Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 1 of 27

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1 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSL YV ANIA PATRICIA WRIGHT and KEVIN WEST, on behalf of themselves and all others similarly situated, v. OWENS CORNING, Plaintiffs, Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action No Judge Joy Flowers Conti SECOND AMENDED COMPLAINT NATURE OF THE CASE 1. This is a putative class action on behalf of Patricia Wright and Kevin West (the "Plaintiffs") and a class of all others similarly situated against Owens Coming ("Defendant"), the manufacturer of a variety of roofing shingles used for commercial, industrial, institutional and residential roofing applications. 2. Defendant's shingles are plagued by design flaws that result in cracking, curling and degranulation. Yet Defendant continues to sell them to the public and continues to make false representations and warranties, despite the fact that the shingles are defective and will eventually fail, causing property damage, and costing consumers substantial removal and replacement costs. 3. This class action seeks damages, punitive damages, injunctive relief, costs, attorneys' fees, and other relief as a result of Defendant's willful, wanton, reckless, and/or grossly negligent conduct in causing consumers' homes to be in a dangerous, defective, unsafe, and unfit condition for habitation. 1

2 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 2 of 27 JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1332(a)(2)(A) because the Plaintiffs and Defendant are of diverse citizenship and the matter in controversy exceeds seventy-five thousand dollars ($75,000.00) exclusive of interest and costs. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332(d)(2), because the Plaintiffs and over two-thirds of the Class Members are of diverse citizenship from the Defendant; and the aggregate amount in controversy exceeds five million dollars ($5,000,000.00) exclusive of interest and costs. 5. Venue is proper in this Court pursuant to 28 U.S.C because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred, a substantial part of the property that is the subject of this action is situated, and Defendant is subject to personal jurisdiction, in this District. 6. As a result of Defendant's designing, testing, developing, manufacturing, marketing, distributing, promoting and/or selling, either directly or indirectly through third parties or related entities, of shingles to purchasers throughout Pennsylvania, the Defendant obtained the benefits of the laws of Pennsylvania and profited from Pennsylvania commerce. 7. Defendant conducted systematic and continuous business activities in and throughout the State of Pennsylvania by manufacturing shingle products in the State of Pennsylvania, and otherwise intentionally availed themselves of the markets ofthe State of Pennsylvania through the promotion and marketing of its business. 2

3 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 3 of 27 PARTIES 8. Plaintiff Patricia Wright ("Wright") is a resident of Pennsylvania with an address located in Brownsville, Pennsylvania. Wright purchased and installed on her house defective shingles from Owens Coming in the winter of Plaintiff Kevin West ("West") is a resident of Illinois with an address located in Williamsfield, Illinois. West purchased defective Owens Coming shingles from a professional roofer in approximately August of2005; the roofer installed the shingles on West's house upon delivery. 10. Defendant Owens Coming's principal place of business is located in Toledo, Ohio. Despite warranties to the contrary, and as set forth in more detail below, Defendant's shingles are designed, manufactured, advertised, warranted and sold in a defective manner to scores of putative class members in Pennsylvania and the United States. FACTUAL ALLEGATIONS 11. Upon information and belief, Defendant is, and at all times relevant hereto was, engaged in the business of designing, developing, manufacturing, distributing, marketing, selling, and installing a variety of shingles, including but not necessarily limited to: Berkshire, Woodmoor, Woodcrest, Woodcrest AR, WeatherGuard HP, Duration, Duration Premium Cool, Duration Premium, Duration Non AR, Oakridge, Oakridge Non AR, Supreme, Supreme AR, Supreme Metric, Classic, Classic AR, Classic Metric. 3

