Advertising, Plaintiffs Firms, Rank Stupidity

Lawsuit: Home Depot Selling 4x4s That Aren't 4 Inches By 4 Inches! Everyone Else: They Aren't Supposed To Be, Moron.

Home Depot and Menard's face the dumbest class action claim ever.

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Home Depot and Menard’s are facing class-action lawsuits — at least until the Supreme Court bans class actions altogether next Term — that the 4×4 boards both retailers have been peddling to the public for years aren’t really 4 inches by 4 inches. In fact, they’re substantially off, generally measuring 3 1/2 inches by 3 1/2 inches!

The lawsuits against the retailers would-be class actions, filed within five days of each other in federal court for the Northern District of Illinois. Attorneys from the same Chicago law firm represent the plaintiffs in both cases. Each suit seeks more than $5 million.

“Defendant has received significant profits from its false marketing and sale of its dimensional lumber products,” the action against Menards contends.

“Defendant’s representations as to the dimension of these products were false and misleading,” the suit against Home Depot alleges.

The only problem with this lawsuit is that everybody who ever built anything already knew that 3 1/2″ by 3 1/2″ is the industry standard memorialized in multiple government regulations. This is what happens when you start selling construction materials to weekend warriors who watched two episodes of Chip and Joanna and fancy themselves carpenters.

In fact, if retailers started selling boards that were 4 inches by 4 inches, they’d actually be useless because they wouldn’t match up with all the other standardized materials that assume the board will be 3 1/2″ by 3 1/2″. Since the point of a board is less “to get as much wood as possible” and more “to keep your house from falling over,” it’s probably good that Home Depot and Menard’s are doing this.

That’s what separates this from the infamous Subway “footlong” lawsuits. In those suits, a company affirmatively advertised the size of its bread and on occasion (Subway said rarely, the plaintiffs said routinely) delivered shorter sandwiches. That didn’t really impact how much pedophile-thinning goodness they’d jam into the bread, but it’s not like Subway had to call these things “footlongs” and run a bunch of commercials with telestrated rulers. They could have called these “MegaGrinders” and no one would have cared. Once they explicitly made their size the crux of their advertising pitch, they took on the additional burden of living up to that.

But the name “4×4” isn’t an advertisement, it’s anachronistic shorthand. Much like the “Quarter Pounder” burger — which restaurants generally note specifies “pre-cooked” weight — the old-school way of making boards involved taking 4″ by 4″ green boards that would then shrink to something not unlike the size of today’s boards. Now the technology is better and lumber can be reliably turned out at the 3 1/2″ by 3 1/2″ size that builders expect. This is like suing Apple because iPhones aren’t rotary so you can’t really “dial” someone. Yeah, we get it… we’re still going to call it dialing.

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Unfortunately, the retailers will probably end up settling these and adding a disclaimer in fine print explaining the actual size. It’s just cheaper to give into this sort of suit than fight it, and that’s why there’s a frenzy of terrible “size” suits out there right now. The problem is the frivolous suits run the risk of poisoning the well against the serious ones. Sellers have been shorting their customers since the invention of the market. Sometimes “size” suits are cash grabs by attorneys trying to turn the vagaries of packaging into a quick settlement. Other times they’re public-service suits calling out a manufacturer for systematically shorting buyers to cut back on costs. This lawsuit is, in a word, “stupid.” But don’t let it become the automatic stand-in for every case about measurements you run across.

Each case should be measured on its own merits.

I really need to stop ending articles with bad puns like that.

Home Depot, Menards face lawsuits over lumber size description [USA Today]

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HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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