for alternate means and methods only apply if the designer first proposes an alternate
Click to expand...
Agree. Alternative means and methods are presented to the Building Department, not by them. There is not always a design professional of record on every job, so sometimes, the contractor or permit applicant is the one proposing an alternative means and method.
 
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