Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—M.D. Fla.: Court tosses proposed class certification in FDUTPA claim against Home Depot out the window, (Sep 8, 2015)

By Michael Menzhuber, J.D., LL.M.

A motion for class certification, in an action claiming that Home Depot USA, Inc. violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) by deceptively advertising professional installation services, was denied by the federal district court in Jacksonville, Florida. The court determined that: (1) the proposed class was overly broad; (2) even if the class definition was limited, it could potentially include putative plaintiffs that suffered no damages; and (3) individual inspections of each putative class member’s windows and doors would have to be conducted to determining whether a potential plaintiff might have a cause of action (Varnes v. Home Depot USA, Inc., September 4, 2015, Davis. B.).

Background. The plaintiffs’ FDUTPA claim alleged that, despite Home Depot’s representation that it would “get the job done right”, it cut corners on its installation services by failing to comply with manufacture instructions and the Florida Building Code. Specifically, the plaintiffs’ alleged that Home Depot failed to install, or have installed, an adequate structural framing attachment and support (buck) for a window or sliding glass door in masonry openings in Florida counties that conducted only closed inspections. Closed inspections incurred in closed counties and made it impossible for inspectors to assess the alleged hidden code and construction violations alleged.

The named plaintiffs, and the class they sought to represent, were Florida property owners who purchased windows and sliding-glass doors, and accompanying installation services from Home Depot, from April 2008 to the present, where the installation services occurred in counties and municipalities with closed inspections. The plaintiffs claimed that, as a result of Home Depot’s actions, they suffered, among other things, reduced energy efficiency, water intrusion, and reduced structural integrity.

Class Certification. In addition to meeting all of the Federal Rules of Civil Procedure 23(a) requirements and one of the Federal Rules of Civil Procedure 23(b) requirements, the court noted that a plaintiff must demonstrate that the proposed class is “adequately defined and clearly ascertainable.” The plaintiffs’ proposed class definition, which they refined to apply only to purchasers that lived in counties and municipalities with closed inspections, was still overly broad and failed to render the putative class ascertainable.

After noting that the plaintiffs specifically referred to Home Depot’s conduct in failing to ensure the proper placement of structural bucks in masonry openings, the court determined the proposed class was overly broad because it was not limited to the installation of windows and doors in masonry openings.

The court further determined that even limiting the class definition to include only those customers in closed counties with products installed in masonry opening was insufficient because many of the customers many have had adequate preexisting bucks. In such cases, the putative plaintiff would have suffered no damages and, therefore, not have a viable FDUTPA claim.

Finally, the court found that, in order to determine whether installations were consistent with manufacturer specifications and the FDUTPA, the plaintiffs would have to rely on one of their experts to measure the window or door units, remove side jamb screws, and the probe the interior of the window. This individualized inspection, which would have to be repeated on each and every putative class member’s windows and door to determine whether there was a cause of action.

The case is No. 3:12-cv-622-J-39JBT0.

Attorneys: John Allen Yanchunis , Sr. (Morgan & Morgan, PA) for David A. Varnes. Andrew J. Knight , II (Moseley, Prichard, Parrish, Knight & Jones), Claire Carothers Oates(King & Spalding, LLP) for Home Depot USA, Inc. and THD At-Home Services, Inc.

Companies: Home Depot USA, Inc.; THD At-Home Services, Inc.

Cases: StateUnfairTradePractices FloridaNews