2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 1 of 65

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1 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 1 of 65 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION IN RE: MI WINDOWS AND DOORS, INC. ) MDL NO: 2333 PRODUCTS LIABILITY LITIGATION ) C.A. No. 2:12-mn DCN ) ALL CASES MASTER ADMINISTRATIVE CLASS ACTION COMPLAINT Plaintiffs Nadine Johnson, Jennifer C. Zambriczki, David R. Van Such, Craig Hildebrand, Joseph DeBlaker, Mike and Janeen Meifert, Manzoor and Sosi Wani, Timothy and Johanna Nash, David Deem, John W. McCubbrey and Elizabeth D. McCubbrey, Daniel Kennedy, Charles Bradley, Jennifer and Scott McGaffin, Stevenson T. Womack and any other Homeowner Plaintiffs whose cases are subsequently transferred into MDL No (collectively Plaintiffs ), individually and on behalf themselves and all others similarly situated, by their undersigned attorneys, upon personal knowledge as to themselves, upon information and belief, and based upon the investigation of their Counsel as to the remaining allegations, allege as follows: INTRODUCTION 1. This is a class action asserting claims against MI Windows & Doors, Inc. ( MIWD or Defendant ) for its liability in failing to adequately design, manufacture and distribute its windows to homeowners across the Country. 2. At all times relevant hereto, MIWD was a designer, manufacturer, and supplier of vinyl windows. In particular, MIWD designed, manufactured, and supplied vinyl windows which relied upon adhesive-coated foam tape to prevent water intrusion through the glazing and other sealant materials to prevent water intrusion through the sill joints.

2 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 2 of MIWD marketed these vinyl windows under its 3500, 4300, and 8500 family lines, including the 3350/9555 double hung vinyl window which is sold in conjunction with the 3500/8500 windows and which utilizes the 3500/8500 sash, and variations of model 3350/9555 (hereinafter collectively referred to as the Windows ). Thus, the term Windows encompasses the 3500 family lines, which includes models 3240, 3250, 3350, 3480/1480, 3500, 3540, 1280, 3580, 3280, but excludes the 3500 HP; the 4300 family lines, which includes models 4300, 4250, and 4340; the 8500 family lines, which includes model numbers 8500, 8540, 1250, 8580, and 8880; and the 3500/8500 accessory product lines, which includes double hung window model number 3350/9555 and related 9500 to 9900 models, including 9540 (direct set), 9555 (double hung), 9600/9700 (stacked and/or mulled), 9660 (awning), 9770 (casement), and 9880/3480 (double slider), 9900 (basement), and 1451 (double hung). 4. The term Windows includes: new construction and replacement versions of all Windows; single hung, double hung, fixed, slider, awning, casement, basement, specialty, and all other styles of Windows; all frame versions, including fin, finless, flange, j-channel, brick mold, non-brick mold, and all other frame variations of Windows; any renumbered model of the foregoing models included in the definition of Windows, including state model numbers (e.g. TX3250, the Texas version of the 3250); and stacked, mulled, continuous head, sill, continuous jam, and all other variations of Windows. Specialty windows are hereby defined to include picture, transom, eyebrow, geometric, custom, and any other shape. 5. For new construction, these windows are typically sold in a glass package for a given house, which often include several of the foregoing models in a single residence. The windows installed in Plaintiffs homes are all models included in the foregoing definition of 2

3 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 3 of 65 Windows. 6. MIWD sold the Windows to the builders, contractors and suppliers who installed the Windows in homes subsequently purchased by Plaintiffs and the Class members. In conjunction with each sale, MIWD expressly extended a limited lifetime warranty to the original purchaser of the home (and, for a limited period, to subsequent purchasers of the home) that the Windows would be free from defects in materials or workmanship that substantially impair their operation or performance. 7. MIWD also warranted, through labels affixed to each Window ( MIWD Label Warranty ) that remained on the Window at the time of purchase of the home by Plaintiffs and Class members, that the Windows were designed and constructed in conformance with industry standards. However, as discussed herein, the Windows do not conform to MIWD s express representations and warranties. 8. At the time of sale, the Windows were not merchantable and not reasonably suited to the use intended based on their defective design and manufacture by MIWD. 9. At the time of sale, the Windows contained defects that result in a loss of seal allowing water to enter into the homes owned by Plaintiffs and the Class members, resulting in the formation of mineral deposits and microbial growth at the location of the leaks, and consequential damages to other property, including, without limitation, the adjoining finishes, walls and floors of the homes. Furthermore, the Windows have accumulated mold and mildew and have contaminated the airspace within the home. The defect substantially impairs the effectiveness and performance of the Windows and renders the Windows unsuitable for the purposes for which they were sold and warranted. The Windows also do not conform to the 3

4 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 4 of 65 applicable building codes and standards. 10. As a result of the defects in the Windows, Plaintiffs and the Class members have suffered damages by purchasing structures containing the Windows that they would not otherwise have purchased had they known of the defects. Further, the value of their homes has been diminished by the defective Windows, the defective Windows have caused damage to other property in their homes; and, in some instances, Class members have been forced to pay for installation of replacement windows by MIWD, which replacements are also defective. JURISDICTION AND VENUE 11. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1332(d)(2) (diversity jurisdiction) and the Class Action Fairness Act, in that (i) there is complete diversity (Plaintiffs are citizens of South Carolina, North Carolina, Wisconsin, Illinois, Michigan, Ohio, New York, New Jersey and Kansas and MIWD is domiciled and incorporated in California and otherwise maintains its principal place of business in Pennsylvania), (ii) the amount in controversy exceeds $5,000, (Five Million Dollars) exclusive of interests and costs, and (iii) there are 100 or more members of the proposed Classes. 12. Venue lies in this District, pursuant to 28 U.S.C. 1391, because some of the Plaintiffs reside in this Judicial District, and a substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this Judicial District. In addition, MIWD does business and/or transacts business in this Judicial District, and therefore, is subject to personal jurisdiction in this Judicial District and resides here for venue purposes. 4

