Illinois Southern District Judge Nancy Rosenstengel
EAST ST. LOUIS — A federal judge has unplugged a class action regarding lithium-ion batteries used in consumer power tools, which allegedly overheated and caught fire.
Anthony Desparrois sued Lowe’s Home Centers and Chervon North America, which makes SKIL-brand tools, over allegedly dangerous lawn tools. Desparrois filed the complaint in St. Clair County Circuit Court before Chervon removed it to federal court.
In a Feb. 25 opinion, U.S. District Judge Nancy Rosenstengel dismissed the complaint.
According to Rosenstengel, Chervon issued a recall on about 63,000 batteries in December 2024 covering products made before May 2021. The batteries were allegedly used in all SKIL 40V tools and in combination with at least two model of battery-powered lawn mowers.
Chervon imported the batteries from China and said they were sold nationwide as far back as October 2019 for about $170 as standalone items or $400 when sold in combination with lawnmowers.
The recall noticed followed the Consumer Product Safety Commission tallying 100 reports of “thermal incidents” along with eight instances of minor burns and or smoke inhalation and 49 property damage complaints. In his complaint, Desparrois alleged he suffered minor hand injuries. He sought to certify a nationwide class and an Illinois subclass for claims of unjust enrichment, express and implied warranty breaches and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.
He said Chervon’s recall offer — refund or replacement — was inadequate, in part because the company “requires consumers to register for the recall online and keep the dangerous products until they can be packed into a ‘battery collection kit,’ ” Rosenstengel wrote. “Then, consumers must ship the products through the mail to Chervon. Assuming the products make it back to Chervon, which is questionable considering the products may ignite and destroy themselves, Chervon will then provide a refund or exchange” without guaranteeing the replacement batteries are any different or safer or offering any compensation for damages or being required to store the products.
Rosenstengel agreed with Chervon’s contention that Desparrois’ hand injury is irrelevant to his standing to sue because the complaint seeks no relief based on that physical condition, but rather “revolve around the lost benefit of the bargain from purchasing a product he would not have purchased or paid substantially less for had he known of the risk of overheating and fire.”
Chervon and Lowe’s pointed to a 2024 U.S. Seventh Circuit Court of Appeals ruling regarding a recall of infant formula products made by Abbott Laboratories and acknowledged that while economic harm can sufficiently confer standing, that isn’t so for allegations involving a “past potential risk of harm resulting in economic losses” when found to be “hypothetical or conjectural.”
The key distinction between that action and other liability lawsuits is whether every product sold in a specific category is determined to be defective, Rosenstengel said. Adopting Desparrois’ position, she said, could contradict the Abbott court’s ruling against the possibility that “any purchaser of a good that functioned precisely as expected without any risk of future harm could bring suit if they later discovered undisclosed information, even if it only affected others.”
However, Rosenstengel said, Desparrois' complaint did allege all 63,000 batteries were defective, even if they had not yet overheated and melted. She further agreed he adequately claimed the offered recall was insufficient. She further rejected arguments that the refund offer negates the lawsuit, pointing again to Desparrois’ claim the company didn’t offer full compensation, and said his allegations aren’t speculative.
But Rosenstengel agreed that Desparrois lacked the standing to seek an injunction by failing to show the likelihood of further injury, then decided to dismiss the complaint for a failure to adequately state a claim.
She first agreed Desparrois didn’t follow a Uniform Commercial Code requirement to notify the companies of the warranty claims, saying general knowledge of product concerns isn’t sufficient under a state law requirement a seller needs to know about the specific details of a buyer’s claim. And even if he had provided notice, she said, she’d still dismiss the breach of express warranty claim because his complaint didn’t expressly state the terms of the contract he alleged Chervon violated or any statement implying a safety promise.
Under state consumer fraud law, Rosenstengel continued, the complaint falls short by lacking inclusion of “a single false or misleading statement, representation, promise or warranty” either company made and on which Desparrois relied when making his purchase.
“Nor has Desparrois pleaded the ‘who, what, when, where, and how’ of the alleged deceptive act,” she wrote. “Instead, he has made vague, generic references to unspecified advertisements, which is insufficient to state a claim for deception under the ICFA. … There are no allegations as to what the products’ labeling, marketing, advertising and packaging actually said, which defendant made the false statements, when or where the statements were made, or how the statements were communicated to Desparrois. This lack of specificity dooms Desparrois’ IFCA claim.”
Finally, she said, unjust enrichment cannot survive as a standalone claim. She dismissed all claims without prejudice, giving Desparrois until March 25 to further amend his complaint.
Desparrois was represented in the action by attorneys Troy E. Walton, of the Walton Telken firm, of Edwardsville; and Paul J. Doolittle, of Poulin Willey Anastopoulo, of Charleston, South Carolina.
