Bellwether Complaint Filed in Lumber Liquidators Cases

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By Steven M. Sellers

Sept. 14— A proposed class action led by 13 homeowners from five states will serve as a bellwether for the scores of suits filed against Lumber Liquidators Inc. over excess formaldehyde in the company's Chinese-made flooring products, according to a Sept. 11 filing in the Eastern District of Virginia.

The complaint sets forth claims in cases from California, Florida, Illinois, New York and Texas.

The plaintiffs seek restitution for the cost of Lumber Liquidators flooring products, an injunction barring the company from engaging in “unlawful, unfair and fraudulent business practices,” and individual and class action damages, according to a Sept. 14 press statement issued by plaintiffs' counsel Cohen, Milstein, Sellers & Toll, in Washington, D.C.

The plaintiffs also seek a jury trial, according to the putative class action complaint.

The complaint creates a framework for resolution of pretrial motions in cases from 30 states now centralized in the U.S. District Court for the Eastern District of Virginia .

The filing came in response to a Sept. 3 court order directing plaintiffs' lead counsel to identify—in consultation with lead counsel for the defendants—claims from states with the largest number of Lumber Liquidators stores “or with other characteristics that would capture a disproportionate number of potential class members and best allow common issues to be addressed.”

At least one of the cases was to originate in California, according to the court's Sept. 3 order. California's laws are a significant factor in the litigation not only because at least 35 cases on the MDL docket are from that state, but also because many of the pending cases allege that Lumber Liquidators misrepresented its wood flooring products as compliant with formaldehyde safety standards set by the California Air Resources Board.

Defendants in the litigation have until Sept. 30 to file an answer to the representative complaint or move for dismissal under the procedure set by the court.

Pretrial Approach Disputed

Lumber Liquidators had opposed the pretrial procedure ultimately adopted by the court, which was advocated by lead plaintiffs' co-counsel Steven Toll of Cohen, Milstein, Sellers & Toll. Nancy Fineman of Cotchett, Pitre & McCarthy in Burlingame, Calif., and Steven Berman of Hagens Berman Sobol Shapiro in Seattle, also serve as plaintiffs' co-lead counsel in the litigation.

The company argued for the filing of a single master complaint that consolidated and superseded the 134 individual complaints. It cited inherent due process violations in identifying “representative” cases presenting different parties, class definitions, state law issues and remedies.

“Far from promoting efficiency, this proposal instead invites endless litigation,” defendants' lead co-counsel Diane Flannery of McGuireWoods in Richmond, Va., and William Stern of Morrison & Foerster in San Francisco, contended.

The plaintiffs' proposal, in which a representative complaint would test the laws of five states (California plus two states selected by plaintiffs and two by defendants), was described by Lumber Liquidators as unwieldy and unfair, according to court documents preceding the court's Sept. 3 order.

The court acknowledged in its order that the representative complaint wouldn't resolve issues raised in all cases, but said it wouldn't allow the procedure to “unduly delay the court's dealing with any other preliminary issues raised by these other cases or affect the nature, scope or timing of discovery as to all cases.”

State Cases Also in Play

Lumber Liquidators faces related litigation in at least eight state cases in six states, according to recently-filed court documents. The company reported ongoing proceedings in cases filed in California, Florida, Illinois, Indiana, New Jersey and Virginia.

To contact the reporter on this story: Steven M. Sellers in Washington at

To contact the editor responsible for this story: Peter Hayes at

For More Information

The complaint is available at