Antitrust Law Daily Wrap Up, TOP STORY—6th Cir.: Home owner lacks standing to assert Ohio Deceptive Trade Practices Act claim over allegedly defective trimboard, (Jul 12, 2013)

By Jeffrey May, J.D.

The U.S. Court of Appeals in Cincinnati today upheld dismissal of a home owner's Ohio Deceptive Trade Practices Act (ODTPA) and Ohio Products Liability Act (OPLA) claims against Louisiana-Pacific Corporation based on the alleged failure of the company's trimboard used on his home. The plaintiff is seeking to represent a class of similarly situated home owners (Holbrook v. Louisiana-Pacific Corp., July 12, 2013, Alarcon, A.).

The home owner, as a consumer, lacked standing to bring claims under the ODTPA, the court ruled. There was no guidance from the Ohio Supreme Court on the issue of consumer standing under the ODTPA. However, the state's supreme court had declined to review an appellate court decision, Dawson v. Blockbuster, Inc., (CCH) Advertising Law Guide ¶62,005, which held that consumers do not have standing to raise ODTPA claims. The appellate court had reached this conclusion because (1) the ODTPA and the federal Lanham Act were “substantially similar,” and (2) all federal courts of appeal that had considered the issue had held that consumers did not have standing under the Lanham Act. The Sixth Circuit panel concluded that the Ohio Supreme Court would not decide the issue differently.

Dismissal of the home owner's products liability claim also was affirmed. The plaintiff alleged economic damages, and only compensatory damages may be recovered under the OPLA.

The home owner might, however, have a breach-of-express-warranty claim based on a ten-year written warranty according to the court. In the ten-year written warranty, Louisiana-Pacific “warrants its Trimboard, exclusive of finish, against delamination, checking, splitting, cracking and chipping of the basic substrate for a period of ten years from the date of installation under normal conditions of use and exposure….”

The home owner's trimboard, which is an alternative to real wood trim, was installed on the home in 2003. The home owner purportedly noticed the trimboard's rotting, swelling, cracking, and peeling in July 2010 and filed suit in February 2012. The appellate court remanded to the district court the home owner's breach-of-express-warranty claim with respect to the ten-year written warranty, because the allegations were sufficient to assert a plausible claim.

The case is No. 12-4166.

Attorneys: Scott A. Moriarity (Lockridge Grindal Nauen) for Jason Holbrook. Kip Thomas Bollin (Thompson Hine) for Louisiana-Pacific Corp.

Companies: Louisiana-Pacific Corp.

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