Thursday, April 05, 2018

"tougher" and "durable" aren't puffery for shingles

Stern v. Maibec Inc., 2018 WL 1586323, No. 11-cv-3951(PGS)(TJB) (D.N.J. Apr. 2, 2018)

Maibec makes eastern white cedar shingles and offers a 50-year limited warranty against wood decay and a warranty against stain failure. Its website touted eastern white cedar as “very durable and requires very little maintenance.” Its brochures claimed: (1) “Timeless. Traditional. And tougher than ever.”; (2) “At [M]aibec, we have spent the last four decades improving the way white cedar shingles are made. Today, they are engineered to be so durable that you just might consider them high tech.”; (3) “Best of all, [M]aibec shingles are guaranteed to last”; and (4) “The fact that they are low maintenance and look even better as they age is just an additional benefit.”

Plaintiff Stern alleged that she chose Maibec shingles over a competitor’s based on her understanding that they offered the same warranties and were maintenance free. She alleged that her shingles were warping, cupping, and lifting three years after installation, and that a Maibec employee who inspected her house concluded that the warping and other issues were not due to improper installation. Plaintiff McCaffrey had a similar story.

As indirect purchasers, plaintiffs had no breach of contract claims.  However, the court refused to dismiss claims based on express warranties in Maibec’s ads. Maibec contended that it never guaranteed “no maintenance” and the statements on its website were mere puffery. The court identified “tougher than ever”; “they are engineered to be so durable that you might consider them high tech”; and “[they] are guaranteed to last” as statements that weren’t mere generalized claims of superiority, but emphasized the shingle’s durability and low maintenance.  These were objective representations, not subjective. “Although not quantifiable, these statements are not so grandiose or lofty as to be considered subjective; rather, these statements leave a reasonable reader to expect the shingles to withstand the elements of nature and last for an extended period of time.”  Nor were they incapable of influencing consumer expectations due to how exaggerated they were.

Maibec next argued that the plaintiffs couldn’t show reliance, since neither recalled reading or viewing the statements on the website. However, they generally claimed to have relied on statements made on Maibec’s website in deciding to purchase Maibec shingles. A reasonable factfinder could find reliance.

Breach of implied warranty and merchantability claims failed for lack of privity, which is required to recover for economic loss in New York.  

GBL Section 349 claims were governed by a three-year statute of limitations, and for its purposes, the injury occurs on the date that a product is purchased, delivered, and installed. Thus, at least one plaintiff’s claims fell outside the statute of limitations; further factfinding was required for another, whose claims survived for the reasons noted above with respect to the warranty claims.

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