4 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 4 of Defendant, according to its February 18,2009 lo-k, "sell shingles and roofing accessories through home centers, lumberyards, retailers, distributors and contractors in the United States." 13. Defendant's 10-K further states that "Owens Coming's Roofing and Asphalt business is the second largest producer in the United States of asphalt roofing shingles and is the largest producer of industrial, specialty and roofing asphalts." 14. Defendant warrants its shingles for 20,25,30, or 40 year terms. The warranties purport to provide reimbursement for some, if not all, of the costs associated with repairing and/or replacing defective shingles. 15. Customers of Owens Coming make purchasing decisions based in part and in reliance upon the information presented by the company on its website, marketing literature, advertisements and warranties. 16. Defendant has knowingly and intentionally concealed, and has failed to disclose that-notwithstanding statements on its website, brochures, advertisements and warranties- its shingles routinely deteriorate by cracking, curling and degranulating far in advance of the expiration of warranty periods. Indeed, Defendant's shingles have deteriorated and will continue to deteriorate at a rate which clearly demonstrates their lack of durability and resiliency. 17. Similarly, Defendant has knowingly and intentionally concealed, and has failed to disclose, that they actually had no intention of providing the services set forth in their warranties. 4

5 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 5 of Defendant has had notice of the deficiencies described herein and has been routinely notified by their customers that the shingle products are/were defective and not functioning as advertised. 19. Not only have the Plaintiffs and Class members suffered damages to the shingle products they purchased from Owens Coming but, as a result of the defective quality of Defendant's shingle products, Plaintiffs and the Class have suffered damage to the underlying structures of their homes. 20. Ignoring customer complaints and concerns, Defendant has failed to implement any changes to its shingle products or warranty procedures to remedy the defects associated with their products. 21. The following represents a small sampling of internet po stings by Owens Coming products purchasers and installers' general frustrations with the defective shingles: I just a filed a complaint with the P A State Attorney General re Owen Shingles. We bought the house when it was 3 years old with owens 20 year warranty shingle. They are defective and owens will pay claims IF YOU ARE THE ORIGNAL OWNER OF THE HOUSE!!! if, like us, you bought the house from another owner, they won't pay. They do not deny the product is faulty or that the limitations of the warranty was not printed on the shingles with the big print number of the years warranted. Owens Coming. I would rather install Charmin if you want to install toilet paper for shingles. I AM PISSED!!! I paid top dollar for a new roof, and paid extra for these new Duration shingles. I put up with construction only to have to do it all over again due to LEAKING SHINGLES! GREAT NEW DESIGN 5

6 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 6 of 27 OWENS CORNING... In my OpInIOn anyone who uses these shingles needs to see his doctor first. We had a new roof put on in Nov 1996 using 40 yr Owens Coming Oakridge Shadow Architectural shingles. Over the last 5 years we have had many shingles split in half and fall off the roof. We had the roofer come back and replace several a few years back. They are continuing to split and fall off. We are now wondering if our shingles could be defective. Owens Coming shingles that were defective when they were installed on my house. My house is 13 years old and I am the original owner. I was told by a roofing contractor that the shingles were defective. (Oakridge II Shingles) I filed a complaint with Owens Coming and the sent me a check for $ , claiming that 51 % of my warranty was used up. The money was for replacement of 46 squares of shingles. I have gotten estimates for as much as $ to install a new roof. Is there a way Owens Coming could be held responsible for more of the replacement cost? Do any of you know of a recall for ownes coming ar shingles? I have been having lots of problems with my '40yr' roof that is actually only 17yrs old. I have shingles splitting and falling off. Owens Coming produced an asphalt shingle labeled as Oakridge Shadow 40, but discontinued it in 2001 (yr?). In 2001, OC advertised a new product, called the Oakridge PRO 40. My home was roofed with the old shingle in 1995, but it started to de granulate within 5 yrs. Thanks for your response. We built to homes two years apart using owens coming 40 yr shingles on both. Owens Coming wants to prorate the labor to reapply the new shingles. This doesn't seem fair when there shingles were defective not my labor. Any way to get them to pay full cost of labor? Owens Coming 30 year shingles - home developed a leak due to 7 year old defective shingles - Owens says 30 year warranty doesn't 6

