Class Rejected for Home Depot Surcharge Dispute


     (CN) – Home Depot should not face a class action from customers who allegedly did not know they could decline the 10 percent surcharge on tool rentals, the 9th Circuit ruled Monday.
     California resident Benjamin Berger had claimed that the retailer violated the state’s unfair competition and consumer protection laws by allegedly neglecting to tell customers that an automatic 10 percent surcharge for a damage waiver on tool rentals was actually optional.
     U.S. District Judge S. James Otero in Santa Ana refused to certify the class, however, after finding that Berger’s claims did not meet the commonality, typicality and adequacy requirements for such lawsuits.
     A three-judge panel with the Pasadena-based federal appeals court affirmed Monday.
     “The district court did not abuse its discretion in holding that the proposed classes that Berger is capable of representing do not meet the requirement that common questions predominate over individual issues,” Judge Ronald Gould wrote for the panel.
     “Because the contracts used by Home Depot at different times contained distinct terms, the question of whether a material misrepresentation was made to the entire class requires an individualized determination that in our view the district court reasonably found predominates over any common questions, thereby compelling us to affirm its dismissal of the CLRA claim for the primary class,” Gould added, abbreviating California’s Consumers Legal Remedies Act, one of the state laws under which Berger had sued. “Because the signs and oral representation are a fundamental part of the alleged misrepresentation, in that explicit signs or explicit verbal advice would negate the claimed misrepresentation, the district court sensibly held that the individualized determination of the nature of those statements supported denial of class certification of the CLRA claim for Berger’s proposed subclass one. This was not an abuse of discretion.”

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