Judge cuts short class action vs Menards over lumber sizes; could impact similar suit vs Home Depot

By Jonathan Bilyk | Oct 6, 2017

A Chicago federal judge has sawed off a class action aimed at one of the Chicago area’s largest big box home improvement chains, saying Menards didn’t unjustly save big money by selling 4x4s and other pieces of lumber that don’t measure up their names.

A Chicago federal judge has sawed off a class action aimed at one of the Chicago area’s largest big box home improvement chains, saying Menards didn’t unjustly save big money by selling 4x4s and other pieces of lumber that don’t measure up their names.

And this decision could also carry weight in a similar class action lawsuit, also over lumber sizes, still pending in Chicago federal court against Menards’ competitor, The Home Depot.

On Sept. 29, U.S. District Judge Edmond Chang dismissed “across the board” all counts of the prospective class action brought by the firm of McGuire Law P.C., of Chicago, on behalf of named plaintiffs Michael Fuchs and Vladislav Krasilnikov against Menard Inc.

The lawsuit, filed on March 3, alleged the retailer’s practice of listing lumber according to its “nominal dimensions” amounted to little more than false advertising, allowing Menards and other home improvement retailers to nail customers, misleading them into paying more for the lumber than they otherwise should have.

Specifically, the plaintiffs said they bought specific pieces of lumber at the Menards store in north suburban Gurnee, but the pieces didn’t measure up to the dimensions they asserted the label would lead consumers to believe they are receiving.

In this case, for instance, they said a 4x4 Douglas fir lumber piece actually measured 3.5 inches by 3.5 inches.

However, Judge Chang chopped up those claims, saying Menards, and, likely, by extension, competing home improvement stores, should not be made to pay for widely accepted industry lumber labeling practices, under which lumber is sold, not by actual size, but using generally accepted names for the lumber pieces, such as 2x4, 4x4 and 1x6.

He noted those standards are also accepted by such organizations as the National Institute for Standards and Technology, which operates under the U.S. Commerce Department and sets standards for the sale of goods in various industries, including building materials and lumber.

NIST’s standards “explicitly distinguish the lumber’s product name—that is, its ‘nominal size’—from the ‘actual sizes’ of pieces, explaining that nominal sizes are ‘customary dimensions’ based on the ‘dimensions of rough lumber before surfacing,’” Chang wrote.

If NIST “actually recognizes the hardware industry’s practice of labelling lumber producst with a ‘nominal’ size that is not the lumber’s actual size,” the judge said he believes plaintiffs would face a rough time trying to build their case on a contrary position.

“Without a literally untrue statement, combined with the government-recognized distinction between nominal sizes and actual sizes, no reasonable consumer would think that the labels showed the exact dimensions of the lumber,” Chang said.

The judge further likened the case to a decision tossing out a lawsuit recently brought against coffee seller Starbucks over the amount of ice in its iced coffee drinks. In that case, a plaintiff had attempted to sue Starbucks for charging a certain amount for a 24-oz. coffee drink, without actually delivering 24 ounces of coffee. In rejecting that case, a judge said no reasonable consumer would expect they were “literally” getting 24 ounces of coffee, plus ice.

“Similarly here, the Plaintiffs see labels that do not have dimensional-size markings, based on a published distinction recognized by the Institute, and the Plaintiffs have direct and complete access to the information needed to determine the height and width of the lumber,” Judge Chang wrote.

He dismissed all claims with prejudice.

Menards was represented in the case by the firm of Drinker Biddle & Reath LLP, of Chicago.

Shortly after that case was dismissed, attorneys defending Home Depot against a similar lawsuit asked the judge hearing their case to take notice of the decision and consider it when deciding Home Depot’s own motion to dismiss a class action over lumber sizes also brought by McGuire Law. That case was filed on behalf of named plaintiff Mikhail Abramov.

Earlier this summer, Home Depot had also argued the action should be dismissed, as Home Depot merely sold its lumber under terms accepted within the construction and hardware retail industries.

Home Depot is represented in that action by attorneys with the firms of Polsinelli P.C., of Chicago, and King & Spalding LLP, of Atlanta.

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Organizations in this Story

Drinker Biddle & Reath LLP King & Spalding LLP McGuire Law PC Polsinelli PC The Home Depot U.S. District Court for the Northern District of Illinois

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