CHICAGO (Legal Newsline) – Attorneys for Menard Inc. have issued a motion to dismiss a class action lawsuit accusing the company of misleading its customers about the size of its lumber.

In Michael Fuchs, et al., v. Menard Inc., two plaintiffs whose complaints have been combined into a single class action both contend that they purchased 4-by-4 units of lumber from Menards stores in Illinois and instead found that the total amount of material was 3.5 inches by 3.5 inches. 

In a motion for dismissal submitted to the United States District Court for the Northern District of Illinois on May 3, the legal counsel for Menard Inc. points out that the size of the lumber, 3.5 inches by 3.5 inches, is the actual size established by the National Institute of Standards and Technology (NIST).

And it claims that the NIST has established that this is most common size for what is typically identified as a 4-by-4 piece of lumber, explaining that the term 4-by-4 is used for naming purposes only. 

It claims that the markings for the lumber do not at any point state that the actual dimensions of the building material. This includes any mention of the dimensions of the lumber such as width or thickness, nor is the term 4-by-4 followed in anyway by the word inches to indicate an actual size. 

The motion also states that the term 4-by-4 is used so frequently used to describe lumber with different dimensions that the plaintiffs could not have purchased building materials meeting their demands at any location.

Despite this, both plaintiffs claim that they are victims of a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (IFCA), breach of express and implied warranties and unjust enrichment, and they seek damages and injunctive relief on behalf of themselves and a putative nationwide class of consumers, according to the motion. 

In its argument for dismissal, the defendant's legal counsel goes on to make the case that the plaintiffs lack the standing necessary to pursue the claim because they do not have evidence of any damages against them. 

According to the motion, for the plaintiffs to have standing they need to demonstrate three elements to prove Article III standing: an injury-in-fact that is concrete and particularized, the injury must be traceable to the defendant’s conduct and redressability.

To support this argument, the motion references Eike v. Allergan Inc. in which the U.S. Court of Appeals for the Seventh Circuit held that an IFCA claim must be dismissed because the plaintiffs failed to allege an injury that resulted from the defendants’ actions.

In addition, the motion argues that the plaintiffs' claims to do not meet the standard for an IFCA claim because they have failed the standards for such a claim by proving: that a deceptive act or practice by the defendant has taken place, the defendant’s intent that the plaintiff rely on that deception, the occurrence of the deception in the course of conduct involving trade or commerce, and actual damage to the plaintiff caused by the deception. 

The motion to dismiss is still pending in the United States District Court for the Northern District of Illinois, Eastern Division.

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Eastern Division of the Northern District of Illinois
219 South Dearborn Street
Chicago, IL - 60604

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