Whacked with a 4x4: Menards, Home Depot face lawsuits over descriptions of lumber size

Rick Romell | Milwaukee Journal Sentinel

Show Caption Hide Caption Home Depot, Menards sued for 'misleading' lumber size description Two Home improvement stores are accused of deceiving the buyers of four-by-four boards. The suits, each seeking over $5 million claim the retailers received significant profits from its false and misleading marketing.

Menards and Home Depot stand accused of deceiving the lumber-buying public, specifically, buyers of 4x4 boards, the big brother to the ubiquitous 2x4.

The alleged deception: The retailers market and sell the hefty lumber as 4x4s without specifying that the boards actually measure 3½ inches by 3½ inches.

The lawsuits against the retailers, would-be class actions, were filed within five days of each other in federal court for the Northern District of Illinois. Attorneys from the same Chicago law firm represent the plaintiffs in both cases. Each suit seeks more than $5 million.

“Defendant has received significant profits from its false marketing and sale of its dimensional lumber products,” the action against Menards contends.

“Defendant’s representations as to the dimension of these products were false and misleading,” the suit against Home Depot alleges.

The retailers say the allegations are bogus. It is common knowledge and longstanding industry practice, they say, that names such as 2x4 or 4x4 do not describe the width and thickness of those pieces of lumber.

Rather, the retailers say, those are “nominal” designations accepted in government-approved industry standards, which also specify actual minimum dimensions — 1½ inches by 3½ inches for a 2x4, for example, and 3½ inches by 3½ inches for a 4x4.

“Anybody who’s in the trades or construction knows that,” said Tim Stich, a carpentry instructor at Milwaukee Area Technical College.

True enough, said Yevgeniy (Eugene) Turin of McGuire Law, the firm that represents the plaintiffs in both cases.

However, Turin and his clients dispute that the differences between nominal descriptions and actual dimensions are common knowledge.

“It’s difficult to say that for a reasonable consumer, when they walk into a store and they see a label that says 4x4, that that’s simply — quote unquote — a trade name,” Turin said in an interview.

Turin said his clients don’t argue that the retailers’ 4x4s (and, in the Menards case, a 1x6 board as well) are not the correct size under the standards published by the U.S. Department of Commerce. The product labels, however, should disclose that those are “nominal” designations and not actual sizes, Turin said.

With some of Menards’ lumber products, both the nominal and actual size are shown, a document Turin filed in the case against Menards says. But the lumber in question is labeled only with a nominal size — 4x4 - 10’, for example — that consists of numbers “arranged in a way to represent the dimensions of the products,” the document says. That leaves the “average consumer” to conclude that the pieces measure 4 inches by 4 inches, Turin said.

Some Menards customers aren’t buying it.

“They haven’t measured 4 inches by 4 inches since the ‘50s,” Scott Sunila said after loading purchases from the Germantown store into the bed of his pickup.

“My God, that’s crazy,” the 60-year-old bulldozer operator said of the lawsuits. “Let me on the jury. They ain’t winning. And they’re gonna pay me extra for my time.”

But an unscientific survey of 18 Menards shoppers found that about a third were unaware that “4x4” doesn’t represent actual dimensions of that piece of lumber.

Neither Angela nor Pete Silva, a Menomonee Falls couple shopping the Germantown store as they plan a garage workshop, knew.

“I just assumed that it would be the same,” Angela, a funeral director, said. “But then again, we just started building things.”

Stich, the MATC carpentry teacher, also said the average homeowner might not know about such distinctions between lumber names and dimensions. And Turin said comments on the Home Depot website show that “there are actual customers being confused.”

Plaintiffs in the lawsuits who bought 4x4s got about 23% less lumber than “advertised and represented” by both retailers, the complaints allege. They say the practices of Menards and Home Depot “cause substantial injury to consumers.”

Both retailers dispute that.

“Plaintiffs received exactly what they were supposed to receive — lumber that complies with applicable standards,” a court document filed by Menards contends.

A Menards spokesman declined to speak about the case. A Home Depot spokesman said only that the firm disagrees with the claims.

The cases name three plaintiffs — two against Menards and one against Home Depot.

The Menards plaintiffs bought their lumber at stores in Gurnee and Fox Lake, Ill., in November. The Home Depot plaintiff bought his lumber at a store in Palatine, Ill., in December.

As Turin described it, all three men wanted the lumber for home-improvement projects, got home and measured the pieces, felt they had been deceived and then turned to the law firm.

Asked whether it was coincidence that three different men found the same sort of issue with lumber first at Menards and then at Home Depot, and then all decided to go to McGuire Law, Turin said he couldn’t comment.

“It’s kind of attorney-client privilege in terms of how the clients were retained, and the circumstances of our retainer of them,” he said. “They did freely come to us.”