Fuchs v Menard Inc., A Class Action Lawsuit

Tuesday, January 23, 2018

In last November's WSRM newsletter, we featured the case of Fuchs v Menard Inc., a class action lawsuit that challenged the use of nominal values by Menards and dismissed by an Illinois federal district court. We also provided our key takeaways as guidance for dealers when labeling or advertising dimensional lumber. Below we share enhanced key takeaways. These were featured in NLBMDA's Washington Regulatory Update webinar on December 7, 2017.

1. You may use the nominal name for dimensional lumber (e.g., 2 x 4). The use of the nominal naming convention by the lumber and building material sectors is well known.

2. Clearly designate the nominal name with "nominal" or the abbreviation "nom". For example, 2 x 4 - 10 feet (nominal).

3. If you include lengths and these are intended to be actual lengths, you should use the inch or foot designation (e.g., 2 x 4 x 9 feet). To avoid confusion, use "inch" or "inches" or the abbreviation "in" or "foot" or "feet" or the abbreviation "ft" and avoid use of the inch mark or foot mark.

Note that the nominal names 2 x 4 is followed by an actual length which therefore requires the foot designation, thereby distinguishing the nominal naming convention and the actual length.

4. If you also include the actual dimensions, use the inch designations (e.g., for the 2 x 4 x 9 ft piece, the actual dimensions may be: 1.5 inches x 3.5 inches x 9 feet or 1.5 in. x 3.5 in. x 9 ft.). To avoid confusion, use "inch" or "inches" or the abbreviation "in" or "foot" or "feet" or the abbreviation "ft" and avoid use of the inch mark or foot mark.

5. It is very important to be consistent throughout your labeling, descriptions and advertising material, including all online content and descriptions.

Some additional considerations:

6. You may want to provide a means of measurement nearby where the customer selects the individual pieces. The court noted that not only did Menards properly use the nominal naming convention for the lumber, but the customers were able to see, handle (and by implication, measure) the pieces to determine that the nominal name did not represent the actual dimensions.

7. You may want to post a notice nearby where the customer selects the individual pieces that indicates the accepted practice of using the nominal name of dimensional lumber and that the nominal name is not a description of the exact measurement of the piece's dimensions.
1/23/2018

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