On April 21, 2017, Judge Trenga in the United States District Court for the Eastern District of Virginia entered an order denying in part summary judgment in In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales Practices and Products Liability
On April 21, 2017, Judge Trenga in the United States District Court for the Eastern District of Virginia entered an order denying in part summary judgment in In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales Practices and Products Liability Litigation, which involves Lumber Liquidators’ alleged marketing and sales of Chinese-manufactured composite laminate wood flooring products (“Products”) that contained excessive levels of formaldehyde. The California Air Resources Board (“CARB”) lists formaldehyde as a toxic air contaminant with no safe level of exposure and has set comprehensive and strict formaldehyde emission standards. Under the CARB-approved Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products (“ATCM”), Cal. Code Regs. tit. 17, § 93120, regular medium density fiberboard (“MDF”) and “thin” MDF products, which are at issue in the Lumber Liquidators case, should emit no more than 0.11 ppm and 0.13 ppm of formaldehyde, respectively. Cal. Code Regs. tit. 17, § 93120.2. While CARB standards are only applicable in California, Lumber Liquidators represented on a nationwide basis that its Products were CARB-compliant. It represented on its website that “NO formaldehyde” was in its hardwood floors. In re Lumber Liquidators Chinese-Manufactured Flooring Prods. Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1:15-md-2627 (AJT/TRJ), 2017 U.S. Dist. LEXIS 61362, at *42-43 (E.D. Va. Apr. 21, 2017) (“Lumber Liquidators”). In addition, even after CARB notified Lumber Liquidators that certain tested Products had failed CARB’s emission testing in October 2013 and a 60 Minutes segment on March 1, 2015 alleging that Lumber Liquidators’ Products contained dangerous levels of formaldehyde, the CEO of the company represented that Products were “100% safe” and complied “‘with applicable regulations . . . including California standards for formaldehyde emissions for composite wood products . . . .’” Id. at *43-44 (citations omitted). Lumber Liquidators ultimately removed its flooring Products from the market in May 2015.
Lumber Liquidators filed a motion for summary judgment motion on August 1, 2016 and it was heard by the Court on September 13, 2016. The Court found that “the evidence is sufficient for a fact finder to conclude that Lumber Liquidators knowingly misrepresented within a nationwide marketplace that its flooring had ‘NO formaldehyde’ and was CARB compliant,” which, under Plaintiff’s theory of the case, “allowed [Lumber Liquidators] to charge a higher price for its Product than the Plaintiffs would have otherwise had to pay.” Lumber Liquidators, 2017 U.S. Dist. LEXIS 61362, at *52. Plaintiffs are asserting a “price distortion” theory of injury, arguing that Lumber Liquidators would not have been able to sustain prices charged for its Products had it told the truth about them and Plaintiffs are entitled to the difference in value between the amount charged and what they actually received. Id. at *48. In addition, while the Court also found that, with the exception of two Florida Plaintiffs, reliance was not satisfied because none of the other Plaintiffs saw or heard Lumber Liquidators’ misrepresentations regarding formaldehyde or CARB-compliance before purchasing the Product, id. at *53-55, it held that Lumber Liquidators’ misrepresentations were material. Id. at *58 (“Even though a Plaintiff may not have actually relied on Defendant’s misrepresentation, he or she may still have attached significance to the formaldehyde levels in the Products and, in fact, Plaintiffs’ depositions indicate that most of them did.”) The Court distinctly analyzed issues of standing, reliance and materiality.
The Court also rejected Lumber Liquidators’ arguments that only CARB can determine if a product violates the ATCM and found that Plaintiffs’ testing evidence, if admissible, is “probative of whether, as a matter of fact, Lumber Liquidators’ Products contained more formaldehyde than Defendant publicly represented.” Lumber Liquidators, 2017 U.S. Dist. LEXIS 61362, at *62 (emphasis in the original); see also id. at *65-66. According to the Court, each Plaintiff had his or her flooring tested by third party certifiers and “each Plaintiff’s flooring exceeded the 0.11 ppm limit established by the ACTM, including some that were 300% of that limit . . . .” Id. at *66. The Court further determined that there is sufficient evidence to establish that Lumber Liquidators failed to comply with its obligations under the ATCM to take reasonable prudent precautions to ensure that its Products complied with ATCM emissions standards. Id. at *66-67.