7 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 7 of 27 transfer when a home is sold - so there is no warranty on the 7 year old shingles I recently bought a 7 year old house with Owens Coming 30 year shingles. We developed a leak: & every Roofer that come out (6 of them) said the shinlges were defective. When I contacted Owens Coming they told me that the 30 year warranty does not transfer when the house is sold. Few weeks ago we had a water leak: from the ceiling, it turned out to be due to defective window however, we found out that all the roof shingles are defected and need to be replaced. The house is about 11 years old, the shingles have a 30yrs warranty however, the company that manufactured the shingles (Owens- Coming) refuses to honor the warranty because we are not the original owners of the house claiming that the warranty is non transferable. I said to stay away from Owens Coming shingles. I don't care what name they put on them they are still Owens Coming and have long been the laughing stock of the industry. 'BBB reliability reports, Owens Coming 27 complaints in 36 months. In the past, an excessive sealant holding power did not allow for proper expansion and contraction of the thinner 3-tab shingles and created cracking of the shingles. We found crackes in the shingles and crackes between the shingles that were not there when applied, some of the shingles did not stick down properly. WE filed a report with Owens Coming we sent pictures and a sample of the shingles we removed from the roof and replaced with new shingles. Owens Coming tells us that the shingles are not defective that there are other problems that caused the shingles to crack. I have talked to them and our contractor has talked to them but they will not payoff on the warrenty and replace the shingles or pay for the water damage to our house inside. 7

8 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 8 of 27 Inadequate Testing of Corning Shingles 22. Upon infonnation and belief, Defendant did not test the shingles in their anticipated environments before selling those shingles to the public. 23. Upon infonnation and belief, Defendant conducted inadequate testing and quality control on the shingles and failed to test for things that they knew or should have known would lead to premature failure of the shingles. 24. Upon infonnation and belief, Defendant failed to investigate or test whether various conditions would lead to premature failure of the shingles. Owens Corning Marketing Omissions 25. Defendant advertised that the shingles were safe, reliable and worry-free despite failing to test and determine the reliability of its product when used in the real world. 26. The Defendant represented on its website that: Every shingle we make combines consistent quality with longlasting beauty and maximum protection. Perfonnance is at the heart of every Owens Coming roofing product. part, states: Whoever you are, wherever you live, whatever your style, Owens Coming has a shingle line that is right for you. Every Owens Coming asphalt shingle delivers beauty and perfonnance combined with a very strong warranty. 27. Defendant marketing literature, regarding asphalt Oakridge Shingles, in Home sweet home. It's the place where you want to feel the most comfortable. Safe. Protected. But no matter how much you love your house, it seems the work is never completely done. And if purchasing a new roof is on your to-do list, it may seem like a 8

9 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 9 of 27 daunting task. But you don't have to worry about it anymore. We're here to help. You can feel confident about choosing our roofing products-owens Coming has been a recognized leader in the building materials industry for over 65 years. We're known for making homes more comfortable, beautiful and durable. This is your chance to choose a roof that not only has outstanding performance, but also has exceptional beauty. One that can transform the look of your entire home. So for years to come, you'll feel great every time you pull in the driveway. Safe. Protected. Home. 28. Among other false and inaccurate representations regarding its shingle products, Defendant marketed its Oakridge Shadow Shingle as "offering premium protection and enduring value... [c ]onstructed with the most weathering grade asphalt available and a tough Fiberglass mat." 29. Defendant and its authorized agents and distributors made each of the above described assertions, statements, representations and warranties with the intent and purpose of inducing suppliers, builders, and consumers to purchase and install the shingles in residential and commercial structures in the State of Pennsylvania and elsewhere. However, Defendant knew that these misrepresentations were not true and that the shingles were defective and would not function as promised. 30. Defendant also made numerous material omissions in its literature and uniformly withheld important information relating to the design, reliability and performance of the shingles. 31. Had Defendant not withheld and omitted important information about the design, reliability and performance of the shingles, Plaintiffs and the members of the Class would not have purchased and/or installed them in their properties. 9

