158 F. Supp. 3d 607
N.D. Ohio2016Background
- Plaintiffs (consumers from nine states) allege PPG’s "Olympic Rescue It!" wood/concrete resurfacer was marketed as durable and weather-resistant but suffers latent defects (bubbling, cracking, peeling) that damage underlying decks.
- Plaintiffs claim PPG knew of complaints (PPG and retailer websites, customer service) and concealed issues via website edits and altered instructions.
- Plaintiffs assert state-law warranty claims (express and implied), Magnuson-Moss Act, multiple state consumer-protection/false-advertising claims, unjust enrichment, and a request for declaratory/injunctive relief.
- PPG moved to dismiss portions of the First Amended Complaint; it did not seek dismissal of merchantability claims for plaintiffs from MA, MI, and MO.
- The Court applied Twombly/Iqbal plausibility standards and UCC warranty principles in resolving mixed questions of law and fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of label/site limited remedy (refund/replacement; exclusion of consequential damages) | Limitation fails of essential purpose and is unconscionable because products are latently defective and replacement/refund is illusory | Limitation complies with UCC and bars recovery beyond repair/replacement unless buyer was dissatisfied and remedy was not honored | Denied dismissal — whether remedy failed of essential purpose or is unconscionable is a fact question for later stages |
| Breach of express warranty based on label/advertising statements | Label/advertising promises about performance are part of the basis of the bargain and create express warranties | Statements are nonactionable puffery; express warranty limited to satisfaction/remedy on label | Denied dismissal — court finds label descriptions can constitute express warranties and factual disputes preclude dismissal |
| Implied warranty of fitness for a particular purpose (Counts VI, VII) | Products warranted to be fit for resurfacing decks and for specific protective purpose | Plaintiff cannot allege a "particular" purpose distinct from ordinary use | Granted — dismissed (claim requires a particular purpose different from ordinary use) |
| Implied warranty of merchantability / privity (Counts IV, V) | Plaintiffs argue exceptions (direct dealings, third-party beneficiary) to avoid privity bar | PPG: privity required in several states; no sufficient facts showing agency or third-party beneficiary status | Mixed: merchantability claims dismissed with prejudice for Washington plaintiffs; dismissed without prejudice for California, Ohio, and New York plaintiffs for failure to plead privity; survive for states where privity not required (e.g., MA, MI, MO) |
| State consumer-protection and fraud-based claims (Counts IX–XIX) and Rule 9(b) | Alleged misrepresentations set out on labels/web, PPG had knowledge from complaints, plaintiffs relied on labels | PPG: claims not pled with Rule 9(b) particularity; statements mere puffery; lack of causation/knowledge | Denied dismissal — court finds Rule 9(b) satisfied, statements not mere puffery, knowledge and reliance sufficiently alleged |
| Declaratory relief (Count II) | Plaintiffs seek declaratory/injunctive relief regarding PPG practices | PPG opposes; court discretion whether to entertain declaratory judgment | Granted in part — Declaratory Judgment Act claim dismissed (court declines to exercise discretion) |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (application of plausibility standard; context-specific inquiry)
- Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40 (Ohio law on failure of exclusive remedy and UCC analysis)
- Zaremba v. Marvin Lumber & Cedar Co., 458 F. Supp. 2d 545 (discussion of remedy limitation, unconscionability, and privity-related issues)
- Bernick v. Jurden, 306 N.C. 435 (reliance may be inferred from purchase when representations tend to induce purchase)