“tougher” and “durable” aren’t puffery for shingles

Stern v. Maibec Inc., 2018 WL 1586323, No.
11-cv-3951(PGS)(TJB) (D.N.J. Apr. 2, 2018)
Maibec makes eastern white cedar shingles and offers a
50-year limited warranty against wood decay and a warranty against stain
failure. Its website touted eastern white cedar as “very durable and requires
very little maintenance.” Its brochures claimed: (1) “Timeless. Traditional.
And tougher than ever.”; (2) “At [M]aibec, we have spent the last four decades
improving the way white cedar shingles are made. Today, they are engineered to
be so durable that you just might consider them high tech.”; (3) “Best of all,
[M]aibec shingles are guaranteed to last”; and (4) “The fact that they are low
maintenance and look even better as they age is just an additional benefit.”
Plaintiff Stern alleged that she chose Maibec shingles over
a competitor’s based on her understanding that they offered the same warranties
and were maintenance free. She alleged that her shingles were warping, cupping,
and lifting three years after installation, and that a Maibec employee who inspected
her house concluded that the warping and other issues were not due to improper
installation. Plaintiff McCaffrey had a similar story.
As indirect purchasers, plaintiffs had no breach of contract
claims.  However, the court refused to
dismiss claims based on express warranties in Maibec’s ads. Maibec contended
that it never guaranteed “no maintenance” and the statements on its website
were mere puffery. The court identified “tougher than ever”; “they are
engineered to be so durable that you might consider them high tech”; and
“[they] are guaranteed to last” as statements that weren’t mere generalized
claims of superiority, but emphasized the shingle’s durability and low
maintenance.  These were objective
representations, not subjective. “Although not quantifiable, these statements
are not so grandiose or lofty as to be considered subjective; rather, these
statements leave a reasonable reader to expect the shingles to withstand the
elements of nature and last for an extended period of time.”  Nor were they incapable of influencing consumer
expectations due to how exaggerated they were.
Maibec next argued that the plaintiffs couldn’t show
reliance, since neither recalled reading or viewing the statements on the
website. However, they generally claimed to have relied on statements made on
Maibec’s website in deciding to purchase Maibec shingles. A reasonable
factfinder could find reliance.
Breach of implied warranty and merchantability claims failed
for lack of privity, which is required to recover for economic loss in New York.
 
GBL Section 349 claims were governed by a three-year statute
of limitations, and for its purposes, the injury occurs on the date that a
product is purchased, delivered, and installed. Thus, at least one plaintiff’s
claims fell outside the statute of limitations; further factfinding was
required for another, whose claims survived for the reasons noted above with
respect to the warranty claims.

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