Trex Co., Inc., manufactures composite decking boards made from recycled plastic and wood fibers. Trex claims its boards are low-maintenance and protect against moisture, preventing rotting, fungus, and deterioration. Trex also tells consumers that decks made from its composite will require only occasional cleaning, without staining or painting, to look beautiful for years.
The boards—which cost much more than regular wood decking—are defective, however, because the wood fibers are not properly encapsulated and hold moisture in, causing mold to grow from the inside out. Thousands of consumers noticed mold, fungus, or black spots over large portions of their decks within two years of purchase. When they complained, Trex told them to buy an expensive, time-consuming deck cleaner that would remove the stains. But it often did not remove the stains, and if it did, they came back.
When consumers made warranty claims, Trex agreed to refund or repair only the decking itself, without paying for shipping, replacing the necessary hardware, or labor to remove and dispose of the defective decking and rebuild the deck using replacement materials.
Twelve consumers filed a class action against Trex, alleging breach of express warranty and breach of implied warranty of merchantability under the Magnuson-Moss Warranty Act, the Uniform Commercial Code, and several state consumer protection laws. The plaintiffs claimed that purchasers did not see the warranty until after they purchased the product and that disclaimers detailing excluded costs were inconspicuous. They also contended the warranty was unconscionable because Trex knew that the product was defective and that its covered costs would leave consumers paying thousands more.
Trex agreed to a settlement with a value capped at $8.25 million. Class members must submit proof of purchase and photos or videos proving the deck is moldy. If they can show they unsuccessfully cleaned the deck once with the recommended cleaner, they can receive $150. If they cleaned the structure twice and can prove mold grew back each time, they will get $18 for each cleaning product they purchased and a certificate for 40 percent off the purchase of new, nondefective Trex decking. Class members whose decking has a specific gravity are entitled to select either 50 percent off, plus $.23 per linear foot for labor, or a cash refund of 20 percent of the original purchase price.
Trex also agreed to discontinue the defective product, post a video on its website demonstrating how to clean the mold, and ensure that retailers display the warranty near the product.
The court has granted preliminary approval.
Citation: Mahan v. Trex Co., Inc., No. 3:09-cv-00670 (N.D. Cal. Aug. 26, 2013).
Plaintiff counsel: AAJ member Steve W. Berman and Robert F. Lopez and Kim D. Stephens, all of Seattle; Jeff D. Friedman, Berkeley, Calif.; AAJ member Johnathan D. Selbin and Nimis R. Desai and Michael McShane, all of San Francisco; AAJ member Elizabeth A. Alexander, Nashville; AAJ member Robert D. Gary and Jori Bloom Naegele, both of Lorain, Ohio; AAJ members Richard S. Lewis, James J. Pizzirusso, and Charles L. LaDuca, all of Washington, D.C.; and AAJ member Robert K. Shelquist, Minneapolis.