5 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 5 of 65 THE PARTIES A. Named Plaintiffs 13. The term Plaintiffs includes the Named Plaintiffs in this litigation. The Named Plaintiffs are purchasers and/or owners of the defective Windows. MIWD has failed or refused to replace, properly repair, or provide Named Plaintiffs Windows with Windows that are not defective or in accordance with MIWD s express representations or warranties. Named Plaintiffs have each suffered damages as a result of MIWD s concealment, deceptive practices, breach of warranties, and/or negligence. Among other things, Named Plaintiffs Windows are defective because they allow water to intrude into Named Plaintiffs homes, permitting mold and mineral growth. In addition, the water damages other property within Plaintiffs home such as personal property, drywall, and interior finishes. Named Plaintiff Nadine Johnson 14. In late 2005, Nadine Johnson ( Johnson ) purchased a new residence with a property address of 329 Senneca River Drive, Summerville, South Carolina. Johnson s home and the homes throughout her subdivision contain Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, and permitted moisture or water intrusion into Johnson s home and have continuously and repeatedly caused damage in and around the Windows. Specifically, in addition to the mold contaminating her living space due to the defective Windows, Johnson has water damaged walls and damaged window ledges, and damage to other property. Accordingly, Johnson must replace her Windows as well as repair the other property damage at a significant cost to her. Upon discovery of 5

6 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 6 of 65 problems with the Windows, Plaintiff Johnson attempted to notify the supplier by calling the number provided by the builder, Lakes of Summerville, at the time the home was purchased. The phone number was disconnected. All South Carolina Plaintiffs have put MIWD on notice of their individual claims and the class claim by the service of this suit; additionally, MIWD was already on notice of this class and type of claims by the other notices described further in this Master Complaint. Named Plaintiff Jennifer C. Zambriczki 15. In mid-2006, Jennifer C. Zambriczki ( Zambriczki ) purchased a new residence with a property address of 4832 Cane Pole Lane, Summerville, South Carolina. Zambriczki s home contains Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, permitted moisture or water intrusion into Johnson s home, contaminated the living space, and is believed to have caused latent damage to other property. Accordingly, Zambriczki must replace her Windows as well as repair the other property damage at a significant cost to her. MIWD was put on notice of the Zambriczki claim prior to her being joined as a Plaintiff. Named Plaintiff David R. Van Such 16. In mid-2005, David R. Van Such ( Van Such ) purchased a new residence with a property address of 214 Savannah River Drive, Summerville, South Carolina. Van Such s home and the homes throughout his subdivision contain Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and 6

7 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 7 of 65 mold, permitted moisture or water intrusion into Van Such s home, contaminated the living space, and is believed to have caused latent damage to other property. Accordingly, Van Such must replace his Windows as well as repair the other property damage at a significant cost to him. MIWD was put on notice of the Van Such claim prior to him being joined as a Plaintiff. Named Plaintiff Joseph DeBlaker 17. Plaintiff Joseph DeBlaker ( DeBlaker ) is and, at all relevant times hereto, has been a citizen and resident of Mecklenburg County, North Carolina. Specifically, DeBlaker resides at Coram Place, Charlotte, NC DeBlaker s home contains Windows manufactured by MIWD. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold, and began to leak into DeBlaker s home causing damage to other personal property below the Window as well as the interior finishes. Accordingly, DeBlaker must replace his Windows at significant cost to him. DeBlaker is the third owner of his home. The terms of MIWD s express warranty provide coverage only to first and second homeowners. Accordingly, DeBlaker brings his claims under negligence and North Carolina Unfair and Deceptive Trade Practices Act and seeks declaratory relief. Named Plaintiff Craig Hildebrand 18. Craig Hildebrand ( Hildebrand ) is and was, at all relevant times hereto, a resident and citizen of the State of New York. Specifically, Hildebrand owns a home at 126 Churchill Avenue, Staten Island, New York Hildebrand purchased the home in August 2009 and is the second owner. After taking possession of the home, Hildebrand replaced the carpet with wood flooring in three of the bedrooms, re-tiled the kitchen floor and backsplash and remodeled other areas in the home. Hildebrand s home contains Windows manufactured by MIWD. These 7

8 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 8 of 65 Windows suffered a loss of seal, began to exhibit mineral deposits and mold, causing a breakdown in the structural integrity of the Windows and seal which allowed water to leak into Hildebrand s home, causing damage to other property within the home, including but not limited to damage to the tile in the kitchen and wood flooring in the bedrooms which was not originally a part of the home which he purchased. Furthermore, the Windows have accumulated mold and mildew and have contaminated the airspace within the home. Accordingly, Hildebrand must replace his defective Windows at significant cost to him. Hildebrand contacted MIWD about the damage from their defective Windows but was told he was not covered by the warranty because he was not the original owner of the home. Adequate notice was given to MIWD regarding Hildebrand s claim. Named Plaintiffs Mike and Janeen Meifert 19. Plaintiffs Mike Meifert and Janeen Meifert ( the Meiferts ) are and, at all relevant times hereto, have been citizens and residents of Washington County, Wisconsin. Specifically, the Meiferts reside at 2605 Upper Forest Lane, West Bend, Wisconsin The Meiferts home contains Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, and permitted moisture or water intrusion into the Meiferts home and have continuously and repeatedly caused damage to other property below and around the Windows. Further, the Windows also fog up. Accordingly, the Meiferts must replace their Windows at a significant cost. 20. After reviewing MIWD s warranty on its website stating that the windows were 8

9 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 9 of 65 warranted for a period of ten years, the Meiferts filed warranty claims with MIWD about the damage from the Windows, but were told that they were not covered by the warranty because they were a subsequent owner of the home. However, the Meiferts purchased their home directly from the builder of the home, and were the first owners to live in the home. Despite providing this information to MIWD, MIWD refused to honor its warranty. Further, the Meiferts would not have purchased their home if they were not provided with a warranty, and the warranty, at all times was the basis of the bargain between the parties. Named Plaintiff Daniel Kennedy 21. Plaintiff Daniel Kennedy ( Kennedy ) is and, at all relevant times hereto, has been a citizen and resident of Will County, Illinois. Specifically, Kennedy resides at 2117 Stafford Court, Plainfield, Illinois Kennedy s home was built in Kennedy s home contains Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, and permitted moisture or water intrusion into the habitable living space of his home and have continuously and repeatedly caused damage in and around the Windows. Accordingly, Kennedy must replace his Windows as well as repair the other property damage at a significant cost to him. Kennedy contacted MIWD about the damage from his Windows, but was told he was not covered by the warranty because he was a subsequent owner of his home. Named Plaintiff Charles Bradley 22. Plaintiff Charles Bradley ( Bradley ) is and, at all relevant times hereto, a resident of 9