10 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 10 of 27 Plaintiffs' Shingles 32. Plaintiff Wright, through her contractor, had Owens Coming Oakridge Shadow 40 year shingles installed on her house in Plaintiff Wright's contractor purchased the shingles believing them to be a quality product, free of defects. 33. In late 2008 and early 2009, Plaintiff Wright learned that her shingles were deteriorating in numerous locations and that water was leaking into the interior of the house. In March 2009, a roofing specialist confirmed that the Plaintiff Wright's shingles had failed and would need to be replaced to prevent further damage. 34. Plaintiff West, through a roofing professional, had Owens Coming Oakridge 30 year shingles installed on his house in Plaintiff West's roofing professional purchased the shingles believing them to be a quality product, free of defects. 35. In approximately Spring, 2009, West noticed that the Owens Coming shingles on his house were cracking because water was leaking into his house. West made a warranty claim to Owens Coming, but the company denied the claim and stated that the cracking was not caused by a manufacturing defect. West was forced to replace many of the defective shingles, but large portions of his roof still contain defective Owens Coming shingles. 36. Like Plaintiffs Wright and West, other members of the putative Class also purchased defective shingle products and warranties from Owens Coming who, upon information and belief, did not repair or replace the shingle products in accordance with the terms of its warranties. 10

11 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 11 of Plaintiffs and members of the Class have suffered damages as a result of Defendant's deceptive practices, including but not limited to the fact that their roofs have been damaged and the value of their homes have been diminished. While Plaintiffs and the Class are forced to repair and/or replace Defendant's defective shingle products, they were not reimbursed for the costs associated with this exercise, in contravention for the terms of Defendant's warranties. CLASS ACTION ALLEGATIONS 38. Plaintiffs seek to bring this case as a class action, under Federal Rule of Civil Procedure 23, on behalf of herself and all others similarly situated. The proposed Class is defined as: All individuals and entities that have owned, own, or acquired homes, residences, buildings or other structures physically located in the United States, on which Owens Coming shingles are or have been installed since Owens Coming shingles are defined to include without limitation all shingles manufactured or distributed by Defendant and include, without limitation, the following brand names: Berkshire, Woodmoor, Woodcrest, Woodcrest AR, WeatherGuard HP, Duration, Duration Premium Cool, Duration Premium, Duration Non AR, Oakridge, Oakridge Shadow, Oakridge Non AR, Supreme, Supreme AR, Supreme Metric, Classic, Classic AR, Classic Metric. Excluded from the Class are Defendants, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants, and Defendant's legal representatives, assigns and successors. Also excluded are the judge to whom this case is assigned and any member of the judge's immediate family. 39. Plaintiffs reserve the right to re-define the Class prior to class certification. 40. The number of persons who are members ofthe Class described above are so numerous that joinder of all members in one action is impracticable. 11

12 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 12 of Questions of law and fact that are common to the entire Class predominate over individual questions because the actions of Owens Coming complained of herein were generally applicable to the entire Class. These legal and factual questions include, but are not limited to: a) whether the shingle products are defective; b) whether Defendant knew or should have known of the defective nature of the shingle products; c) whether Defendant owed a duty to Plaintiffs and the Class to exercise reasonable care in the design, manufacture and marketing of the shingle products; d) whether Defendant breached this duty; e) whether the shingle products failed to perform in accordance with the reasonable expectations of ordinary consumers; f) whether the shingle products failed to perform for the time warranted by Defendant; g) whether the warranties are unconscionable and unenforceable; and h) whether Plaintiffs and the Class suffered damages as a result of Defendant's conduct. 42. All questions as to the representations and publicly disseminated advertisements and statements attributable to Defendant at issue herein are similarly common. A determination of Owens Coming's knowledge regarding the misleading and deceptive nature of the statements made in its website, brochures, advertisements and warranties and its breaches of contract will be applicable to all members of the Class. 12

13 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 13 of 27 Further, whether Owens Coming violated any applicable state laws and pursued the course of conduct complained of herein, whether Owens Coming acted intentionally or recklessly in engaging in the conduct described herein, and the extent of the appropriate measure of injunctive and declaratory relief, damages and restitutionary relief are common questions to the Class. 43. Plaintiffs' claims are typical of the members of the Class because Plaintiffs purchased defective shingles from Defendant and then installed them in his home. The shingles malfunctioned before the expiration of the applicable warranty period. Plaintiffs, like the Class, has suffered damages associated with the use of Defendant's defective products. 44. Plaintiffs will fully and adequately represent and protect the interests of the Class because of the common injuries and interests of the members of the Class and the singular conduct of Owens Coming that is or was applicable to all members of the Class. Plaintiffs have retained counsel who is competent and experienced in the prosecution of class action litigation. Plaintiffs have no interests that are contrary to or in conflict with those of the Class they seek to represent. 45. A class action is superior to all other available methods for fair and efficient adjudication of this controversy. Plaintiffs know of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action. 46. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent and varying adjudications concerning the subject of 13

