Settlement update in ChoiceDek decking class action

In early July, we reported on a class-action claim targeting Advanced Environmental Recycling Technologies (AERT) and Weyerhaeuser, respectively the manufacturer and distributor of ChoiceDek, a composite decking and railing product sold at Lowe's.

At the time of our earlier post, the complaint had yet to be resolved, and its approval still faces a January 8, 2009, fairness hearing before final approval. The companies have recently agreed to a settlement, though they still deny that their product is susceptible to mold and mildew that resists easy cleanup.

As the owner of a ChoiceDek deck, you're part of the established class if you bought the material from January 1, 2004, through December 31, 2007, or later if the manufacture date stamped at the end of decking boards indicates the product was made between January 1, 2004, and October 1, 2006.

Under the terms of the settlement agreement, you must prove you qualify for membership in the class and that your decking has significant mold spotting. You'll need to supply details about the deck installation and cleaning history within six months of the final approval of the settlement. If you meet these conditions, AERT will clean your deck and apply a mold inhibitor to your deck, both at no cost to you.

If mold returns within six months of the cleaning and boards are gapping by at least 3/32 inch, you might be eligible to get back 100 percent of what you paid for the decking, replacement ChoiceDek decking, or three additional free deck cleanings. If the mold and the same gapping occur 12 to 18 months after the cleaning, you'll get a $250 Lowe's gift card or two coupons for discounted cleanings. Up to 18 months after an AERT cleaning you can get 100 percent reimbursement for the decking, replacement decking, or three free cleanings, but you must meet the conditions outlined in the agreement.

For more information on the settlement or to get a claim form, visit the settlement site or call 877-220-6624.—Ed Perratore

Essential information: Read about the best decking materials in our latest report. Also learn how to choose a deck, check out the different decking types, and keep your deck safe and in tiptop condition. And don't forget to use our new Home Improvement Guide interactive, which offers buying advice on appliances, tools, and building materials for every area of your home.

Mold can be a problem for some front-loading washers

Front-loading washing machines are more efficient than traditional top-loading washers. Sure, you’ll pay a $400 to $500 premium over the average top-loader, but your electricity and water savings should offset the added expense over the lifetime of the appliance. Plus, front-loaders are among the highest-rated washers in our tests.

But front-loaders don’t have a spotless reputation. We’ve received myriad comments from readers about water left behind at the end of the wash cycle, bleach spotting, excessive vibrations, unhelpful service reps, and other complaints common to all washers. But one issue seems unique to front-loaders: mold buildup in the rubber gasket of the door and the resulting odor on clothes.

The mold problem is so widespread that class-action suits are targeting LG, Whirlpool, and Sears, whose Kenmore front-loaders are made by Whirlpool. The Maytag Neptune front-loading washer line has been part of a similar lawsuit, for which a settlement was reached.

One Consumer Reports reader had a Whirlpool Duet for four months when it and her family’s clothes began to smell of mold. She contacted the manufacturer, which she says told her to clean the machine twice a week with bleach, wipe the door down after each wash, and leave the door open to dry it out. “I work full time and have five children—four who do their own laundry,” says Merryl Nall of Collierville, Tennessee, says. “Needless to say, that would not work.” Whirlpool took back the washer, and Nall has switched to a top-loader. (You'll find more discussions about mold in washers in this forum.)

Mold, according to the federal Centers for Disease Control and Prevention, can cause symptoms that include nasal stuffiness, eye irritation, wheezing, or skin irritation, fever, and shortness of breath. For people with chronic lung illnesses, mold infections can develop in their lungs. And exposure to mold can also bring on asthma attacks.

Suggested remedies to the mold problem abound. Whirlpool sells Affresh tablets as a way to clean washer residue and mold. Sears warns against using non-HE detergents, cleaners that could create conditions for mold growth. And LG recommends that once or twice a month you run a special hot cycle to which you add bleach to clean the washer.

Our advice:
• When washing, use warm or hot water unless a load requires cold.
• Wipe the door gasket and glass dry once you’re done washing.
• Clean the detergent dispenser and any attachments once or twice a month.
• Run a dehumidifier if your laundry room is damp.

If you see mold buildup in a front-loading washer, call the manufacturer for service and save all paperwork related to the purchase and service of your machine. In the Maytag Neptune settlement, plaintiffs eligible for restitution needed to document multiple authorized repair visits made during the warranty period and soon after the warranty expired.