10 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 10 of 65 Pope County, Illinois. Specifically, Plaintiff Bradley resides at 275 Henry Hicks Road in Herod, Illinois Bradley s home was manufactured in Plaintiff s home contains Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, and permitted moisture or water intrusion into the habitable living space of his home and have continuously and repeatedly caused damage in and around the Windows. Bradley timely submitted two warranty claims to MIWD. With respect to the first warranty claim, MIWD replaced five windows free of charge to Bradley. With respect to the second warranty claim, MIWD replaced three windows; but, Bradley was charged for shipping the windows to him and Bradley also was required to pay for the cost of installing these three windows. Thus, MIWD has not complied with its warranty. Named Plaintiff Jennifer and Scott McGaffin 23. Plaintiffs Jennifer and Scott McGaffin ( the McGaffins ) were, at all relevant times hereto, residents and citizens of the State of Kansas. Specifically, the McGaffins own a home at S. Haven Road, Mount Hope, Kansas The McGaffins home was built in 2008 and contains Windows manufactured by MIWD. These Windows suffered premature failure, began to exhibit mineral deposits and mold, and allowed water to leak into the McGaffins home, causing damage to other property within the home. Accordingly, the McGaffins must replace their defective Windows and repair related damage at significant cost to them. The McGaffins contacted MIWD about the damage from their defective Windows pursuant to their warranty, but were told that the Windows were not installed correctly. Accordingly, MIWD has not complied with its warranty. 10

11 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 11 of 65 Named Plaintiffs Manzoor and Sozi Wani 24. Plaintiffs Manzoor Ahmad Wani and Sozi Wani ( the Wanis ) are and, at all relevant times hereto, have been citizens and residents of Franklin County, Ohio. Specifically, the Wanis reside at 6301 Parkmeadow Lane, Hilliard, Ohio The Wanis home contains Windows manufactured by MIWD. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold, and began to leak into the Wanis home causing damage to other property below the Windows. Accordingly, the Wanis must replace their Windows at significant cost to them. The Wanis contacted MIWD about the damage from their Windows but were told they were not covered by the warranty because they were the second owners of their home. Named Plaintiffs Timothy and Johanna Nash 25. Plaintiffs Timothy and Johanna Nash ( the Nashs ) are and were, at all relevant times hereto, citizens and residents of Hamilton County, Ohio. Specifically, the Nashs reside at 353 Rawling Drive, Harrison, Ohio The Nashs home contains Windows manufactured by MIWD. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold, causing a breakdown in the structural integrity of the Windows and seal which allowed water to leak into the Nashs home, causing damage to other property within the home. The Nashs are the original owners of their home that incorporated MIWD s Windows. Adequate notice has been given to MIWD regarding the defects in its Windows. Named Plaintiff Stevenson T. Womack 26. Plaintiff Stevenson T. Womack ( Womack ) is and, at all relevant times hereto, has been a citizen and resident of New Jersey. Specifically, Womack resides in the Saybrooke Place Subdivision at 94 Hillside Lane, Mt. Laurel, New Jersey Womack s home and the homes 11

12 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 12 of 65 throughout his subdivision contain Windows manufactured by MIWD. These Windows have an inadequate weep system, have suffered a loss of seal, and have a lack of or loss of sealant at joints, all of which have resulted in a manifestation of mineral deposits and mold, and permitted moisture or water intrusion into Womack s home and have continuously and repeatedly caused damage in and around the Windows. Specifically, in addition to the mold permeating his home due to the defective Windows, Womack has water stained damaged walls and damaged window ledges as well as water stains on his floors and other property. Accordingly, Womack must replace his Windows as well as repair the other property damage at a significant cost to him. Womack contacted MIWD and attempted to make a warranty claim due to the damage from his Windows, but was told he was not covered by the warranty because he was a subsequent owner of his home. Named Plaintiff David Deem 27. Plaintiff David Deem ( Deem ) is and was, at all relevant times hereto, a resident and citizen of the State of Michigan. Specifically, Deem owns a home at 1588 Dunston Road, Canton, Michigan Deem s home contains Windows manufactured by MIWD.. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold, causing a breakdown in the structural integrity of the Windows and seal which allowed water to leak into Deem s home, causing damage to other personal property within the home. Accordingly, Deem must replace his defective Windows at significant cost to him. Deem contacted MIWD about the damage from their defective Windows but was told he was not covered by the warranty because he was not the original owner of the home. Adequate notice was given to MIWD. Deem is not the original purchaser of the house on Dunston Road. 12

13 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 13 of 65 Named Plaintiffs John and Elizabeth McCubbrey 28. Plaintiffs John W. McCubbrey and Elizabeth D. McCubbrey ( the McCubbreys ) are and were, at all relevant times hereto, a resident and citizen of the State of Michigan. Specifically, The McCubbrey s own a home at 6027 Swan Lake Drive Romulus, Michigan The McCubbrey s home contains Windows manufactured by MIWD. These Windows suffered a loss of seal, began to exhibit mineral deposits and mold, causing a breakdown in the structural integrity of the Windows and seal which allowed water to leak into the McCubbrey s home, causing damage to other personal property within the home. Accordingly, the McCubbrey s must replace their defective Windows at significant cost to them. Adequate notice was given to MIWD. Plaintiffs McCubbrey are the original purchasers of the house on Swan Lake Drive. B. Defendant MIWD 29. MIWD is a California corporation with its principal place of business located in Pennsylvania. MIWD is one of the largest manufacturers of vinyl, aluminum and cellular windows and doors in the country. MIWD designed, tested, manufactured, marketed, advertised, warranted and sold the Windows throughout the United States. FACTUAL ALLEGATIONS a. Background and Defects 30. At all times relevant herein, MIWD was engaged in the marketing, sale, and delivery of windows and window products throughout the United States. 31. At all times relevant herein, MIWD was a window designer, manufacturer, and supplier of vinyl windows. In particular, MIWD designed, manufactured, and supplied Windows 13

