A proposed class action lawsuit against the maker of several paint thinner products has been dismissed in B.C. Supreme Court, with the judge referencing a beloved bit of pop culture to illustrate his point.
“It is sometimes said that life imitates art,” begins Justice Joel R. Groves’ recent decision.
“In terms of the art, and I am perhaps using this term in the broadest sense possible, there is a somewhat notorious episode of the television show called The Simpsons, in which the fatherly character, Homer Simpson, is on a tour of a local brewery of the Duff Beer company, the apparent producer of his drink of choice."
The decision goes on to explain the scene from the episode in which it is shown that the same pipe of beer is being used to fill containers of three different products: Duff Lite, Duff and Duff Dry.
“That is the essential allegation in this class action litigation,” the decision reads. “At some point, and for a period of time, the defendant, Recochem Inc. (‘Recochem’), marketed various paint thinners and solvents under various names, citing various qualities of the product, at various different price points, when the contents of the various products were, in fact, identical.”
Groves’ decision indicates that Reochem did not deny the allegation, instead suggesting in submissions to the court that it had made a marketing decision “to price the same product differently, with different language or emphasis as to contents.”
The plaintiff in the case alleged that the company had marketed one product as containing “mineral spirits,” another as being “professional grade,” and a third – with the trademarked name “Varsol” – as “premium quality.”
“The allegation, again not denied, is that these three or four allegedly different products, marketed at different price points, contained the exact same product within their containers,” the decision reads.
Claim rejected reluctantly
The claim alleged various violations of provincial and federal laws, as well as breach of contract, fraudulent misrepresentation and unjust enrichment.
In order for the court to certify a claim as a class action, the claim must pass a five-part test, which begins with the need to “disclose a cause of action.” Groves found the allegations against Reochem unable to satisfy that part of the test.
The judge described the plaintiff’s case as relying on the assertion that Reochem had claimed its differently labeled products had “different attributes” or were of “different quality” from each other, and that this justified a different price for each product.
“Unfortunately for the plaintiff, based on the current state of the pleadings, that claim is speculation,” the decision reads.
“There does not appear to be any representation made by the plaintiff that is fundamentally, or even arguably, false.”
The decision considers each of the many grounds for a claim against Reochem advanced by the plaintiff, but rejects each one because of this fundamental finding.
Pricing different products differently is not inherently a reflection of their quality, the judge noted, adding that none of the claims the company made about any of the individual products was comparative.
Describing a product as “premium quality” or “professional grade” is not a false representation, especially if the product is not being compared to something inferior, Groves’ decision notes.
While he declined to certify the class proceeding as it had been proposed, the judge added that he thought it may be possible for the claim to be “rethought or reformulated” so that a future class action might succeed.
“While not encouraging people to litigate, it strikes me as, perhaps best put, morally concerning that a corporate entity would be so bold as to cleverly market products, all of which are the same, at different price points, with seemingly legal, non-misleading, apparently true, cleverly worded descriptions, in a brazen attempt to maximize profit and to ‘pull the wool’ over the eyes of the ultimate consumer of their product,” the decision concludes.
“I say this in part because the suggestion before me was that at one point in time all these products were different, but a decision was made to simply do the legal equivalent to what the ‘Duff’ beer company did in the noted episode of The Simpsons, market three products as having different attributes, when in fact all the products had all the same attributes."
Because of these concerns about the company’s practices, the judge ordered the parties to bear their own costs in the case.
