Antitrust Law Daily Wrap Up, ADVERTISING—M.D. Pa.: Claims against Shop-Vac for misrepresenting vacuums dismissed, (Aug 13, 2013)
Organizations Mentioned:Home Centers, Inc. | Loeb & Loeb, LLP | Lowe's | Lowe’s Home Centers, Inc. | Shop Vac Corp. | Shop-Vac Corporation
By Jody Coultas, J.D.
Vacuum purchasers could not state claims under the consumer protection statutes of all states except New Jersey against vacuum manufacturer Shop-Vac Corporation and retailer Lowe’s Home Centers, Inc. for allegedly misrepresenting the qualities and characteristics of Shop-Vac wet/dry vacuums, the federal district court in Harrisburg has held (In re: Shop-Vac Marketing and Sales Practices Litigation, August 9, 2013, Kane, Y.).
Shop-Vac allegedly misrepresented that its wet-dry vacuums were capable of reaching a peak horsepower that was impossible to obtain with a standard electrical outlet, and misrepresented the capacity of the vacuum tanks. Lowe’s exclusively sold a line of Shop-Vac vacuums that contained the misrepresentations and allegedly made the same misrepresentations in its own advertisements and buyer’s guides.
The purchasers were unable to state with sufficient particularity consumer protection law claims against Shop-Vac, according to the court. Federal Rule of Civil Procedure 9(b) applies to fraud-based claims and requires the plaintiff to state the claims with heightened particularity. The purchasers alleged that they purchased the vacuum in reliance on the misrepresentations made by Shop-Vac, but did not allege what exactly the representations said, which models were purchased, when the vacuums were purchased, or any other details that would notify the companies of the exact nature of the claims.
The court declined to dismiss the claims against Lowe’s based on the argument that it had not made any independent representations, since the purchasers alleged that Lowe’s sold a special line of Shop-Vac vacuums and made the same misrepresentations about horsepower and tank capacity as Shop-Vac. The claims were dismissed on the basis of a failure to meet the Rule 9(b) requirement, however.
The court also dismissed the purchasers’ warranty claims against Shop-Vac.
The case is No. 4:12-md-2380.
Attorneys: William J. Pinilis (Pinilis Halpern, LLP) for Andrew Harbut. Michael Lawrence Mallow (Loeb and Loeb LLP) for Shop-Vac Corporation
Companies: Shop-Vac Corporation; Lowe’s Home Centers, Inc.
Cases: Advertising StateUnfairTradePractices PennsylvaniaNews