In response to the many reader letters we've received, we're asking owners of front-loaders whether repairs they’ve had done to their washers relate to mold alone. We’ll report on the findings from the Annual Questionnaire, conducted by the Consumer Reports National Research Center, in future stories.—Ed Perratore

Tip of the Day: Improve neighbor relations via mediation

When I first moved to New York City, my upstairs neighbor used to play R&B all night, every night. It could have been worse (heavy metal, Lawrence Welk), but I suffered through many restless nights. Fortunately, I eventually moved. But the memory sticks, and it came back in Dolby sound during my reporting of "Neighbor Wars," from the September 2008 issue of Consumer Reports.

Two themes emerged as I spoke with experts and homeowners around the country. First, there are a lot of neighbor disputes out there. Second, no matter how trivial the conflict, it causes serious stress for everyone involved. “When you own your home, you have a commitment to the people around you,” Emily Doskow, a Berkeley, California-based attorney and co-author of Neighbor Law (Nolo Press, 2008), told me. “If you’re having a conflict with, them it raises enormous quality-of-life issues.”

I was surprised to learn just how extensive a network exists for feuding neighbors. The industry term is mediation, and it involves a neutral third party helping neighbors settle their differences. The goal is to open the lines of communication, rather than say who’s right or wrong.

Mediators, many of whom are local volunteers, can be brought in at any stage of a dispute. “We like to say is ‘It’s never to early, it’s never to late, don’t fight with your neighbor, mediate’,” explains Lorig Charkoudian, executive director of Community Mediation Maryland, a nonprofit group that provides training to mediation centers. Today there are 400 community-based mediation centers nationwide; services are either free or on a sliding scale. Homeowners can also hire a private mediator, often an attorney who will charge higher fees but may be more familiar with the intricacies of the law than a community mediator.

I wish I had known about mediation all those years ago, when the R&B reverberated through my floorboards each night. Who knows, maybe my neighbor and I would even have hit it off. At the very least, the mere thought of R. Kelly might not keep me up at night.—Daniel DiClerico

Essential information: Read about another New York City neighbor dispute that was settled by an unexpected source of mediation, and see how trees are often the root causes of neighbor disputes.

Q&A: Who's responsible when my neighbor's tree falls on my roof?

During a recent storm, a branch from my neighbor's tree fell onto my roof. Who's responsible for the repairs and cleanup?

Unfortunately for roofs everywhere (not to mention shiny new sedans in driveways), this is an all-too-common query. In the September 2008 issue of Consumer Reports, we report that trees are among the most common causes of neighbor disputes. Couple that with the extreme weather now gripping the nation, and that's a lot of fallen tree limbs setting off some serious border wars.

So who has to pony up for the damages? The answer—as it often is where the law's concerned—is, that depends. If your neighbor knew, or should have known, that the branch was unsound, he or she is guilty of negligence and is thus responsible.

But unless the neighbor is a forest ranger or tree surgeon, proving negligence can be tricky. You might argue in court that the lack of foliage or visibly diseased bark provides clear proof that the limb in question was unsound. But the judge may not hear that defense, which is why neighbor disputes are best resolved outside the courts.

"You don't control the outcome," says Jonathan Rosenthal, executive director of Alternative Dispute Resolution Programs for the District Court of Maryland. "It's entirely up to the judge, who may only listen to certain evidence." Rosenthal (like everyone we interviewed for the September report) recommends mediation, in which a neutral third party helps feuding neighbors figure out a fair solution.                

But back to the tree branch on your roof. Culpability aside, most homeowners' insurance policies cover damage done by a neighbor's tree. After compensating you, the company may turn around and sue your neighbor, but you'll be spared the legal fees and inconvenience. However, the incident will almost certainly sour neighbor relations.

That's why it's best to address unsound limbs before they come hurtling to the ground. Any large or old trees should be inspected annually. Note that you're within your right to cut back from a neighbor's tree branches that encroach onto your property. As a courtesy, tell your neighbor beforehand. With any luck, the neighbor will share the expense, which can run anywhere from $300 to $1,000—still less than the cost of a new roof or car.—Daniel DiClerico

Essential information: Read our latest report on homeowners' insurance, which includes five ways to cut your premiums. And bookmark our Storm and Emergency guide ahead of the next major weather event.

Class action against ChoiceDek maker, distributor

Our latest report on decking materials found that several composite-decking products were especially prone to mildew growth.

One composite product, ChoiceDek, reportedly has faced such mold- and mildew-growth problems that a class-action claim targeted Advanced Environmental Recycling Technologies (AERT) and Weyerhaeuser, respectively the manufacturer and distributor of ChoiceDek, which is sold only at Lowe's. (The firms representing the plaintiffs are also investigating Trex, the biggest player in composite decking, for acknowledged "surface defects" in some products manufactured from 2003 to mid-2006.)