14 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 14 of 27 this action, which adjudications could establish incompatible standards of conduct for Owens Coming under the laws alleged herein. 47. The claims of the Class may be certified under Rule 23(b)(1), (b)(2) and/or (b)(3). The members of the Class also seek declaratory and injunctive relief but also seek sizeable monetary relief equal to the warranties to which the members of the Class were deprived. ESTOPPEL FROM PLEADING AND TOLLING OF APPLICABLE STATUTES OF LIMITATION 48. Because the defects in the shingles are latent and not detectable until manifestation, Plaintiffs and the Class members were not reasonably able to discover their shingles were defective until after installation, despite their exercise of due diligence. 49. Owens Coming knew that the shingles were defective prior to the time of sale, and concealed that material information from Plaintiffs and all consumers. 50. As such, any applicable statutes of limitation have been tolled by Owens Coming's concealment of material facts and Owens Coming is estopped from relying on any such statutes of limitation. above. FIRST CLAIM FOR RELIEF (Pennsylvania Unfair Trade Practices and Consumer Protection Law) (Applies to Pennsylvania Plaintiffs) 51. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 52. Plaintiffs and the Class members residing in Pennsylvania purchased Defendant's shingle products 14

15 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 15 of 27 primarily for personal, family, and/or household purposes. 53. Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") makes unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce unlawful. 73 Pa. Cons. Stat Owens Coming's affirmative misrepresentations within its advertisements of its shingle products and its failure to notify purchasers of the defects of its shingle products and of the true nature in which it implements its warranty process took place within the Commonwealth of Pennsylvania and constitute violations of sections 201-2(4)(v), (vii), (ix), and (xxi) of the UTPCPL. 55. The UTPCPL is applicable to the claims of the Class members in Pennsylvania because the conduct of Defendant, which constitutes a violation of the statute, occurred within the Commonwealth of Pennsylvania. 56. Defendant intended that Plaintiff Wright and the Class members residing in Pennsylvania would rely on the false information or deceptive practice so that they would purchase Owens Coming's shingle products and increase the consumption of Owens Coming's products. 57. Had Defendant disclosed this material information regarding its shingle products to Plaintiff Wright and the other members ofthe Class residing in Pennsylvania, they would not have purchased the shingles. 58. As a result of the nature of Defendant's deceptive conduct, Plaintiff Wright and the Class members residing in Pennsylvania suffered pecuniary loss as set forth in greater detail above. A finding that Defendant's conduct violated the law will 15

16 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 16 of 27 also operate as a finding that each and every member of the Class residing in Pennsylvania suffered pecuniary loss. 59. The conduct of the Defendant described herein was knowing, willful and intentional, and constitutes the employment of fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice upon Plaintiff Wright and the Class members residing in Pennsylvania within the meaning of the UTPCPL. 60. By falsely representing that Owens Coming's shingle products were free of defect, despite knowing that this was untrue, Defendant acted maliciously toward Plaintiff Wright and members of the Class residing in Pennsylvania, and also acted with intentional or, at a minimum, reckless disregard oftheir rights. 61. Defendant's conduct described in this Complaint was not isolated or unique to Plaintiff Wright but was widespread, affecting thousands of consumers, and was a regular and intended business practice of Defendant, which was instituted and implemented with a view towards unfairly profiting at the expense of Owens Coming's consumers. 62. Owens Coming had special knowledge of material facts to which Plaintiff Wright and the Class members residing in Pennsylvania did not have access, and, therefore, had a duty to disclose these facts to the other party so as to prevent its statements from being misleading. 63. Pursuant to section of the UTPCPL, and as a result of Defendant's bad faith conduct, Plaintiff Wright and the Class members residing in Pennsylvania are entitled to monetary damages. 16

