Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—M.D.N.C.: Misrepresentation claims against Remington dismissed, (Oct 3, 2013)

By Jody Coultas, J.D.

Remington Arms Company was granted dismissal by the federal district court in Durham of North Carolina Unfair and Deceptive Trade Practices Act (UDTPA) claims brought by rifle purchasers based on alleged misrepresentations made by Remington about its rifles (Yancy v. Remington Arms Co., LLC, September 30, 2013, Webster, J.)

Rifle purchasers in Texas and North Carolina filed putative class action suits against Remington and an ammunition manufacturer Remington voluntarily recalled its Model 597 semi-automatic rifles chambered for .17 HMR ammunition after the ammunition manufacturer notified Remington that for safety reasons the ammunition was not suitable for use in any semi-automatic firearm. The purchasers alleged that Remington knew of the defect in the rifle, concealed the problem, and continued to misrepresent the “quality, safety and value of the product,” in violation of the UDTPA.

To state a UDTPA claim, the purchasers were required to show that Remington committed an unfair or deceptive act or practice that involved or affected commerce and proximately caused injury. An unfair or deceptive practice is one that “offends established public policy and [is] immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers” or which “has the capacity or tendency to deceive.”

The purchasers failed to allege substantial aggravating circumstances sufficient to state a UDPTA claim, according to the court. The allegations that Remington knew that the rifle and ammunition would not live up to the terms of the warranty and should have disclosed this fact to consumers were merely a restatement of a breach of express warranty claim. When a breach of warranty forms the basis of a UDTPA claim, the plaintiff must allege aggravating or egregious circumstances. Remington’s decision to offer a coupon for a value less than the purchase price of the rifle and the ammunition was not unfair or deceptive.

The court also dismissed the UDTPA claims against the ammunition manufacturer because the purchaser failed to allege actual reliance. Claims based on misrepresentation require a showing that the plaintiff actually relied on the alleged misrepresentation. The purchasers did not identify any specific misrepresentations made by the manufacturer or that the purchaser relied on any alleged misrepresentations made by the manufacturer.

The purchasers also failed to state breach of warranty and unjust enrichment claims, according to the court.

The cases are Nos. 1:12CV477, 1:12CV437, and 1:10CV918.

Attorneys: Gary K. Shipman (Shipman & Wright, LLP) for William S. Yancey. Dale G. Wills (Swanson, Martin & Bell, LLP) for Remington Arms Co.

Companies: Remington Arms Co., LLC

Cases: StateUnfairTradePractices NorthCarolinaNews