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In the wake of attempted class action lawsuits aimed at some of the country’s biggest home improvement stores over the size of lumber pieces they sell, a flooring seller has now become the latest class action target, as a new lawsuit claims they sell ceramic and glass tiles that allegedly don’t quite measure up to the dimensions listed on the tag and packaging.

On Nov. 8, attorney Eugene I. Turin Sr., of Deerfield, filed suit in Cook County Circuit Court on behalf of named plaintiff Nicky Fuchs against retailer Floor and Décor.

In her lawsuit, Fuchs alleges Floor and Décor misled her and other customers, leading them to pay more for certain tiles than they believed they were getting for the money.

The complaint focuses on certain tiles sold by the retailer, which the label lists as 12 inches by 24 inches.

In reality, the tiles are slightly smaller, measuring 11-3/4 inches by 23-9/16 inches, the complaint alleged.

“Being the wholesale buyer and the retail seller of the product, Defendant (Floor and Décor) knew or should have known that the product’s actual size was materially smaller than the size displayed on the shelf labels and the product packaging,” the lawsuit asserts.

In her complaint, Fuchs alleges she bought 16 of those tiles from the Floor and Décor store in suburban Skokie in March, later learning the tiles were smaller than the dimensions listed on the packaging. She asserts this means she essentially was charged for 11 square inches of tile she never received.

The lawsuit is similar to others brought earlier this year against home improvement retail giants Home Depot and Menards over the lumber sold by those stores, which similarly measures slightly less than the dimensions listed on the label. For instance, a lumber piece listed as a 2x4 may actually measure only  1.5” x 3.5.” Plaintiffs in those cases said this means they are being cheated.

Plaintiffs in those cases were represented by attorneys Yevgeniy Y. Turin, Evan M. Meyers and David L. Gerbie, of McGuire Law P.C., in Chicago. Named plaintiffs in those cases include Mikhail Abramov, who filed suit against Home Depot, and Michael Fuchs and Vladislav Krasilnikov, who sued Menards.

It is unclear from court documents if Michael Fuchs is related to the Nicky Fuchs who has similarly sued Floor and Décor.

Home Depot and Menards have fought the cases, arguing they are being punished for merely selling products under a common industry practice of listing those pieces by their nominal dimensions, even if their actual dimensions don’t precisely correspond.

The case against Home Depot is pending. But in September, U.S. District Court Judge Edmond Chang dismissed the action against Menards.

“It would be one thing if packaging prevented access to the height and width, or if the disputed characteristic of the product was not readily accessible, like the R value of insulation … or the percentage of biodiesel in a fuel container,” Judge Chang wrote in his Sept. 29 decision. “It is another thing where the Plaintiffs can readily see if there is a mismatch between what they perceive as the size on the label and the height and width of the lumber.”

The plaintiffs have appealed that decision to the U.S. Seventh Circuit Court of Appeals in Chicago.

In the action against Floor and Décor, as in the Home Depot and Menards cases, the plaintiffs said the arguments over nominal size shouldn’t matter, as packaging and labels “did not contain any notices or warnings that the advertised dimensions were ‘nominal’ dimensions.”

“Plaintiff … relied on Defendant’s representations as to its products’ dimensions as they purchased Defendant’s tile products, and specific quantities thereof, to cover a specific intended square footage,” Fuchs’ lawsuit said. “Plaintiff … would not have purchased Defendant’s tile products had they known the Defendant’s representations as to the dimensions of these products were false and misleading.

The lawsuit seeks to expand the action to include everyone in Illinois who bought such tile products from Floor and Décor “where said actual dimensions were smaller than advertised.”

In her lawsuit, Nicky Fuchs has asked the court to award actual and compensatory damages, plus attorney fees.

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Cook County Circuit Court McGuire Law PC U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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