17 above. Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 17 of 27 SECOND CLAIM FOR RELIEF (Breach of Contract) 64. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 65. During the Class Period, Plaintiffs and Class members, upon purchasing Owens Corning shingles, entered into a contracts and warranty agreements with Defendant. 66. Owens Corning has uniformly breached its contracts and warranty agreements with Plaintiffs and the members of the Class by failing to supply shingle products that were of merchantable quality and fit for the use for which they were intended and by failing to repair andlor replace defects in the shingles. 67. As a proximate result of the aforementioned wrongful conduct and breach committed by Owens Corning, Plaintiffs and the Class members have suffered and will continue to suffer damages and economic loss in an amount to be proven at trial. Plaintiffs and Class members are entitled to damages and injunctive and declaratory relief as claimed below. above. THIRD CLAIM FOR RELIEF (Breach of Express Warranty) 68. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 69. In conjunction with its sale of shingle products, Owens Corning warranted that it would provide an operational product for a particular warranty period or replace the defective product without paying for the labor costs involved. 17

18 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 18 of Defendant breached the express warranties because, as set forth in detail above, they failed to provide customers with a product that would perform the basic intended and essential functions of shingle products for the specified warranty period. 71. Owens Coming has received notice of the breaches of warranty alleged herein, by virtue of complaints made by purchasers of its shingle products. Upon information and belief, Owens Coming has received scores of claims, complaints and other notices from its consumers advising Owens Coming of the defects in its shingle products. 72. Defendant has failed to provide Plaintiffs or the Class, as a warranty replacement, shingle products that conform to the qualities and characteristics that Defendant has expressly warranted are possessed by Owens Coming shingles. 73. Despite requests to do so, Owens Coming refuses to adequately repair or replace its shingles in accordance with warranty terms. As a result, Plaintiffs and members of the Class were forced and continue to be forced to wait for the substantially certain failure of their shingle products and suffer the accompanying losses of money associated therewith. 74. Further, the warranties themselves are unconscionable and unenforceable in that they fail to achieve their specified purpose because they do not provide consumers with an adequate remedy for the failure of the Owens Coming shingle products. The warranties do not provide the means for purchasers to repair and replace either the defective product itself, or structural damages to their homes associated with and caused by these defects. Applying any warranty limitation to avoid the need to repair the defects set forth herein would be unconscionable in that, inter alia, the shingle products contain 18

19 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 19 of 27 inherent defects that were already existing at the time of purchase and Defendant knew, or were reckless in not knowing, about the defects, which could not be discovered by Plaintiffs and the Class at the time of purchase, and purchasers lacked any meaningful choice with respect to the warranty terms. 75. As a direct and proximate result of Defendant's breach of warranty, Plaintiffs and the Class have suffered damages in an amount to be determined at trial. above. FOURTH CLAIM FOR RELIEF (Breach of Implied Warranty of Merchantability) 76. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 77. An implied warranty of merchantability arises automatically when the product is a "good" and the seller a merchant is in the business of furnishing the product to the consumer. 13 Pa. Cons. Stat The shingle products at issue here are goods, pursuant to 13 Pa. Cons. Stat. 2105, and Owens Coming is a merchant in the business of selling such shingle products to consumers, pursuant to 13 Pa. Cons. Stat Accordingly, all of Owens Coming's shingle products come within the implied warranty of merchantability. 78. An implied warranty of merchantability provides that the product is of merchantable quality and fit for its ordinary and intended use, pursuant to 13 Pa. Cons. Stat Owens Coming breached the aforementioned implied warranty of merchantability because the Owens Coming shingle products were not of merchantable quality or fit for their ordinary and intended use and because the Owens Coming shingles 19

