9th Circuit Hammers Home Depot Tool Rental Class Action Lawsuit

A California man’s attempt to achieve certification for a class action lawsuit over extra fees tacked on to Home Depot tool rentals was blocked on Feb. 3 by the U.S. Court of Appeals for the Ninth Circuit.

Plaintiff Benjamin Berger had alleged four causes of action that revolved around a business practice of Home Depot. He and his class action lawyers argued that the company did not advise consumers that when they signed a contract for a Home Depot tool rental that they could opt out of a waiver. That feature added an additional fee but in return consumers would not have to pay for a replacement if they broke the equipment.

A lower court denied certification of the Home Depot tool rental class action lawsuit in 2011, but Berger appealed the decision in August 2013, arguing that the District Court judge erred in his assessment that the Class he was trying to establish was too broad.

When reviewing the Rule 23 guidelines for class certification for Berger’s case, however, the Ninth Circuit panel wrote that they encountered several problems. The first was that the plaintiff could not adequately represent the several sub-classes outlined in the amended class action; They had to be divided because Home Depot’s tool rental contracts changed on multiple occasions, yet Berger’s counts were only dependent on one.

Even if the Home Depot class action lawsuit was trimmed to just the Class of home improvement consumers who were governed by the same tool rental waiver contract as the California man, the Ninth Circuit still had concerns. They agreed with a lower court judge who wrote that violations of California’s Unfair Competition Law and Consumer Legal Remedies Act, among other alleged violations, require a systematic set of actions by an entity.

Instead, Berger was unable to demonstrate that all Home Depot employees obfuscated or omitted mention that the tool rental waiver was optional. The appeals court noted that “variance over time and among the different Home Depot locations throughout California is a crucial issue, which the district court reasonably held must be resolved on an individual rather than a class-wide basis. Further, any oral notice given by Home Depot employees about the optional nature of the damage waiver during a particular rental transaction would necessarily be a unique occurrence.”

As a result, the amended class action lawsui tcould not satisfy the Rule 23 for typicality, as there was not enough information to support that each consumer experienced the same interactions with store personnel regardless of the different contracts used over the years.

Berger is represented by class action lawyers Taras P. Kick and Thomas A. Segal of the Kick Law Firm APC.

The Home Depot Tool Rental Class Action Lawsuit is Berger v. Home Depot USA, Case No. 11-cv-55592, U.S. Circuit Court of Appeals, Ninth Circuit.