Sears and other big names sued over lawnmower horsepower

By Kelly Holleran | Feb 26, 2009

White Outdoor lawnmower Twelve prominent lawnmower manufacturers, including Sears, are accused in a St. Clair County class action lawsuit of conspiring together and overstating the horsepower in their products so they could charge consumers higher prices.

White Outdoor lawnmower

Twelve prominent lawnmower manufacturers, including Sears, are accused in a St. Clair County class action lawsuit of conspiring together and overstating the horsepower in their products so they could charge consumers higher prices.

Lead class plaintiff Rhonda Lemay of Belleville claims the companies sold lawnmowers that contained identical motors, but some were marked with a higher horsepower and cost more than others.

Lemay was contacted at home, but declined to comment about the lawsuit.

In April 2003, she bought a White Outdoor lawnmower manufactured by MTD from Jones Brothers in Belleville, the complaint states.

Lemay is represented by JoDee Favre of Belleville, and Vincent J. Esades, Renae D. Steiner and Scott W. Carlson of Heins, Mills and Olson in Minneapolis, Brian M. Sund, Joshua G. Hauble and Jackson D. Bigham of Morrison, Fenske and Sund in Minnetonka, Minn., and William H. London and Douglas A. Millen of Freed, Kanner, London and Millen in Bannockburn.

"Throughout the Class Period (January 1, 1994 through the present), Defendants have knowingly misrepresented the horsepower of Defendants' lawn mowers and lawn mower engines through statements and representations made and disseminated to the public in Defendants' advertising," the suit filed Feb. 18 in St. Clair County Circuit Court states. "In fact, the true horsepower of Defendants' engines is significantly less than the horsepower represented by Defendants."

In order to charge the higher prices for less horsepower, the companies communicated and agreed to conceal their misrepresentations, the complaint alleges.

There are 42 similiar class action cases that have been transferred from various state courts to a multi district litigation in the Eastern District of Wisconsin. U.S. District Judge Lynn Adelman is assigned to the cases, some filed by the same group of lawyers who represent Lemay.

The alleged fraud began in the 1980s when the Society of Automotive Engineers – which included members of many of the companies who are allegedly part of the scheme – implemented a labeling standard, the suit states.

"This labeling standard was an attempt to give Defendants a purportedly legitimate reason for labeling their engines with a horsepower representation different than what their test results achieved and to conceal their conspiracy and illegal acts," the suit states.

In 2000, revisions to the labeling standard were added that allowed a "fudge factor" of up to 15 percent be added to horsepower labels, Lamey claims.

SAE invented another standard in 1990 that allowed a gross horsepower testing protocol, according to the complaint.

This gross horsepower allowed lawnmower manufacturers to advertise the theoretical horsepower an engine could achieve under ideal laboratory conditions with all legally required accessories removed from the engine, such as the air filter and exhaust mechanism, the suit states.

"'Gross' horsepower is deceptive because by removing the necessary components, such as exhaust systems and air filters, which drain an engine of power, a higher horsepower can be achieved in the laboratory than in the field," the suit states.

In addition, nine of the companies named in the suit are members of the "Power Labeling Task Force," which met at various locations in 2001 to discuss ways to conceal horsepower fraud and misrepresent horsepower to the public, Lemay claims.

They decided to put a disclaimer on the Outdoor Power Equipment Institute's Web site, stating misleading information about horsepower, according to the complaint.

In 2004, the Power Labeling Task Force began discussing alternative ways to label horsepower in an attempt "to further their conspiracy," the suit states.

Beginning in 2007, many companies began labeling their lawn mower engines with torque, "despite the fact that engineers assert that 'torque' is not an appropriate quantifier of power and should not be used in power labeling," Lemay alleges.

In another deception, Sears began to market the 7 horsepower Briggs and Stratton engine and the 27 horsepower Kohler engine as the most powerful engines on the market, according to the complaint.

However, both engines produce far less horsepower than advertised and are the same engines sold to consumers with labels of less horsepower, the suit states.

The companies' fraudulent representations to consumers can be seen in reports they issued to the Environmental Protection Agency and to the California Clean Air Act, Lemay claims.

Both the EPA and CARB require companies to submit maximum horsepower ratings, according to the complaint.

However, when the defendant companies issued their reports, they reported horsepower ratings "significantly lower than the inflated, false, misleading and deceptive horsepower representations Defendants make in advertising," the suit states.

For example, Tecumseh reported one of its lawn mower engines produces 3.67 horsepower, yet it told the public the same engine produced 6.75 horsepower, Lemay alleges.

In the four-count suit, Lemay is asking the court certify the case as a class action and prohibit the defending companies from engaging in similar conduct.

She is also asking the court to enjoin the companies from misrepresenting to the public any power rating regarding engines or lawn mowers and to order the defending companies to disgorge to class members all money they unjustly received through their unlawful conduct.

Lemay is seeking unspecified compensatory and punitive damages, restitution, pre- and post-judgment interest, attorneys' fees and other relief the court deems just.

St. Clair County Circuit Court case number: 09-L-0085.

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