Based in part on this analysis, the Court granted summary judgment as to Plaintiffs’ California, Texas and Illinois statutory consumer protection claims. However, it denied summary judgment as to certain Plaintiffs’ class claims under Florida and New York consumer protection statutes. In addition, the Court denied summary judgment as to: Florida, Texas and two of the California Plaintiffs’ fraudulent concealment claims; certain Florida Plaintiffs’ negligent misrepresentation claims; Plaintiffs’ breach of implied warranty claims; and Plaintiffs’ Magnuson-Moss Warranty Act claims.
This decision represents a significant victory for Plaintiffs and means that the Lumber Liquidators action will continue to move forward. Kershaw, Cook & Talley is counsel for plaintiffs in Flores v. Lumber Liquidators Holdings, Inc., et al. If you have any questions about the Lumber Liquidators litigation, or if you or someone you know have been harmed by a defective product, please call our office at 916-779-7000.
On April 6, 2017, the Supreme Court of California issued an opinion in McGill v. Citibank, N.A., No. S224086, 2017 Cal. LEXIS 2551 (Apr. 6, 2017) that opens up new possibilities for consumers to hold defendants that are engaged in wrongful business practices accountable even where an arbitration clause is at issue.
After opening an account with Citibank, the plaintiff’s account agreement was amended to include arbitration provisions. The plaintiff sued Citibank in part to enjoin its allegedly deceptive business practices (“public injunctive relief”). Citibank argued that the plaintiff could not sue for injunctive relief because the U.S. Supreme Court’s decisions in Concepcion and Italian Colors held that such claims are preempted under the Federal Arbitration Act (“FAA”). However, the California Supreme Court found that the arbitration agreement in McGill was invalid and unenforceable under California law because the agreement limited the plaintiff’s right to obtain public injunctive relief under the Unfair Competition Law (“UCL”), Consumers Legal Remedies Act (“CLRA”), and False Advertising Law (“FAL”) in any forum, not just within the arbitration context. It cited Civil Code section 3513, which provides in part that “a law established for a public reason cannot be contravened by a private agreement.” McGill, 2017 Cal. LEXIS 2551, at *23, 25, 30 (quoting Civ. Code § 3513). Significantly, the California Supreme Court held that “the FAA does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under the UCL, the CLRA, or the false advertising law.” McGill, 2017 Cal. LEXIS 2551, at *28 (emphasis in the original).
The end result of McGill v. Citibank is that arbitration clauses may not be enforceable if they expressly or effectively prevent statutory claims for “public injunctive relief” (i.e., relief that by and large benefits the general public) in court and arbitration. Post-McGill, there is now a chance for consumers in California to bring public injunctive relief claims against businesses even where an account or customer service agreement includes an arbitration clause, depending on the terms of the arbitration clause. However, this case and the questions addressed by the California Supreme Court could find their way to the U.S. Supreme Court soon, prompting further analysis under Concepcion and Italian Colors.
If you are a consumer who has been the subject of potential unlawful, deceptive or fraudulent business practices, please contact our office.
In the past few months, several large hip manufacturers have announced global settlements programs in an effort to resolve thousands of lawsuits alleging that their hips were defective. In almost all of these cases, the amounts being offered by the defendants do not reflect the true settlement value of the cases. However, despite the small amounts being paid, most plaintiffs are settling their cases as part of these settlement program. In considering a settlement, here are important things to consider.
If you have any questions or concerns regarding your recalled or defective hip, call Kershaw, Cook & Talley at 888-997-5170 for a free case consultation.
According to CBS News and USA Today, customers have been voicing concerns about Ford Explorer model years 2011 and onward. The hundreds of consumer complaints brought to the attention of the National Highway Traffic Safety Association (NHTSA) allege that, when accelerating with the air conditioning active and in circulation mode, the Explorer leaks exhaust fumes into the cabin of the vehicle. These exhaust fumes contain carbon monoxide, which can cause a driver to lose consciousness if inhaled in sufficient volume. Such a leak therefore threatens the lives of both the driver of the Ford Explorer and those of other drivers on the road. (more…)
Driving during the holidays already seems like a Herculean task. But add in severe weather and you may find yourself in a dangerous situation. If possible, it is best to stay off the roads until the weather clears. However, this is easier said than done. Driving in any condition demands your attention. Driving in a storm deserves your vigilance.