20 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 20 of 27 contained a defect at the time of their sale that resulted in, and continues to result in, premature deterioration in the form of crumbling, curling, pitting, cracking, degranulating, when used in a normal, foreseeable and customary way. 80. The defects at issue are latent defects. Plaintiffs and the Class members could not have known about the shingle products propensity for premature deterioration. 81. As a direct and proximate result of Defendant's breach of the implied warranty of merchantability, Plaintiffs and the Class members have suffered damages in the full purchase price of the Owens Coming shingle products they purchased or, in the alternative, damages in the amounts by which the values of the shingles as warranted exceed their value in their defective state, or, alternatively, damages in the amounts necessary to repair the shingles, such amounts to be determined at trial. above. FIFTH CLAIM FOR RELIEF (Negligence) 82. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 83. Defendant owed a duty to Plaintiffs and members of the class to exercise reasonable care in the design, manufacture, quality control and marketing of the shingle products. 84. Defendant breached their duty to Plaintiffs and the Class by designing, manufacturing, selling, advertising and warranting a defective product to Plaintiffs and the Class, and by failing to take those steps necessary to repair or otherwise discontinue selling a defective product to consumers. 85. Defendant was aware, or reasonably should have been aware, that the 20

21 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 21 of 27 shingle products were defective and did not perform their intended use. 86. When they purchased Owens Coming's shingle products, Plaintiffs and the Class were not aware of their defective nature. 87. As a direct and proximate cause of the foregoing, Plaintiffs and the Class have suffered have suffered and will continue to suffer damages and economic loss described fully above, in an amount to be proven at trial. 88. Plaintiffs and the Class are entitled to damages in an amount to be determined at trial. above. SIXTH CLAIM FOR RELIEF (Strict Products Liability) 89. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 90. At all times during the Class period, Owens Coming was a commercial manufacturer and supplier of the shingle products at issue in this case. 91. Owens Coming's shingle products were expected to, and did in fact, reach consumers without substantial change in the condition in which they were supplied. 92. Owens Coming's shingle products were and are defective, and were and are unfit for their intended use. 93. The shingle products fail to perform in accordance with the reasonable expectations of Plaintiffs and the Class and the benefits of the design of the shingles does not outweigh the risk of their failure. 21

22 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 22 of Defendant haslhad a duty and responsibility to disclose to the consuming public the foreseeable risks associated with the use of its shingle products. Owens Coming further haslhad a duty not to put defective products on the market. 95. Defendant breached its duty to Plaintiffs and the Class by failing to disclose the defects associated with the shingle products, and by allowing the sale and use of the shingle products when they knew they would not perform as intended. 96. As a result of the foregoing, Plaintiffs and the Class have suffered damages as previously set forth herein that were directly and proximately caused by the defective shingle products. 97. Plaintiffs and the proposed Class are entitled to damages in an amount to be determined at trial. above. SEVENTH CLAIM FOR RELIEF (Unjust Enrichment) 98. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 99. As the intended and expected result of its conscious wrongdoing, Defendant has profited and benefited form the purchase of shingle products by Plaintiffs and the Class Defendant has voluntarily accepted and retained these profits and benefits, derived from Plaintiffs and the Class, with full knowledge and awareness that, as a result of their misconduct, Plaintiffs and the Class were not receiving products of the quality, nature, fitness or value that had been represented by Defendant, and that Plaintiffs and the Class, as reasonable consumers, expected. 22

23 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 23 of Defendant has been unjustly enriched by their fraudulent and deceptive withholding of benefits to Plaintiffs and the Class, at the expense of Plaintiffs and the class Plaintiffs and the Class seek the disgorgement and restitution of Owens Coming's wrongful profits, revenue, and benefits, to the extent and in the amount deemed appropriate by the court, and such other relief as the Court deems just and proper to remedy Defendant's unjust enrichment. above. EIGHTH CLAIM FOR RELIEF (Fraudulent Misrepresentation, Concealment and Failure to Disclose) 103. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 104. During the Class period, Defendant knowingly, fraudulently and actively misrepresented, omitted and concealed from consumers material facts relating to the quality of its shingles and its warranty process Defendant has a duty to disclose to Plaintiffs and the Class members the actual quality of its shingle products and the true nature of its warranty process The misrepresentations, omissions and concealments complained of herein were material and were made on a uniform and market-wide basis. As a direct and proximate result of these misrepresentations, omissions and concealments, Plaintiffs and the Class members have been damaged, as alleged herein Plaintiffs and Class members reasonably and actually relied upon Defendant's representations, omissions and concealments. Such reliance may also be imputed, based upon the materiality of Defendant's wrongful conduct. 23

