Lowe’s Asks Judge to Dismiss Mulch Class Action Lawsuit

Last Thursday, Lowe’s Home Centers LLC asked a California federal judge to dismiss a putative class action lawsuit. The allegations in the Lowe’s class action lawsuit claimed that the home improvement store purposely tried to defraud customers by selling private label bags of mulch that contained 25 percent less mulch than stated on the label.

Plaintiff Glenn McMillan claims that Lowe’s knowingly participated in a short-packing scheme with its private label mulch. His Lowe’s class action lawsuit brings forth allegations of fraudulent misrepresentation against Lowe’s and co-defendant Gro-Well Brands Inc. who manufactured and packaged the mulch they sold to Lowe’s.

McMillan also brings forth claims of violations of California’s Consumer Legal Remedies Act, Unfair Competition Law and False Advertising Law. Additionally, the class action lawsuit alleges violation of the consumer protection statues in all 50 states.

In fact, McMillan’s attorneys hired a private investigator to further support the claims in the Lowe’s class action lawsuit. The private investigator purchased multiple bags of the mulch from several Lowe’s retail stores, then measured the amount of mulch each bag contained. Rather than containing the advertised 2.0 cubic feet of mulch, the investigation reportedly revealed that the bags consisted of about 1.5 cubic feet of mulch, or 25 percent less much than was advertised on the bag.

McMillan stated that as part of short-packing the mulch bags, Lowe’s and mulch makers Gro-Well Brands and Harvest Power Inc. increase their per-bag profit margin and save money on freight costs when there is less mulch per bag. The proposed class action lawsuit seeks more than $5 million in damages as McMillan seeks to represent a Class of thousands of customers.

Lowe’s asserts that the company did not knowingly participate in a scheme as allegations claim. In the request for dismissal of the putative class action lawsuit, Lowe’s said that McMillan “failed to state a claim for relied against Lowe’s primarily because he failed to allege facts showing that Lowe’s, as a retailer, conspired with, directed, or participated in a scheme to short-pack mulch.”

Lowe’s explained, “But absent factual allegations permitting some plausible inference of wrongdoing, Lowe’s cannot be responsible for policing the veracity of all advertising statements that appear on manufacturer’s products.”

McMillan claimed unjust enrichment; however, Lowe’s noted that this claim is not a valid cause of action in California, and suggested that the class action lawsuit should be dismissed.

This is not the first class action lawsuit that McMillan has filed against Lowe’s for their mulch product. Last year, McMillan purchased Lowe’s mulch in Illinois and attempted to sue in Illinois court. Upon learning that the mulch he purchased from Lowe’s in California was from another supplier, he filed a class action lawsuit there as well.

McMillan is represented by Todd M. Friedman of the Law Offices of Todd M. Friedman PC, and Thomas A. Zimmerman Jr., Adam M. Tamburelli and Matthew C. De Re of Zimmerman Law Offices PC.

The Lowe’s Mulch Class Action Lawsuit is McMillan v. Lowe’s Home Centers LLC, et al., Case No. 1:15-cv-00695, in the U.S. District Court for the Eastern District of California.