Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—DKan: Vinyl Railing Purchaser States Claim For Unconscionable Acts, (Dec 5, 2012)

By Jody Coultas, J.D.

A vinyl railing purchaser stated Kansas Consumer Protection Act (CPA) claims against Barrette Outdoor Living, Inc. and others for allegedly engaging in unconscionable business practices in selling the railing, according to the federal district court in Kansas City, Kansas (Jonathan Nieberding v. Barrette Outdoor Living, Inc., December 4, 2012, Vratil, K.).

The purchaser brought the CPA claims against Barrette, Home Depot U.S.A., Inc. and John Doe defendants based on injuries arising out of the failure of a vinyl railing that Barrette manufactured and Home Depot sold. John Doe defendants 1-5 are individuals, partnerships, and/or corporations who are or were engaged in the business of testing, developing, manufacturing, labeling, marketing, distributing, promoting, supplying and/or selling, either directly or indirectly, through third parties or related entities, the defective railing system.

Rule 9(b)

The CPA prohibits deceptive acts or practices in connection with a consumer transaction. Deceptive acts or practices include knowing misrepresentations and willful failures to state a material fact. Federal Rule of Civil Procedure 9(b) applies to CPA claims.

Because the purchaser pled the who, what, where and when of the alleged act or practice, the court held that the CPA claim met the heightened pleading standard of 9(b). The claims stated that the purchaser bought a vinyl railing system from Home Depot in Manhattan, Kansas, in June 2010 designed, manufactured, distributed, tested, sold, applied, used and/or supplied by Barrette. The purchaser alleged that Barrette knew or should have known the dangerous nature of the railing system and the likelihood that it would fail and cause injury and willfully failed to disclose this fact. Barrette also allegedly advertised that their products were designed to be “safe and secure,” “keep your family and guests safe,” and “vinyl railings will require very little maintenance and will not warp, crack, splinter, peel or ever need painting.”

Unconscionable Acts

Unconscionable acts include some element of deceptive bargaining conduct as well as unequal bargaining power, and generally involve conduct by which a supplier seeks to induce or require a consumer to assume risks which materially exceed the benefits of a related consumer transaction.

The court declined to dismiss the CPA claim based on unconscionable acts. The purchaser alleged that Barrette made misleading statements of opinion on which the consumer was likely to rely to the consumer’s detriment. The statements involved more that the mere potential to mislead by implication, but rather a direct attempt to mislead by specific false statements. It was not clear that the statements did not constitute a deceptive bargaining practice.

Damages

Barrette’s argument that the purchaser improperly sought relief for damages both individually and on behalf of a class was premature because the court had not certified the class.

The case is No. 12-2353-KHV

Andrew J. Schermerhorn (Klamann Law Firm) for Jonathan Nieberding. Gary T. Jansen (Cremer Spina Shaughnessy Jansen & Siegert, LLC) for Barrette Outdoor Living, Inc.

Cases: StateUnfairTradePractices KansasNews