Class action seeks $5 M from lawn mower manufacturers for deceptive advertising

Michelle Massey, East Texas Bureau Sep. 11, 2008, 6:48am

MARSHALL -- A recent class action claims several companies have misrepresented the horsepower of their lawn mowers and mower engines in an attempt to charge higher prices.

Class representatives, Gene Bennett, Clarence Laird and Laci Canion filed the class action complaint against Sears, Deere & Co., Tecumseh Products, Briggs and Stratton, Kawasaki Motors, MTD Products, Toro Company, American Honda Motor, Electrolux Home Products, Kohler Company, Platinum Equity, and Husqvarna Outdoor Products.

The suit was filed Sept 10 in the Marshall Division of the Eastern District of Texas.

According to the complaint, these companies have used horsepower to "label, categorize, and market" their lawn mowers and lawn mower engines.

"The more horsepower generated by a lawn mower's engine, the better and faster the lawn mower is able to perform," the court records state.

The class action is seeking more than $5 million in damages, specifically asking for a rescission of each sale and for the disgorgement of all profits from over-payments.

The complaint alleges that these companies, since 1994, knowingly misrepresented the horsepower through statements and representations, which include product labeling and owner's manuals.

Horsepower labels allowed for a "fudge factor of up to 15 percent to be added," the complaint says.

The plaintiffs argue that the misrepresentations allowed the defendants to market and sell identical engines as different products at different prices.

The suit claims that many of the companies formed groups to discuss labeling standards. Deere, Tecumseh, Briggs and Stratton, Kawasaki, MTD, Toro, Honda, Electrolux, and Kohler formed the "Power Labeling Task Force," which the plaintiffs allege was used to "meet, discuss, conspire, conceal, and further their fraudulent horsepower misrepresentations."

The Power Labeling Task Force created a disclaimer titled "Understanding Horsepower" and placed it on the Outdoor Power Equipment Institute's Web site.

The complaint argues this information further misled the public and was an effort to conceal the fraudulent horsepower labeling practices. The Web site discusses such factors as atmospheric conditions as a contributing to the lack of horsepower.

Plaintiffs charge that many other labeling methods were used to conceal the actual horsepower generated by the respective lawn mower's engine. These methods included the use of "gross" horsepower, which is the theoretical horsepower an engine could achieve under ideal laboratory conditions. Or the use of the "torque" on lawn mower engine's labels, despite that "engineers assert that torque is not an appropriate quantifier of power," the plaintiffs state.

In addition, the complaint states the fraud is demonstrated through the disparity between the lower horsepower reported by the manufacturers to the government and the "false, far higher" horsepower misrepresented to the public.

The proposed c lass will include every Texan and Texas corporation (with assets less than $25 million) from 1994 that has acquired by purchase or lease a lawn mower with an engine manufactured by defendants with horsepower less than represented.

Causes of action filed against the defendants include breach of express warranty for goods, breach of contract, conspiracy, Texas Deceptive Trade Practices-Consumer Protection Act violations and unjust enrichment.

According to court records, these defendants currently sell nearly six million lawn mowers in the United States per year.

Jury trial is demanded.

Longview attorneys John D. Sloan Jr., Laureen F. Bagley and Garrett W. Wilson of the Sloan, Bagley, Hatcher and Perry Law Firm will represent the plaintiffs and the proposed class.

U.S. District Judge T. John Ward is assigned to the litigation.

Case No: 2:08cv00344

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