14 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 14 of 65 which relied upon adhesive-coated foam tape to prevent water intrusion through the glazing, and other sealant materials to prevent water intrusion through the sill joints. 32. At the time of sale, MIWD warranted that each Window was fit for the ordinary purpose for which such goods were used and was free from defects in materials and workmanship. 33. In addition, MIWD represented and warranted that each Window conformed to the applicable Building Codes for each state and industry standards. 34. These representations, described herein, became part of the basis of the bargain when Named Plaintiffs, Plaintiffs Builders, Class Members and/or Class Members builders purchased the Windows. 35. In addition, these representations became part of the basis of the bargain when Named Plaintiffs and/or Class Members purchased the homes with MIWD s express representations concerning the quality of the Windows. 36. However, the Windows do not conform to these express representations and warranties, and, as alleged herein, MIWD breached its express warranties and representations concerning these Windows. 37. The Windows are defective and fail to perform both at Named Plaintiffs residences and at Class members residences by permitting leakage resulting in the formation of mineral deposits, algae, and microbial growth at the location of the leaks, and consequential damages to property other than the Windows, including, without limitation, the adjoining finishes and walls of the residences as well as other personal property within the homes. Further, the mold and mildew contaminate the habitable living space of the home. 14

15 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 15 of The Windows are defective as designed and fail to perform both at the Named Plaintiff s residences and at Class members residences in that the Windows rely upon other sealant materials in or over sill joints to prevent the intrusion of water. However, the resulting joints are incapable of preventing water intrusion over the long term. 39. The Windows are defective and fail to perform both at the Plaintiffs residences and at class members residences in that the weep system is unable to effectively discharge the water which gets into the windows, resulting in water penetration to the interior of the residences damaging adjoining finishes and walls. 40. The Windows are defective and fail to perform both at the Plaintiffs residences and at class members residences in that the Windows rely upon foam tape between the glass and the vinyl to prevent the intrusion of water. However, MIWD fails to install the foam tape in sufficient compression as required or recommended by the sealant tape manufacturer, which results in premature foam tape performance failure; and welded joints and other factors impede the foam tape s performance. 41. The Windows suffer from an additional product deficiency when put to their normal use and application because the depth of the product is insufficient to fill the typical depth of the wall openings into which the windows are placed. Therefore, many of the Windows are sold by Defendant MI with jamb extensions attached to the windows and/or the installer is permitted to attach his own jamb extensions to the windows. A jamb extension is the wood or composite wood trim which covers up the remaining exposed rough opening into which the window is placed. MIWD fastens the jamb extensions to the vinyl windows with screws which pierce the sill frame, and other frame members. The screw holes provide an avenue for water penetration 15

16 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 16 of 65 into the structure, either immediately or upon prolonged screw exposure to moisture, resulting in corrosion. Further, the screws impede the operation of the sash, accelerating the failure of the foam tape and joints. 42. MIWD does not test the long-term performance of the Windows and does not adequately test or check the performance of the Window components. Or, if it does test the longterm performance of the Windows, MIWD conceals this information from all purchasers and homeowners especially Named Plaintiffs builders and Class Members builders. 43. MIWD has failed to warn purchasers, builders, installers, homeowners and/or users of the aforedescribed risks of failure. 44. Because the Windows permit water intrusion, they violate building code and industry standards. 45. Operation of the Windows during normal use accelerates the failure of the Windows. 46. The defects and deficiencies set forth herein exist at the time the Windows leave the factory. Failure may occur immediately upon installation or may occur after repeated pressure is applied to the product during storms, thermal cycles or usage. 47. The defects and deficiencies are due to fundamental design, engineering, and manufacturing errors well within MIWD s area of expertise. 48. The Windows have been shown to be defective as above described in a number of residences throughout the United States in addition to the Plaintiffs residences. 49. MIWD has been put on notice of the widespread defects in its products throughout the United States by a number of homeowners. 50. Despite knowing of the defects described herein, MIWD has not notified all 16

17 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 17 of 65 purchasers, builders and/or homeowners with the Windows of the defect or provided uniform relief. 51. Homeowners with the Windows across the United States have suffered consequential damages similar to the Named Plaintiffs. 52. Other members of the putative class have previously put MIWD on notice of the nonperforming condition of the Windows. 53. Homeowners across the country have also put MIWD on notice of the defective nature of the Windows by virtue of thousands of warranty claims and consumer complaints. 54. Homeowners in other states across the country have put MIWD on notice of the defective nature of the Windows by virtue of a number of class actions. 55. MIWD knew or should have known that the defects were present at the time the products left its control, not only because of its expertise and testing, but also because of the notices of defects that it was receiving from the field. b. MIWD s Warranty 56. The purchase of MIWD s windows includes a written express warranty which forms part of the basis of the bargain between MIWD and the purchaser at the time of the sale. Further, MIWD expressly and implicitly represents to the public that the warranty is an integral part of the product being sold. The written warranties expressly apply to the (original) owners of the homes containing the Windows, yet MIWD attempts to disclaim its warranty by asserting that it only has to comply with its warranty if it was a part of the basis of the bargain between the parties. 57. MIWD ships a Limited Manufacturers Warranty, Limited Lifetime Customer 17

18 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 18 of 65 Assurance Warranty, and/or Limited Lifetime Warranty (collectively the Warranties ) with its Windows. Attached as exhibits A, B, C, D and E. 58. MIWD represents on its website, that MI Windows and Doors, Inc. stands behind its products with a Limited Lifetime Customer Assurance Warranty. If you have a problem with your windows or doors you can review your warranty below. A copy of Defendant MI s written warranty, effective January 1, 2010, is found at the bottom of the page and is attached hereto as Exhibit F. 59. In addition, as discussed herein, MIWD has made additional representations, expressly and impliedly, through its website, brochures, marketing materials, and representatives that the Windows are suitable and free from defects. These representations were intended to and likely did affect the market by inducing builders, contractors, suppliers, and others to purchase the windows which became, at all times, the basis of the bargain between the parties. 60. Upon information and belief, the warranty dated January 1, 2005 warranty is applicable to Johnson, Zambriczki, and Van Such and has been acknowledged via letters from MIWD s counsel to Plaintiffs counsel on October 28, 2011 and January 7, Plaintiffs purchase agreements for the sale of each of their homes contain provisions transferring all manufacturers warranties to Plaintiffs as the purchaser of their respective homes. The typical purchase agreement for the sale of class members homes likely contains the same or similar provision transferring manufacturers warranties to them at the time of purchase. The transfer of the manufacturers warranties, which would include the window warranty, forms part of the basis of the bargain at the time Plaintiffs purchase the homes. 62. Even where a manufacturer warranty transfer provision is not present, the average 18

