Tom Clyde: The great lumber fraud |

Tom Clyde: The great lumber fraud

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Congratulations, you may already be a plaintiff. That’s right, without ever talking to a lawyer, the odds are pretty good that you are a party to a lawsuit filed by some law firm you never heard of that is going to sue some corporation back to the stone age because of an injury you have suffered and might not even be aware of.

Such is the nature of the class action lawsuit. Somebody finds some grievance — real, imagined, serious or insignificant — and decides to pursue justice on behalf of all the other people in the country who were similarly aggrieved. For a 30 percent or 40 percent piece of the action.

The class action isn’t without its purpose. There are cases where corporate behavior has in fact caused harm. If the amount of the individual damage is too small to justify suing on your own behalf, the corporation would get away with the bad behavior. But with a class action, it’s possible to aggregate several million claims worth $1.25 each, and have one lawsuit cover everybody. Thinking back over the last few years, I’ve been compensated for being over charged by iTunes for books I purchased, a few bucks from some shady stock trading and maybe a couple of others.

The biggest class action payout I’ve had was the criminal diesel Volkswagens. The court forced VW to buy the cars back at a price that was, frankly, kind of ridiculous. Had I known in advance the settlement would be so generous, I would have gone out and bought a couple more diesel VWs. When my car went off to the crusher last December, I thought that was the end of it.

But I got another check in the mail this week from the company that made the computer that lied to the emissions testing equipment. The car polluted 40 times more than it was supposed to, all while being marketed as a “Clean Diesel.” So sometimes a class action lawsuit is appropriate.

But not always. This week, news broke of corporate malfeasance so appalling that you wonder how they can stay in business. According to a lawsuit filed in Milwaukee, Home Depot has been selling lumber called “4 by 4s” that actually measures 3 ½ by 3 ½ inches. The lawyer filing the suit said that was a substantial injury to consumers.

The store responded by saying anybody who didn’t know that planed lumber is smaller than the rough dimensions shouldn’t be allowed to hold a hammer. A 2 by 4 doesn’t measure 2 by 4 inches. It’s 1 ½ by 3 ½ inches and has been since, I don’t know, maybe the invention of the nail.

I’ve purchased a lot of 4 by 4s over the years, some from Home Depot. I’m sure I will be asked to join in the litigation to seek redress for this shocking fraud. I’ve been struggling to figure out what my injury might be. When I wasn’t able to put my finger on it, I went for a bike ride. Maybe some vigorous exercise would refresh my memory of the anguish, pain and suffering I had endured as a result of buying lumber that didn’t quite live up to its name. It didn’t help.

No matter how hard I thought about it, I was unable to find an injury. All the 4 by 4’s I’ve purchased did what they were supposed to do. They met the building code requirements (not that anybody cares about building codes on a farm), all while being a half-inch undersized.

Oddly, the suit is limited to 4 by 4s. The same nefarious misrepresentation applies across the spectrum of dimensional lumber, so 2 by 4s, 2 by 6s, right up to undersized 2 by 12s are all a half-inch shy of their stated size. Shocking. You wonder if the building inspectors are complicit in this fraud.

There is much to complain about when purchasing lumber these days. If you can find a straight board, it’s because somebody made a mistake. Home Depot’s lumber is always full of random staples that cut your hand and wreck your saw blade. The last 4 by 4 I bought was green as if cut the day before. It leaked sap from every pore and ruined a paint job. The fact that it measured only 3 ½ by 3 ½ really didn’t matter. If it had been a full 4 inches, it wouldn’t have matched up with the other framing around it, which was all made up of 3 ½-inch 2 by 4s. I would have had to cut it down to fit. Now that would be something to complain about.

I hope that at the first hearing, the judge throws it out and, for his own safety, bans the lawyer from ever touching power tools.

Tom Clyde practiced law in Park City for many years. He lives on a working ranch in Woodland and has been writing this column since 1986.

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