Judge saws off class action vs Home Depot over size of 4x4s, other lumber

By Scott Holland | Mar 13, 2018

A federal judge has cut short a federal class action complaint accusing Home Depot of selling undersized lumber.

In an opinion issued March 12 in Chicago, U.S. District Judge Sharon Johnson Coleman dismissed the complaint of plaintiff Mikhail Abramov, an Illinois resident who in March 2017 filed a complaint alleging the retailer’s practice of listing lumber according to its “nominal dimensions” amounted to little more than false advertising, allowing Home Depot and other retailers to shortchange customers the lumber they expected to receive for the price paid.

Coleman first noted Home Depot initially challenged Abramov’s standing and the court’s subject matter jurisdiction, but conceded the issue during oral arguments in light of Judge Edmond E. Chang’s September ruling in Fuchs v. Menard, Inc., also in Chicago federal court, in which Menards faced its own complaint over dimensional lumber.

Turning to the allegation itself, Coleman said the truthfulness of the labels Abramov cited in his complaint “cannot be reasonably disputed. Numbers are an abstract concept; they only gain physical meaning when they are paired with a corresponding unit of measurement describing what is being measured.”

Rodney L. Lewis   Polsinelli P.C.

At issue is lumber advertised four inches wide by four inches high and six feet long, labeled as 4x4x6’. Abramov said when he measured the lumber piece at home, its actual dimensions were 3.5x3.5x6, but Coleman said Home Depot only used the prime indicator following the numeral 6, indicating the piece was indeed six feet long, but “the notation ‘4x4,’ by contrast, has no unit of measure and therefore cannot be read as describing a physical dimension.”

Chang had likewise noted labels on lumber sold at Menards did not include “inch-mark symbols after the customary trade names of lumber pieces. Rather, only the total length of the piece of lumber has any kind of dimension symbol, which is set off from the name of the product, indicating a switch from a nominal descriptor to one of size.”

Abramov argued the label, even if true, is misleading, but Coleman said his allegations only suggest potential confusion and not intentionally misleading so as to violate the Illinois Consumer Fraud Act.

“The few cases which have found a true statement to be actionable under ICFA have all involved a facially obvious omission or deception as to a material fact,” she wrote. “Here, at most, Abramov has alleged that the product label in question is ambiguous and that it might confuse consumers as to a material fact.”

Coleman also noted Abramov had access to the lumber piece before he bought it, further weakening his position the label was misleading. She likewise explained he failed to state a claim for breach of express warranty because “Home Depot never expressly represented through the product labels at issue here that the board in question actually measured four inches by four inches.”

She then explained Abramov also fell short in trying to allege a violation of Illinois’ implied warranty of merchantability. It was a four-by-four, in so far as the industry defines, and therefore could be legally sold as labeled. His unjust enrichment claim also failed, Coleman noted, because it was premised on allegations of fraudulent representations she had already deemed insufficient.

Coleman dismissed the complaint with prejudice.

Home Depot was represented by attorneys Rodney L. Lewis and Colleen S. Walter, with the firm of Polsinelli P.C., of Chicago, and Jennifer Virostko and S. Stewart Haskins II, of King & Spalding LLP, of Atlanta. 

Abramov’s attorneys are Yevgeniy Y. Turin and David L. Gerbiewith McGuire Law P.C., of Chicago.

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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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