January
2013
District of New Jersey Trims Class Action Against Decking Manufacturer
On January 4, 2013, the District of New Jersey partially granted a building product’s manufacturer’s motion to dismiss, eliminating some of the claims within the purported class-action lawsuit against it. Borger v. Trex Company, Inc., Civ. Action No. 12-CV-2584 (D.N.J., Jan. 4, 2013). A copy of the Court’s opinion is available here.
The plaintiff purchased Trex decking products in April of 2010. Trex’s product carried a twenty-five-year warranty, and Trex stated that it’s decking (which was a composite made from recycled plastic and wood fibers) would not rot or deteriorate. According to the plaintiff, within three months her deck began flaking and showing signs of mold and mildew. The plaintiff complained to Trex, which denied her warranty claim. Plaintiff then filed her class action complaint.
On Friday, the Court dismissed the plaintiff’s claim under the New Jersey Consumer Fraud Act, as well as her fraudulent concealment and fraudulent misrepresentation claims, noting that such claims were barred by the economic loss rule (a doctrine which bars recovery under tort for damages that solely consist of economic losses). The Court also noted that the plaintiff had failed to plead her fraud claims in detail.
The Court left intact the plaintiff’s claims for breach of warranty and contract claims, as well as the plaintiff’s claim under the New Jersey Consumer Fraud Act, and the case will move forward on these grounds. The Court granted the plaintiff leave to amend her complaint, which will allow her to re-plead her fraud claims if she chooses. While including more details in her complaint might meet the heightened pleading for fraud claims, the economic loss doctrine will remain a major roadblock to these claims. Even in the event, the plaintiff can show non-economic losses, fraud claims often lack the typicality and commonality necessary for class certification.
Even though the plaintiff’s contract claims will move forward, this case is by no means over. In a class action, individual damages (like repair costs associated with the many individual class members) is difficult to quantify on a class-wide basis, and the plaintiff may face an uphill battle on class certification.