False Reports Results in Class Action Targeting Terminix

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A lawsuit seeking certification as a class action was filed against Terminix International in U.S. District Court in Sacrament, California February 8, 2011. The suit alleges that Terminix engages in three unlawful practices in the sales and service of contracts that promise to prevent subterranean termites by application of liquid chemicals and other techniques.

Terminix’s effort to manipulate transparently weak investigatory practices by the Structural Pest Control Board in California (“SPCB”) resulted in the world’s largest termite prevention company certifying that it performed a complete termite treatment of Edvard Eshagh’s Turlock, California building. Mr. Eshagh asked regulators to check-up on Terminix after people started falling through floors that were eaten-up with termites.

Terminix performed a third treatment for termites in ten years after floors collapsed a second time in 2009. Terminix again promised its loyal customer the company performed the “necessary services” to prevent termites and that no corners had been cut. Terminix’s manager asked him to continue to trust them as he had for ten years.

Eshagh decided to ask regulators to look into Terminix’s service for the same reason he hired Terminix in the first place in 1999: Because he is not an expert and does not know how to prevent termites. Regulators claimed that the agency investigated and reported to Eshagh that Terminix had treated “all probable entry points” for termites. However, regulators concealed that they actually did nothing to determine whether Terminix did a full treatment other than ask Terminix. Terminix, obviously familiar with this business-friendly, cozy investigatory technique said it did the treatment. Regulators assured Eshagh everything was fine.

When Eshagh asked regulators how they could state that opinion without looking at the measurements of his building, the agency revealed that it really was not doing an investigation. According to SPCB representatives, all they were doing up to that point was “mediating” a dispute. This meant they were just passing accusations between the consumer and company. The lesson? California consumers should be very wary when dealing with the Structural Pest Control Board. What looks like an investigation to help may be a shell game that results in false assurances.

When Eshagh made clear that he would not tolerate the SPCB failing to do a thorough investigation, the SPCB had one man drive to Turlock to inspect. The investigator asked the consumer how he wanted the investigation conducted. Eshagh failed to fall for that too. He told them to evaluate the service Terminix performed (or failed to perform) dating to 1999 like an expert should since he lacked the necessary expertise. The SPCB refused. All the SPCB said it would do is to evaluate whether Terminix did the treatment and prevention service promised in recent inspection reports.

The SPCB said Terminix had not treated all probable entry points for termites. The agency also revealed that doing so would be impossible. Structural problems exist at the building that Terminix should have corrected before trying to apply the necessary poisons. Terminix and the regulators who should have looked over Terminix’s shoulder have never disclosed this. If Eshagh had not gone to extraordinary lengths he would have never learned the truth.

The SPCB ordered a full treatment but Terminix will not do it the way it should have been done in 1999. Content that he and consumers will not get the help they need from Terminix or the regulators in California, Eshagh filed a class action complaint on February 8, 2011 in federal court in Sacramento, California.

The class action seeks to certify a class of customers with subterranean termite contracts that promise to provide the “necessary service” to prevent termites with liquid chemicals. Terminix’s practice is not to provide these services in two particulars, according to the complaint.

First, Terminix provides only a “local” or “spot” treatment that it unlawfully claims will protect the whole structure. According to the complaint, this representation and practice is specifically prohibited by a statute in California. In fact, it is a crime.

Second, Terminix fails to disclose that termite prevention and good inspections are impossible if a building has stucco in contact with the earth. This condition exists at Eshagh’s building and most buildings in California.

In addition, Terminix’s contracts are unlawful because they contain an opaque clause in fine print on the back of its form contract that seeks to excuse Terminix from its duty to ever perform the service it promises on the front page of its contract. That trick is also illegal under SPCB laws. In its investigation, however, the SPCB refused to look at the contract because it had been issued in 1999 and the SPCB said it never looks at records older than four years. It is hard to see the truth when you close your eyes. The complaint also challenges this unlawful practice.

In addition to money damages, the complaint seeks an injunction to stop the unlawful practices and orders that force Terminix to provide the termite prevention services it has already promised to perform.

Eshagh is represented by H. Tim Hoffman, Arthur Lazear and Chad Saunders of the Hoffman and Lazear firm in Oakland, Ca. in addition to Tom Campbell and Keiron McGowin of Campbell Law PC. Hoffman and Lazear and Campbell Law have and successfully collaborated on other pest control cases in the Western United States. Both firms are top-rated by Martindale-Hubbell, the nation’s oldest and most widely respected lawyer rating agency.