19 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 19 of 65 homeowner expects at the time of purchase, his or her home comes with manufacturers warranties, including a window warranty against defects and would not purchase the home if they did not receive all manufacturer s warranties. 63. However, despite being assigned all manufacturers warranties with the purchase of the home from the builder, the homeowners generally do not receive printed copies of the Warranties and are not on notice of their limitations. Further, MIWD s purported warranties excludes homeowners who were not the initial purchasers of the homes. 64. Further, even when Class members submit warranty claims, MIWD fails to adequately respond to the warranty requests or MIWD asserts that it does not have to comply with the warranty because the Windows were installed incorrectly. 65. MIWD also does not provide or offer free skilled labor as stated in some of its warranties and charges people for shipping the windows. 66. In addition, despite making specific representations regarding the applicable building codes and standards to which the Windows comply once installed in a home, MIWD asserts that its express representations do not extend to subsequent purchasers. However, MIWD s position is unconscionable because MIWD knows that most homeowners, despite not being the initial purchaser of the home in which the Windows are installed, expect the Windows to conform to all applicable building codes and industry standards. Further, the stickers, which are attached to the Windows, provide express representations and warranties regarding the alleged quality of the Windows as discussed herein. 67. In addition, MIWD s warranties fail of their essential purpose because they only agree to provide additional defective windows. 19

20 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 20 of MIWD s shipping of the Windows with prior knowledge of the defects or with negligent or reckless disregard of the presence of defects constituted a breach of its express warranty, makes the limitations of the express warranty (described below) unconscionable in all respects, and therefore void ab initio. Further, warranties do not adequately disclaim the implied warranties of fitness for a particular purpose or merchantability. 69. In addition, Plaintiffs and Class Members, through Plaintiffs builders and through Class Members builders, relied on MIWD s published specifications and advertisements regarding the quality of the Windows. 70. While MIWD only publishes one warranty on its website, MIWD asserts the various different warranties applies depending upon the time that the Windows were purchased. Therefore, Plaintiffs and Class Members often do not know which warranty applies. 71. The following are limitations which are contained on MIWD s various written warranties: a) MIWD purports to limit its responsibility to providing a replacement window and shipped at the homeowner s expense; b) the warranty excludes the labor and other costs associated with removing the defective window from the structure and shipping it to MIWD; c) the warranty requires the homeowner to remove and ship the window to MIWD prior to MIWD s making a determination as to whether it is a warrantable defect; d) the warranty excludes the labor and installation associated with installing the replacement window; 20

21 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 21 of 65 e) the warranty typically only applies to the initial purchaser; f) the warranty excludes non-resident owners; g) the warranty may only be enforced by the original consumer purchaser unless the home is transferred within the first five years; h) the warranty purports to exclude consequential damages and loss of use; and i) while not adequately conspicuous, the warranty purports to disclaim implied warranties. 72. The above-described limitations on the express warranties are unconscionable under all circumstances and are therefore unenforceable. 73. The warranty is not a negotiated contract and is so one-sided that no reasonable person would ever knowingly agree to its terms if properly disclosed. 74. As discussed herein, MIWD has engaged in a pattern and practice of failing to honor or discouraging warranty claims. 75. One such method of thwarting warranty claims is a pattern and practice of MIWD s refusing to address the class member s defects unless the class member first agrees to pay a monetary fee if their claim is denied. 76. On the occasions that MIWD acts on the class members reports of non-performance, the MIWD engages in a pattern and practice of applying a temporary fix to the product, denying the defect, and billing the class member (or his or her builder or supplier) for the denied claim. 77. Moreover, during contact with the class members, MIWD conceals its knowledge of repeated product defects in the Windows in the class members residences. 21

22 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 22 of The above-described pattern and practice by Defendant MI has the effect of discouraging defect claims by class members. 79. As MIWD has known of its window defects and has failed to timely honor its warranty, the warranty has failed of its essential purpose and the limitations therein are null and void. 80. Plaintiffs and class members have been proximately damaged by MIWD s above- described defects and conduct. 81. Plaintiffs and class members have otherwise not received the value for which their builders or contractors bargained at the time the windows were purchased or transferred to the homeowners. 82. Plaintiffs and Class Members have not received the value for which they or their builder bargained when the Windows were purchased. There is a difference in value between the Windows as warranted and the Windows containing the defect coupled with an ineffective warranty. CLASS ACTION ALLEGATIONS 83. Plaintiffs bring this action individually and as representative of all those similarly situated pursuant to Rule 23, F.R.C.P. on behalf of the classes ( the Classes ). The Classes are defined as follows: South Carolina-only Class: All persons and entities that own structures located within the State of South Carolina in which MIWD s Windows are installed. Wisconsin-only Class: All persons and entities that own a structure located within the State of Wisconsin in which MIWD s Windows are installed. 22

23 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 23 of 65 North Carolina-only Class: All persons and entities that own a structure located within the State of North Carolina in which MIWD s Windows are installed. Ohio-only Class: All persons and entities that own a structure located within the State of Ohio in which MIWD s in which MIWD s Windows are installed. New York-only Class: All individuals and entities that own a structure in the State of New York in which MIWD s Windows are installed. Illinois-only Class: All persons and entities that own a structure located within the State of Illinois in which MIWD s Windows are installed. Kansas-only Class: All persons and entities that own a structure located within the State of Kansas in which MIWD s Windows are installed. New Jersey-only Class: All individuals and entities that own a structure in the State of New Jersey in which MIWD s Windows are installed. Michigan-only Class: All persons and entities that own a structure located within the State of Michigan in which MIWD s Windows are installed. 84. This class excludes: a) employees of the MIWD; and b) those persons who have released the MIWD or are currently in litigation with MIWD. 85. Plaintiffs propose that the class be divided into subclasses if and as necessary to align class interests. 86. Plaintiffs are each members of the class they seek to represent. The interests of Plaintiffs are coincident with and non-antagonistic to those other members of the class they seek to represent. 23

