CHICAGO (Legal Newsline) – Two plaintiffs who accused a hardware store chain of violating the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) have appealed a trial court’s dismissal of their claims.

Michael Fuchs and Vladislav Krasilnikov, who brought the suit against Menard Inc. individually and as a potential class action submitted their notice on Oct. 30 that they would appeal the decision to the U.S. Court of Appeals for the Seventh Circuit.

The decision they're appealing was filed on Sept. 29 by Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois, Eastern Division. At that time, the court dismissed the complaint with prejudice, as the plaintiffs had already amended their complaint once and had not asked to do so again.

In its motion to dismiss, Menard argued that the plaintiffs had a lack of standing and had failed to state a claim.

In Chang’s written opinion, he first considered the question of standing, finding that the plaintiffs’ claims that they would not have purchased the lumber had the labels been accurate, or they would not have been willing to pay so much for it, qualify as a financial injury, which is sufficient to show standing.

Regarding the plaintiffs’ claim that Menard misled consumers by using common names rather than true sizes in labeling its lumber, the court found Menard made no false representation on the lumber labels. 

“First, the labels are literally true,” writes Chang. “Specifically, the store labels shown in Fuchs’ and Krasilnikov’s complaint do not have inch-mark symbols after the customary trade names of lumber pieces.” 

The court accepted Menard’s argument that it follows the industry standard of labeling products with its “nominal” size, not the lumber’s actual size. Therefore, “no reasonable consumer would think that the labels showed the exact dimensions of the lumber,” wrote Chang. 

Furthermore, because the lumber is freely available for the consumer to measure, and therefore the information in question was in fact available, the lumber’s labels cannot be considered deceptive under the ICFA. Because of this finding, the court also dismissed the plaintiffs’ claims of unjust enrichment.

Finally, the court dismissed the plaintiffs’ claims of breach of express warranty and breach of implied warranty, finding that in both cases “Menards made no actionable affirmation of fact or promise on the dimensional lumber labels.”

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