Lowes seeks to be dismissed from chainsaw class action

Steve Gonzalez Oct. 14, 2005, 2:32am

Lowes In Fairview Heights

Lowes Home Center has filed a motion to dismiss a class action case that alleges the retailer deceptively advertised Remington chain saws had greater horsepower output than less expensive models.

The complaint, filed by Sammy McNeil in St. Clair County on Feb. 16, claims Lowes advertised the Desa Lawn and Garden products as having "Peak HP."

The class is seeking damages less than $75,000 each and are represented by Bradley Lakin, Richard Burke and Dennis Barton of the Lakin Law Firm in Wood River and Paul Weiss, William Sweetnam, and Tod Lewis of Freed & Weiss of Chicago.

"Lowes knowingly used the phrase "Peak HP" as a deceptive artifice to induce consumers to purchase the products without informing consumers that "peak HP" is not an indication of the products operational horsepower, their definition of "peak HP" and that the products were not designed to produce operational horsepower equivalent to the "peak HP" advertised," the complaint states.

McNeil claims the alleged fraudulent misrepresentations and acts of the operational horsepower induced customers to purchase the Desa Lawn and Garden products.

He purchased a Desa 16 inch bar, 3.5 Peak HP Remington Chain Saw from a Lowes store in Fairview Heights in 2004.

McNeil and the class claim they have been damaged because the alleged fraudulent representations caused them to purchase the products that had no greater operational horsepower than less expensive equipment when they could have purchased similar equipment at a lower cost.

"Defendant's unlawful, unfair and deceptive practices are widespread and continue in nature, and class members suffered damage by not receiving what they bargained and purchased," the complaint states.

Lowes, represented by Gordon Broom, Troy Bozarth and Sarah Rodeman of Burroughs, Hepler, Broom, MacDonald, Hebrank & True of Edwardsville, states that there has been no misrepresentation and that it had no duty to disclose the commonly understood meaning of "Peak HP."

"Plaintiff has failed to state a cause of action for common law fraud, either under a theory of fraudulent misrepresentation or the fraudulent concealment," Lowes states in its motion to dismiss.

It also argued that in sustaining a claim for fraudulent concealment a plaintiff must also plead facts demonstrating that "the innocent party could not have discovered the truth through a reasonable inquiry or inspection and relied upon the silence as a representation that the fact did not exist."

"Plaintiff cannot state a cause of action for violation of the Illinois Consumer Fraud Act because Lowes has committed no deceptive act," the motion to dismiss states.

Lowes claims Desa prepares the advertisements, packaging and promotional materials for its products.

05 L 112 (20th Circuit)

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