24 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 24 of Plaintiffs claims are typical of the claims of the other class members and Plaintiffs will fairly and adequately represent the interests of the members of the class. 88. Plaintiffs have retained counsel experienced and competent in construction litigation, product liability litigation, complex litigation, and consumer class actions. 89. The class members are so numerous that joinder of all members is impractical. The exact number of Class Members in each Class is not presently known, but it is believed to comprise of potentially thousands or tens of thousands of members in each class, making joinder impractical. The proposed Classes are easily ascertainable, through MIWD s records, and/or through identification of MIWD s stickers on their Windows. The number of Class Members in each Class can also be determined through discovery. 90. The claims of the Plaintiffs and the member of each class involve common questions of law and fact, including but not limited to: a) whether the Windows are defective; b) whether the MIWD was negligent in its design and manufacture of the Windows; c) whether MIWD knew or should have known about the defective condition of the Windows; d) whether MIWD concealed and/or failed to disclose the defective condition of the Windows to consumers; e) whether MIWD breached its express and implied warranties; f) whether the Plaintiffs are entitled to prejudgment interest, attorneys fees, and costs from the MIWD; and g) whether MIWD s conduct was grossly negligent, reckless, willful, wanton, intentional, fraudulent, or the like, entitling Plaintiffs to statutory or punitive damages from MIWD; 24

25 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 25 of 65 h) Whether the defective windows caused the damages to Plaintiffs and other members of the Classes; i) Whether Plaintiffs and the Classes are entitled to replacement of their defective Windows with non-defective Windows; j) Whether Plaintiffs and the Classes are entitled to restitution and/or disgorgement; k) Whether Plaintiffs and the Classes are entitled to compensatory damages, including, among other things: (1) compensation for all out-of-pocket monies expended by members of the Classes for replacement of Windows and/or installation costs as well as repair/replacement of other property damage; (2) the failure of consideration in connection with and/or difference in value arising out of the variance between the Windows as warranted and the Windows containing the defects; l) Whether MIWD knew or became aware that its Windows were defective, yet continued to manufacture, distribute and sell the Windows without: (1) informing consumers, purchasers, builders and/or homeowners of the material defects; (2) recalling the defective Windows; or (3) otherwise repairing the defective Windows that had already been purchased; and, instead engaged in an unfair practice of concealment, suppression or omission of the material defects; and m) Whether MIWD should be declared financially responsible for notifying all class members of the defective nature of the Windows and to pay the full costs and expenses of repair and replacement windows. 91. Typicality: Plaintiffs claims are typical of the claims of the members of the Classes, as all such claims arise out of MIWD s conduct in designing, manufacturing, marketing, advertising, warranting and selling the defective Windows, MIWD s conduct in concealing the defects in the Windows, and Plaintiffs and Class Members purchasing homes with the defective Windows. 92. Adequate Representation: Plaintiffs will fairly and adequately protect the interests of the members of the Classes and have no interests antagonistic to those of the Classes. Plaintiffs have retained counsel experienced in the prosecution of complex class actions, including 25

26 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 26 of 65 consumer class actions involving product liability and product design defects. 93. Predominance and Superiority: This class action is appropriate for certification because questions of law and fact common to the members of the Classes predominate over questions affecting only individual members, and a Class action is superior to other available methods for the fair and efficient adjudication of this controversy, since individual joinder of all members of the Classes is impracticable. Should individual Class Members be required to bring separate actions, this Court and Courts throughout the various states would be confronted with a multiplicity of lawsuits burdening the court system while also creating the risk of inconsistent rulings and contradictory judgments. In contrast to proceeding on a case-by-case basis, in which inconsistent results will magnify the delay and expense to all parties and the court system, this class action presents far fewer management difficulties while providing unitary adjudication, economies of scale and comprehensive supervision by a single Court. 94. MIWD has acted on grounds generally applicable to the Classes. Class certification is appropriate under all applicable law because MIWD engaged in a uniform and common practice. All class members have the same legal right to and interest in redress for damages associated with the defective Windows. 95. Plaintiffs and the class envision no unusual difficulty in the management of this action as a class action. 96. The amount of money at stake for each member is not sufficient for each member to hire their own counsel and experts and to bring their own action. 97. The foregoing water intrusion constitutes occurrences resulting in property 26

27 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 27 of 65 damage to property other than Defendant MI s product as those are terms commonly defined and used in the typical commercial general liability insurance policy. 98. All conditions precedent for filing this Complaint have been satisfied. This Complaint has been filed prior to the expiration of any applicable statues of limitations or statutes of repose. ESTOPPEL FROM PLEADING AND TOLLING OF APPLICABLE STATUTES OF LIMITATIONS 99. MIWD is estopped from relying on any statutes of limitation or repose by virtue of its acts of fraudulent concealment. Upon information and belief, MIWD has known of the defects in the Windows for years and has concealed from owners of the Windows and/or failed to alert the owners of the defective nature of the Windows MIWD had a duty to inform Plaintiffs and Class of the defects described herein, which it knew or should have known. Notwithstanding its duty, MIWD never disclosed the defects to Plaintiffs, Plaintiffs builder, Class Members and/or Class Member s builders Despite exercising reasonable diligence, Plaintiffs and Class Members could not have discovered the defects within the Windows Given MIWD s failure to disclose this non-public information about the defective nature of the Windows information over which it had exclusive control and because Plaintiffs and Class Members therefore could not reasonably have known that the Windows were defective, MIWD is estopped from relying on any statutes of limitations or repose that might otherwise be applicable to the claims asserted herein. 27