Composite decking, developed in the early 1990s, is made of wood and either virgin or recycled plastic. An attraction for homeowners is a woodlike appearance without the periodic refinishing that wood decks require. Some composite decking is treated with UV and mildew inhibitors, although in our tests even unfinished wood as a category resisted mildew growth better than composite materials.

The plaintiffs in the class action include owners of ChoiceDek products originally purchased from 2004 through 2007, a group estimated in the tens of thousands. The suit charges that ChoiceDek decking develops "persistent fungal and mold growth" even when installed and maintained as directed. In addition, it claims the defendants knew of the problem, misrepresented the decking by using such terms as "virtually maintenance free" (found in the ChoiceDek FAQ), and worded its limited lifetime warranty to exclude the specific problems experienced by the plaintiffs.

(The Consumer Reports testing photo above shows ChoiceDek subjected to a number of different testing methods in three locations. The decking in the left column depicts unexposed material stored in our lab; the middle column, after one year in a humid environment (Florida); and the right, one year in an arid location (Arizona). The five rows from top to bottom represent the following conditions: unwashed; washed with water and a brush; washed with OxiClean and a brush; washed with Behr wood cleaner; and cleaned with a pressure washer. The spots and discoloration in the middle column are mildew.)

Plaintiffs' experiences noted in the complaint describe decking that within a year developed noticeably large gray and black spots and other discoloration. The growth in the four cases noted reappeared soon after cleaning—even in two instances when AERT sent professional cleaners to do the job.

While both AERT and Weyerhaeuser denied the allegations in the class action, they recently initiated a settlement. Call AERT at 800-951-5117 or 479-756-7400 if you have a concern about ChoiceDek products installed at your home. An AERT spokesperson for the company says the pending solution "will resolve all customer-care matters."

Stay tuned for the settlement terms, which we'll post once any deals are struck.—Ed Perratore

Essential information: To find the best decking, see how a particular material we tested performed in our Ratings of decking (available to subscribers). Also learn how to choose a decking material, read about the different decking types, and keep your deck safe and in tiptop condition. Check out our brand-new Home Improvement Guide interactive, which offers buying advice on appliances, tools, and building materials for every area of your home.

In this neighbor dispute, air-purifier maker clears the air

They say good fences make good neighbors, but in one New York City apartment building, an air-filtration system was key to keeping the peace.

The dispute became known last winter after news stories reported that a couple, lawyers who live in an upscale Upper West Side apartment building, had sued a neighbor on their floor because cigarette smoke was wafting from her condominium into the common hallway. The plaintiffs have a young son whose health, they claimed, was being affected by the secondhand smoke.

New Yorkers love a good real-estate dispute, and this one had the makings of a reality-TV classic (the defendant had also been accused of having her dog urinate on a the plaintiffs’ stroller). But the parties settled the matter out of court, thanks in part to the third-party efforts of Aerus, which makes vacuums and air purifiers.

Shortly after the suit was filed, Aerus offered to install an air-filtration system for free in the defendant’s apartment to help capture the smoke from her cigarettes. In a New York Times article, Joseph P. Urso, chief executive of Aerus, said the filtering system was instrumental to reaching a settlement.

We’re currently working on a story on neighborly disputes, and would love to hear your stories about any nuisances you’ve had to deal with, including issues related to topics like noise, fences, trees, boundaries/property lines, safety, and esthetics.

If you have a compelling tale to tell, send us an e-mail with all the details. As always, we’ll respect your privacy—read our privacy policy—and will keep your information confidential. Please indicate if you’re willing to be contacted by a reporter working on this story.—Daniel DiClerico

Essential information: When you’re in the market for an air purifier, read our latest report on these devices and follow our advice to determine whether you need one and to choose the right model for your home. Ratings of room and whole-house models are available to subscribers.

Update in Sharper Image air-purifier class action

Last fall, a federal judge rejected the latest version of a proposed settlement to a class-action lawsuit filed on behalf of millions of consumers who purchased The Sharper Image's Ionic Breeze air purifier after April 1999. Under the proposed settlement in Figueroa v. Sharper Image Corp., the company had agreed to provide plaintiffs store credit worth $19 for each air purifier they had bought—the machines cost up to several hundred dollars apiece—and to make available at the highly reduced price of $7 an “OzoneGuard” attachment to reduce ozone emissions in each purifier purchased.