24 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 24 of Based on such reliance, Plaintiffs and Class members purchased shingle products from Owens Coming and, as a result, suffered and will continue to suffer damages and economic loss in an amount to be proven at trial Had Plaintiffs and the Class been aware of the true nature of Owens Coming's business practices, they would not have purchased shingle products from the company Defendant's acts and misconduct, as alleged herein, constitute oppression, fraud and/or malice entitling Plaintiffs and the Class to an award of punitive damages to the extent allowed in an amount appropriate to punish or to set an example of Owens Coming Plaintiffs and the Class are entitled to damages and injunctive relief as claimed below. above. NINTH CLAIM FOR RELIEF (Negligent Misrepresentation) 112. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 113. During the Class period, Defendants negligently and/or recklessly misrepresented, omitted and concealed from consumers material facts relating to the quality of its shingles and its warranty process Defendant has a duty to disclose to Plaintiffs and the Class members the actual quality of its shingle products and the true nature of its warranties The misrepresentations, omissions and concealments complained of herein 24

25 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 25 of 27 were negligently or recklessly made to potential customers and the general public on a uniform and market-wide basis. As a direct and proximate result ofthese misrepresentations, omissions and concealments, Plaintiffs and the Class members have been damaged, as alleged herein Plaintiffs and Class members reasonably and actually relied upon Defendant's representations, omissions and concealments. Such reliance may also be imputed, based upon the materiality of Defendant's wrongful conduct Based on such reliance, Plaintiffs and Class members purchased shingle products from Owens Coming and, as a result, suffered and will continue to suffer damages and economic loss in an amount to be proven at trial Had Plaintiffs and the Class been aware ofthe true nature of Owens Coming's business practices, they would not have purchased shingle products from the company Defendant's acts and misconduct, as alleged herein, constitute oppression, fraud and/or malice entitling Plaintiffs and Class members to an award of punitive damages to the extent allowed in an amount appropriate to punish or to set an example of Owens Coming Plaintiffs and Class members are entitled to damages and injunctive relief as claimed below. above. TENTH CLAIM FOR RELIEF (Declaratory and Injunctive Relief) 121. Plaintiffs re-alleges and incorporates by reference each of the paragraphs 25

26 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 26 of Plaintiffs and Class members are entitled to declaratory relief establishing that Defendant engaged in unfair and deceptive practices, that is conduct intentional or negligent misrepresentation andlor concealment and breaches of contracts with consumers. PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays that this case be certified and maintained as a class action and for judgment to be entered upon Owens Coming as follows: 1. For economic and compensatory damages on behalf of Plaintiffs and all members of the Class; 2. For restitution; 3. For actual damages sustained or treble damages; 4. For punitive damages, as otherwise applicable; 5. For injunctive and declaratory relief, as claimed herein; 6. F or reasonable attorneys' fees and reimbursement of all costs for the prosecution of this action; and 7. For such other and further relief as this Court deems just and appropriate. JURY TRIAL DEMANDED Plaintiffs demand a trial by jury on all issues so triable. Dated: June 21, 2010 lsi Charles J. LaDuca Charles LaDuca Brendan S. Thompson Cuneo Gilbert & LaDuca, LLP 507 C Street, NE Washington, DC

27 Case 2:09-cv JFC Document 49 Filed 06/29/10 Page 27 of 27 Telephone: (202) Michael McShane Audet & Partners, LLP 221 Main Street Suite 1460 San Francisco, CA Telephone: (415) Robert K. Shelquist Lockridge Grindal Nauen, PLLP Suite Washington Avenue South Minneapolis, MN Telephone: (612) Clayton D. Halunen Shawn J. Wanta Halunen & Associates 1650 IDS Center 80 South Eighth Street Minneapolis, MN Telephone: (612) Charles Schaffer Levin Fishbein & Bennan 510 Walnut Street - Suite 500 Philadelphia, P A Telephone: (215) James T. Davis Davis & Davis 107 East Main Street Uniontown, PA Telephone: (724) ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS 27