28 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 28 of 65 CAUSES OF ACTION COUNT ONE BREACH OF EXPRESS WARRANTY (On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki, Van Such, Hildebrand, Deem, Wani, Nash, Meifert, McGaffin, Womack, McCubbreys, Bradley and Kennedy) 103. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein After putting their Windows into the stream of commerce, MIWD expressly represented and warranted that the Windows were appropriate for their intended use and were free from defects MIWD entered into contracts with retailers, Plaintiffs Builders, Class Members Builders, suppliers and/or contractors to sell its Windows that were to be installed at Plaintiffs and the Class members properties Plaintiffs and Class Members were intended third party beneficiaries of the contracts between MIWD and their respective Builders MIWD s express and written warranties, and representations are applicable to the Windows installed in Plaintiffs homes MIWD expressly represented and warranted that the Windows were appropriate for their intended use and were free from defects MIWD expressly represented that its warranties extended to the initial homeowner whose home contains the Windows MIWD also expressly represented that the Windows conform to all 28

29 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 29 of 65 applicable building codes and industry standards through its representations and stickers affixed to each Window MIWD has made other representations, as described above, through its website, brochures, marketing materials, and representatives that the Windows are free from defects The representations and warranties formed part of the basis of the bargain between MIWD and the purchasers of the Windows, at the time of the sale These representations, described herein, became part of the basis of the bargain when Plaintiffs, Plaintiffs builders, Class Members and/or Class Members builders purchased the Windows and/or purchased the homes containing the Windows In addition, these representations became part of the basis of the bargain when Plaintiffs and/or Class Members purchased the homes with MIWD s express representations concerning the standards to which the Windows conformed because the labels were on the Windows at the time of purchase, and all manufacturers warranties were assigned to Plaintiffs The purchase agreements for the sale of Plaintiffs homes contained provisions transferring the manufacturers warranties, including window warranties. Such provisions are valid transfers, and the transferred warranties formed part of the basis of the bargain at the time the homes were purchased by Plaintiffs Further, Plaintiffs would not have purchased their home if the express warranties did not transfer to them upon purchase The January 1, 2005 warranty specifically contains the certification that THE 29

30 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 30 of 65 MANUFACTURERS products are fully warranted against defects in workmanship and materials. Likewise, the January 1, 2010 contains the assurance that the windows are warranted against defects in the frame, sash or other non-glass components, as manufactured MIWD expressly warranted that the Windows are fully warranted against defects in workmanship and materials under normal use and service. MIWD agreed to repair or replace AT THE FACTORY, FREE OF CHARGE, any returned product that is found to be defective. (emphasis in original) Upon information and belief, all of MIWD written warranties applicable to class members contain the same or similar provisions as evidenced by Exhibits A, B, C, D and E The limitations of damages and the limitations to the original purchaser contained in the express warranty provisions are harsh, oppressive and one-sided. The limitations related to the amount of damages, the type of remedies available to Plaintiffs and Class Members are unconscionable when MIWD knows or should have known that there are defects in the design and manufacturing of the Windows However, despite MIWD s assurances, as described in detail supra, the Windows contain the aforementioned defects and do not conform to all applicable building codes and industry standards and are not free from defects These aforementioned defects are present when the Windows leave MIWD s control MIWD has been repeatedly put on notice of the defects in the Windows by various methods described above. 30

31 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 31 of As Plaintiffs and homeowners have defective windows in their homes, which have not been and would not be sufficiently repaired or replaced by MIWD, they have not received the value of what the window purchaser bargained for at the time the windows were sold or at the time they were transferred through the sale of the home MIWD breached the express warranty by selling its Windows that were defective and not reasonably fit for their ordinary and intended purpose. Further, the Windows did not conform to the express representations contained within the Windows By its conduct and defective products, MIWD has breached its express warranty with Plaintiffs and members of the class In addition, MIWD has breached its express written warranties by not providing Plaintiffs with Windows which are free from defects and/or by discouraging warranty claims MIWD s written warranty is also unconscionable and fails of its essential purpose because, by merely providing a replacement Window, the replacement Window is also inherently defective Plaintiffs, who did not directly purchase the Windows, did not negotiate or bargain for the terms of the express warranty provisions and any purported limitations contained therein. Upon information and belief, the distributors, contractors, and other customers of MIWD did not and could not negotiate or bargain for the terms of the express warranty provisions and any purported limitations contained therein. Instead, MIWD stood in a position of domination and control over the terms Upon information and belief, MIWD knew that the Windows had a history of 31

32 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 32 of 65 failures, resulting in damage to other property and mold growth, yet MIWD failed and omitted to inform its distributors, its customers, Plaintiff and Class Members on whose residence the Windows were installed In light of the foregoing, MIWD s limitations within its warranties are invalid and fail of their essential purpose and/or is unconscionable Plaintiff Bradley filed warranty claims with MIWD. Although MIWD honored the first warranty claim by replacing five Windows free of charge to Plaintiff, MIWD failed to honor the second warranty claim, in that Plaintiff was required to bear the expenses of shipping and installation of the three replacement Windows Plaintiff Kennedy has made a warranty claim with MIWD. Despite its express representations regarding the standards the Windows conform to, MIWD has asserted that, since he is not the first purchaser of her home, the express warranty does not extend to him. Accordingly, MIWD s warranty fails of its essential purpose and/or is unconscionable When Plaintiff Womack made a warranty claim and provided notice to MIWD of the defects in his Windows, MIWD stated that Plaintiff was not covered by the warranty since it states, in fine print, Enforceability of this warranty is limited to the original consumer purchaser. This is unconscionable Plaintiff Deem contacted MIWD about the damage from their defective Windows but was told he was not covered by the warranty because he was not the original owner of the home The Meiferts reviewed MIWD s warranty on its website stating that the windows 32