The following tips may help you on the open road:
If you are injured in a car accident, due to someone else’s negligence, call our personal injury attorneys for a free case evaluation at 916-779-7000.
The class action case against president-elect Donald Trump and his Trump University for fraud progressed further yesterday, as Trump’s lawyers agreed to enter settlement talks. Plaintiffs allege that Trump University as well as Donald Trump himself made important misstatements and omissions when advertising for the courses offered by the now-defunct program. The plaintiffs in the suit further claim that they relied on these important misstatements and omissions in their decisions to spend tens of thousands of dollars – money they hoped would help them learn the secrets of the real-estate mogul’s business acumen.
Earlier in the day, Trump’s lawyers attempted to exclude from the upcoming trial some of the more shocking statements that Trump made during his campaign, including his accusing Judge Gonzalo Curiel (who currently presides over this case) of bias relating to his Mexican heritage. Judge Curiel hesitantly rejected this request by Trump’s lawyers.
The trial is scheduled to take place on November 28th. Daniel Petrocelli, lead attorney for Trump, has requested the trial be delayed on the grounds that Trump needs the time to work on transitioning into the presidency.
Legal Rights of Those Harmed
In federal court, for a plaintiff to proceed in a fraud (or “misrepresentation”) lawsuit, the plaintiff must prove six essential elements:
If plaintiff shows all six of these things, the jury or judge must enter a verdict for the plaintiff. 3 Fed. Jury Prac. & Instr. § 123:02.
If you or someone you know relied on misrepresentations knowingly made by a business or other entity, and you suffered harm (financial or otherwise) as a result, please don’t hesitate to contact our office.
At approximately 3 AM this morning, a Ford Explorer slammed into two apartment buildings in South Sacramento. The SUV driver, a man in his 60s, claimed the accident occurred due to his foot getting stuck on the gas pedal, which caused him to lose control of the vehicle. The Sacramento Fire Department arrived to the location of the collision shortly after 3:15 AM, quickly discovering that the accident had sheared off four gas lines attached to the building. Although the fire department was able to stop the leak, the odor of natural gas could be smelled a block away from the crash site and the two apartment buildings were forced to be evacuated. The police said the driver will likely not be cited in the accident and the apartment’s manager will be handling the building’s repairs.
Although the story is still developing, Captain Simon Wiesner of the Sacramento Fire Department reports drugs are not suspected to be a factor in the accident. reports that each day in the United States, “over 8 people are killed and 1,161 injured in crashes that are reported to involve a distracted driver.” Similarly, the National Highway Traffic Safety Administration estimates that drowsy driving was the cause of at least 72,000 crashes, 44,000 injuries, and 800 deaths in 2013. Alarmingly, 1 in 25 adult drivers have fallen asleep while driving in an average 30-day period.
The CDC reports that each day in the United States, “over 8 people are killed and 1,161 injured in crashes that are reported to involve a distracted driver.” Similarly, the National Highway Traffic Safety Administration estimates that drowsy driving was the cause of at least 72,000 crashes, 44,000 injuries, and 800 deaths in 2013. Alarmingly, 1 in 25 adult drivers have fallen asleep while driving in an average 30-day period.
Most crashes or near-misses occur between 4-6 AM, midnight-2AM and 2-4 PM. November 6-13, 2016 is Drowsy Driving Prevention Week. In anticipation of daylight savings time and the darker winter months, The National Sleep Foundation offers the following tips to prevent distracted driving:
The attorneys at Kershaw, Cook & Talley successfully represent consumers in lawsuits against manufacturers and companies involving defective products and product recalls. Our experienced trial attorneys recover thousands of dollars on behalf of injured individuals in cases involving defective medical devices, dangerous drugs, car defects and more.
At times, attorneys require further expertise and resources, legally and financially, to resolve a legal matter. We have the team, capability and dedication to handle challenging cases. If you have a case exceeding your resources with respect to workforce or experience, consider contacting our firm. We welcome referrals from firms in Sacramento and throughout the United States.
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We understand personal injury cases are often emotionally and financially straining. Our team of top personal injury attorneys in Sacramento is committed to seeking justice for individuals injured as a result of another's negligence or intentional misconduct. At Kershaw, Cook & Talley, our experienced personal injury attorneys will hold the responsible parties accountable for their actions.