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In re Shop-Vac Mktg. & Sales Practices Litig.

United States District Court, M.D. Pennsylvania

August 9, 2013

IN RE: SHOP-VAC MARKETING AND SALES PRACTICES LITIGATION. THIS DOCUMENT RELATES TO: ALL CASES

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[Copyrighted Material Omitted]

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For Emanuele DiMare, Plaintiff: Brian F. Fox, LEAD ATTORNEY, Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Charles E. Schaffer, LEAD ATTORNEY, PRO HAC VICE, Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Jordan L. Chaikin, LEAD ATTORNEY, Parker Waichman LLP, Bonita Springs, FL; J. Christopher Munley, Munley, Munley & Cartwright, P.C., Scranton, PA.

For Deborah Blaylock, on behalf of herself and all others similarly situated, Plaintiff: Adam J. Levitt, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz LLC, Chicago, IL; Brian F. Fox, LEAD ATTORNEY, Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Charles E. Schaffer, LEAD ATTORNEY, PRO HAC VICE, Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Eric D. Holland, Randall S. Crompton, LEAD ATTORNEYS, Holland, Groves, Schneller & Stolze, LLC, St. Louis, MO; J. Christopher Munley, Munley, Munley & Cartwright, P.C., Scranton, PA.

For Alan McMichael, on behalf of himself and all others similarly situated, Plaintiff: Bruce Daniel Greenberg, Marissa Lenore Quigley, LEAD ATTORNEYS, LITE DEPALMA GREENBERG LLC, NEWARK, NJ; Andrei V. Rado, Jennifer S. Czeisler, Sanford P. Dumain, Scott R. Foglietta, Milberg LLP, New York, NY; Joseph U. Metz, Dilworth Paxson LLP, Harrisburg, PA.

For Andrew Harbut, on behalf of himself and all others similarly situated, Plaintiff: William J. Pinilis, LEAD ATTORNEY, PINILIS HALPERN, MORRISTOWN, NJ; Joseph U. Metz, Dilworth Paxson LLP, Harrisburg, PA.

For Clay Scott, Scott Mahoney, on behalf of themselves and all others similarly situated, Plaintiffs: Lisa J. Rodriguez, Nicole M. Acchione, LEAD ATTORNEYS, Trujillo Rodriguez & Richards, LLP, Haddonfield, PA; Adam R. Gonnelli, Faruqi & Faruqi LLP, New York, NY; Joseph U. Metz, Dilworth Paxson LLP, Harrisburg, PA; Sandra G. Smith, Faruqi & Faruqi, LLP, Jenkintown, PA.

For Igor Selizhuk, Plaintiff: Jerrold S. Parker, LEAD ATTORNEY, Parker Waichman Alonso LLP, Great Neck, NY; J. Christopher Munley, Munley, Munley & Cartwright, P.C., Scranton, PA.

For Fred Phillips, Plaintiff: Caroline F. Bartlett, LEAD ATTORNEY, CARELLA BYRNE, ROSELAND, NJ; Scott A. George, LEAD ATTORNEY, Seeger Weiss, LLP, Philadelphia, PA; Donald A. Ecklund, James E. Cecchi, Carella Byrne Cecchi Olstein Brody & Agnello Pc, Roseland, NJ; J. Christopher Munley, Munley, Munley & Cartwright, P.C., Scranton, PA; Jonathan Shub, Seeger Weiss LLP, Philadelphia, PA; Julie D. Miller, Complex Litigation Group LLC, Highland Park, IL.

For Charles Kates, Plaintiff: Nicholas J Drakulich, Robert J Drakulich, LEAD ATTORNEYS, The Drakulich Firm APLC, San Diego, CA; J. Christopher Munley, Munley, Munley & Cartwright, P.C., Scranton, PA.

For Walt Lavespere, Plaintiff: Douglas Edward Rushton, Jr, Richard J. Arsenault, LEAD ATTORNEYS, Neblett, Beard & Arsenault, Alexandria, LA; J. Christopher Munley, Munley, Munley & Cartwright, P.C., Scranton, PA.

For Debra Johnson, Plaintiff: Daniel E. Becnel, Jr., Matthew B. Moreland, LEAD ATTORNEY, Becnel Law Firm, LLC (Reserve), Reserve, LA.

For Shop-Vac Corporation, Defendant: Michael Lawrence Mallow, Michael Brian Shortnacy, LEAD ATTORNEYS, Loeb and Loeb LLP, Los Angeles, CA; Thomas G. Collins, Buchanan Ingersoll & Rooney PC, Harrisburg, PA.

For Lowe's Companies, Inc., Defendant: Michael Lawrence Mallow, Michael Brian Shortnacy, Loeb and Loeb LLP, Los Angeles, CA; Thomas G. Collins, Buchanan Ingersoll & Rooney PC, Harrisburg, PA.

OPINION

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MEMORANDUM

Yvette Kane, Chief United States District Judge.

RE: MOTION TO DISMISS

Before the Court is Defendants' motion to dismiss Plaintiffs' consolidated amended complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). (Doc. No. 68.) The motion has been fully briefed, and for the reasons that follow, the Court will grant the motion and dismiss Plaintiffs' consolidated amended complaint without prejudice.

I. BACKGROUND

The above-captioned multidistrict litigation (MDL) consists of nine coordinated cases in which numerous Plaintiffs bring warranty and consumer fraud claims based on Defendants Shop-Vac and Lowe's alleged misrepresentations regarding the horsepower and tank capacity of Shop-Vac's wet/dry vacuums. [1]

On February 19, 2013, Plaintiffs filed a consolidated amended complaint (CAC), in which they allege that Defendant Shop-Vac manufactures and sells a series of wet/dry vacuums, and that Defendants Lowe's Home Centers, Inc., and Lowe's HIW, Inc. sell these products at their home improvement stores. (Doc. No. 62 ¶ 1.) Plaintiffs allege that Defendants made false and misleading representations about the horsepower and tank capacity of the vacuums. (Id. ¶ ¶ 4-7.)

Plaintiffs allege that Shop-Vac represents that its vacuums are capable of reaching a peak horsepower that is impossible to attain with a standard electrical outlet. (Id. ¶ ¶ 19-20.) Peak horsepower, according to Plaintiffs, refers to the maximum output that can be developed in actual use, and they contend that a reasonable consumer would not understand that Shop-Vac's definition of peak horsepower does not relate to the actual power of the vacuum. [2] (Id. ¶ ¶ 30-35.) Further, Plaintiffs assert that Shop-Vac's horsepower claims, if true, would violate industry standards for safety, thereby rendering the vacuums unfit for their intended purpose and unable to pass into the stream of

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commerce without objection. (Id. ¶ ¶ 44-51.)

Plaintiffs further claim that Defendants' representations about the capacity of the vacuums' tanks are misleading because, in actual operation, the vacuums stop working when their tanks reach between 47% and 83% of the stated capacity. (Id. ¶ 52.) Thus, Plaintiffs allege that a reasonable consumer would be misled by these claims of tank capacity, " which have nothing to do with how much the tanks can hold while operating the vacuums." (Id. ¶ 55.)

Plaintiffs allege that Lowe's exclusively sells a line of Shop-Vac vacuums featuring the company's blue trade dress, which Lowe's markets in its stores, periodicals, and online. (Id. ¶ ¶ 56-58.) Plaintiffs assert that the Lowe's Shop-Vac vacuums contain the same misrepresentations on the box about horsepower and tank capacity as regular Shop-Vac vacuums, and that Lowe's ...


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