Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—W.D. Mich.: Manufacturer would not be liable for misrepresentations that consumer never actually viewed, (Jul 24, 2013)

By Jody Coultas, J.D.

A home owner was unable to state a Michigan Consumer Protection Act (CPA) claim against Louisiana-Pacific Corp. for allegedly misrepresenting the quality of its products, the federal district court in Grand Rapids, Michigan, has held (Lipov v. Louisiana-Pacific Corp., July 22, 2013, Neff, J.).

LP manufacturers ABTCO TrimBoard, a manufactured wood exterior trim product for use as fascia, soffit, corner board, bandboards, window trim, door trim, and general exterior use on homes and other structures. The homeowner alleged that LP misrepresented the quality and characteristics of TrimBoard, breached express and implied warranties, and failed to alert consumers to a material defect that resulted in deterioration. TrimBoard came with a “10/5 Year Limited Warranty,” the “LP Warranty.”

CPA claims for fraud or mistake must meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b), while CPA claims for breach of express or implied warranties need not meet that standard. However, a buyer may not assert a claim against a seller under the CPA for alleged warranty related misrepresentations when the seller disclaimed all express and implied warranties.

Because the home owner merely restated breach of warranty claims under the CPA, the claims failed. The home owner had abandoned his claim for breach of express warranties other than under the LP Warranty, and LP properly disclaimed all implied warranties. Therefore, the warranty claims were dismissed.

The home owner failed to present enough facts to state a claim under the CPA, according to the court. LP argued that the home owner did not submit evidence concerning what statements were made, the time and place of each statement, how he was misled, or how he detrimentally relied on the statements. LP did not actually sell TrimBoard directly to the home owner. The home owner merely identified the representations LP made in its product materials. There was no evidence the home owner even saw any of the materials that allegedly contained the misrepresentations.

The district court’s determination follows a decision of the U.S. Court of Appeals in Cincinnati earlier this month that upheld dismissal of an Ohio home owner's Ohio Deceptive Trade Practices Act claim against LP over the company’s TrimBoard.

The case is No. 1:12-cv-439.

Attorneys: Alyson L. Oliver (Oliver Law Group PC) for Eugene G. Lipov. Kevin G. Dougherty (Warner Norcross & Judd LLP) for Louisiana-Pacific Corp.

Companies: Louisiana-Pacific Corp.

Cases: StateUnfairTradePractices MichiganNews