Judge Cecilia M. Altonaga, a trial judge in the Federal District Court in Miami, ruled that the parties involved in the class action had not established that the settlement terms were “fair, adequate, or reasonable,” and that arguments referring to The Sharper Image’s “precarious” financial position did not make them so. (The Sharper Image reported a drop in sales for October. Meanwhile, there’s been a significant decline in of the value of the company stock.) The attorneys general from 34 states and the District of Columbia also opposed the settlement.

In her ruling, Judge Altonaga also cited the Senate Judiciary Committee, which before passing the Class Action Fairness Act in 2005 decried settlements in which plaintiffs receive promotional coupons or other nominal damages while the lawyers representing the members of the class action get substantial fees. In Figueroa v. Sharper Image Corp., attorneys’ fees for the plaintiffs totaled $2 million.

Among objections to the settlement was one from a class member who had spent more than $500 on two Ionic Breeze purifiers but would have received only coupons worth $38. “The settlement is plagued by a cumbersome claims process that will make it extremely difficult for class members to even obtain the inadequate relief provided by this settlement,” read the 61-page denial of the settlement. (See Judge Altonaga’s decision here.)

In their suit against Sharper Image, plaintiffs had referred to past Consumer Reports tests of the Ionic Breeze that found, as we said in 2002, “almost no measurable reduction in airborne particles” and judged the model poor at removing dust and smoke from the air. (Consumer Reports’ policy does not permit the magazine to involve itself in litigation between other parties.)

Before the proposed settlement, many of the suits against The Sharper Image had been combined into a single nationwide complaint. Plaintiffs in one of the initial suits against the company had also claimed that the company "falsely advertised that the Ionic Breeze air purifier cleans and purifies the air," and that the Ionic Breeze is harmful because it emits ozone in excess of 50 parts per billion.

Following Judge Altonaga’s decision, The Sharper Image issued a statement expressing that it was “clearly disappointed” in the ruling.—Ed Perratore

Essential information: If you suffer from asthma or allergies or have other concerns about the air quality in your home, you might own or be considering buying a room or whole-house air purifier. As we reported in the December 2007 article “Filtering the claims,” there’s little definitive medical evidence that air purifiers help relieve respiratory symptoms, and some models might pose a threat even to healthy users.

Try these basic air-cleaning steps before you buy an air purifier. If you decide to purchase one, be sure to read our December 2007 report. You'll find buying advice and Ratings of room air cleaners. (Ratings of room and whole-house models are available to subscribers.) To see how those appliances clean the air in your home, read “Purifier types,” plus our updated recommendations on electrostatic precipitators and our warnings about two ozone generators.                            

Proposed settlement in Sharper Image air purifiers case

If you suffer from asthma or allergies or have other concerns about the air quality at your home, you might own or be considering buying a room or whole-house air purifier.

One company whose purifiers we've covered in our previous reports, The Sharper Image, might soon have to offer millions of dollars in merchandise credits to 3.2 million members of a class action that challenged the company's claims about the products' "performance, effectiveness and safety," according to a January 16 filing with the Securities and Exchange Commission. A hearing on whether the recent proposed settlement will be accepted by a federal judge in Miami must be held prior to March 1, 2007.

If you bought any Ionic Breeze air purifier from The Sharper Image after May 6, 1999, you could end up getting $19 merchandise credit as part of the proposed settlement. To qualify for the credit, you must be in the company's customer database as the purchaser of an air purifier or prove that you bought one of the affected models. According to the proposed settlement, you could use the credit only to buy Sharper Image-branded products. There's a limit of one credit per household, and you would have one year to use the credit once it's been issued to you. In addition, you'd be eligible to buy for $7 (reduced from $39.95) the company's "OzoneGuard" attachment that, claims Sharper Image, "instantly converts ozone to oxygen." As we've previously reported, although the attachment does reduce ozone levels, even with this accessory the Sharper Image Ionic Breeze Professional with OzoneGuard adds ozone to a room and was "as ineffective as earlier versions" and does a poor job of removing smoke, dust, and pollen particles from the air.

As part of the proposed settlement, Sharper Image also agreed to dial back some of its claims about its purifiers and remove the seals of the British Allergy Foundation (Seal of Approval) and the Asthma and Allergy Foundation of America (Seal of Truth) from packaging. As we revealed in "The truth behind the accolades," these seals seem a lot more impressive than they actually are.

Finally, the proposed settlement would also require Sharper Image to send its air purifiers to an independent laboratory to test for ozone emissions and not sell any model that has not passed the Underwriters Laboratories standard for electrostatic air cleaners. While denying all allegations, Sharper Image also agreed to pay up to $1.875 million in legal fees to the plaintiffs' attorneys.