33 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 33 of 65 were warranted for a period of ten years, and filed warranty claims with MIWD about the damage from the Windows. However, MIWD told the Meiferts that they were not covered by the warranty because they were a subsequent owner of the home. However, contrary to MIWD s assertion, the Meiferts purchased their home directly from the builder of the home and were the first owners to live in the home. Despite providing this information to MIWD, MIWD refused to honor its warranty. Further, the Meiferts would not have purchased their home if they were not provided with a warranty from their builder, and the warranty, at all times was the basis of the bargain between the parties The McGaffins contacted MIWD about the damage from their defective Windows pursuant to their Warranty. Without investigating the McGaffin s claim, MIWD dismissed their claim, without a basis, by asserting that the Windows were not installed correctly. Accordingly, MIWD has not complied with its warranty When Plaintiff Hildebrand made a warranty claim and provided notice to MIWD of the defects in his Windows, MIWD stated that Plaintiff was not covered by the warranty since it states, in fine print, Enforceability of this warranty is limited to the original consumer purchaser The Wanis contacted MIWD about the damage from their Windows but were told they were not covered by the warranty because they were the second owners of their home The foregoing breaches of express warranty at issue were substantial factors in causing damages to Plaintiffs and Class Members As a direct and proximate result of MIWD s breach of the express warranty on the Windows, the Plaintiffs and Class Members have suffered actual and consequential damages. 33

34 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 34 of 65 COUNT TWO BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (On Behalf of Class Members Represented by Plaintiffs Deem, McGaffin, McCubbreys) 142. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein MIWD entered into contracts with retailers, suppliers and/or contractors to sell its Windows that were to be installed at Plaintiffs and the Class Members properties Plaintiffs and the Class members are intended third party beneficiaries of those contracts because it was the clear and manifest intent of MIWD that the contracts were to primarily and directly benefit Plaintiffs and the Class Members when the Windows passed to homeowners through the sale of homes containing the Windows MIWD warranted that its Windows were merchantable and reasonably fit for their ordinary purpose, and would not cause damage as set forth herein MIWD impliedly warranted that the Windows conformed to all applicable Kansas and Michigan Building Codes, ASTM standards and/or AAMA standards MIWD breached the implied warranty of merchantability by selling its Windows that were defective and not reasonably fit for their ordinary purpose and did not conform to the standards represented above MIWD s Windows are defective because they cause and continue to cause damage as described more fully herein and permit leaks into Plaintiffs and Class Members homes As a result of MIWD s breach of the implied warranty of merchantability, 34

35 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 35 of 65 Plaintiffs and the Class Members have suffered and continue to suffer damages. COUNT THREE BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (On Behalf of Class Members Represented by Plaintiffs Deem, McGaffin, McCubbrey) 150. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein MIWD entered into contracts with retailers, suppliers and/or contractors to sell its Windows that was to be installed at Plaintiffs and the Class members properties Plaintiffs and the Class members are intended third party beneficiaries of those contracts because it was the clear and manifest intent of MIWD that the contracts were to primarily and directly benefit Plaintiffs and the Class members when the Windows passed to homeowners through the sale of homes containing the Windows At the time MIWD entered into contracts with retailers, suppliers and/or contractors, MIWD knew and had reason to know that its Windows were being purchased for the particular purpose of being installed at Plaintiffs and the Class members properties Plaintiffs and the Class members, directly or indirectly, relied on MIWD s representations and warranties that its Windows were suitable for the particular purpose of being installed at Plaintiffs and the Class members properties MIWD warranted that its Windows were fit for the particular purpose of being installed at Plaintiffs, the Class members properties MIWD breached the implied warranty of fitness for a particular purpose by selling its Windows that were defective and not reasonably fit for their ordinary purpose. 35

36 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 36 of MIWD s Windows are defective because they cause and continue to cause damage as described more fully herein As a result of MIWD s breach of the implied warranty of fitness for a particular purpose, Plaintiffs and the Class members have suffered and continue to suffer damages. COUNT FOUR BREACH OF IMPLIED WARRANTY (On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki, Van Such, Wani, and the Nashs) 159. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein MIWD is a designer, manufacturer, and supplier of the Windows, and for a number of years, marketed, warranted, distributed, and/or sold the Windows in throughout the United States MIWD impliedly warranted that the Windows would be free from defects and fit for their customary and normal use MIWD also impliedly warranted that the Windows would conform to all South Carolina, Ohio Building Codes and applicable industry standards The Windows are not fit for the ordinary purposes for which the Windows were sold, are not merchantable, and will not pass without objection in the trade and do not conform to all applicable building codes and testing standards The Windows were defective at the time they left the factory MIWD failed to give Plaintiffs and members of the Class adequate warnings and 36

37 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 37 of 65 notices regarding the defect in the Windows despite the fact that MIWD knew or should have known of this defect, with the intent that Plaintiffs and members of the Class would rely upon MIWD s failure to disclose the defect when purchasing the Windows. Plaintiffs, Class Members and members of the public were deceived by and relied upon Defendant s failures to disclose The Windows manufactured by Defendant were defective and unfit for their intended use; these defects were unknown to Plaintiffs and members of the Class at the time they purchased the Windows, or the houses containing the Windows; and Defendant knew or should have known that the defective Windows were unfit for their intended purpose MIWD intended that Plaintiffs and members of the Class would rely on the deception by purchasing its Windows, or houses containing the Windows, unaware of the material facts described above. The conduct constitutes a breach of implied warranty The foregoing constituted a breach of MIWD s implied warranties As MIWD s express warranty (and warranty claims process thereunder) has been breached and/or is unconscionable and/or fails of its essential purpose, as described above and below, the limitations on implied warranties contained within the express warranty should be deemed null and void and of no effect or limitation MIWD also failed to adequately disclaim any implied warranties As a direct and proximate result of the MIWD s breach of the implied warranty on the Windows, the Plaintiff class has suffered actual and consequential damages. COUNT FIVE NEGLIGENCE/NEGLIGENT DESIGN (On Behalf of Class Members Represented by Johnson, Zambriczki, Van Such, DeBlaker, Bradley, Kennedy, Wani, Nash, Hildebrand, Meifert, McGaffin, Deem, and McCubbrey) 172. Plaintiffs individually and on behalf of all others similarly situated, adopt and 37

38 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 38 of 65 incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein At all times material hereto, MIWD designed and manufactured the Windows MIWD had a duty to Plaintiffs and to members of the class to design and manufacture Windows that were free of latent defects that would cause the Windows to leak MIWD had a duty to Plaintiffs and to members of the class to test the Windows to ensure adequate performance of the windows for a reasonable period of use MIWD had a duty to Plaintiffs and to class members to ensure that the window components were suitable, either by testing or by verifying third-party test results MIWD had a duty to Plaintiffs and to members of the class to ensure that their products complied with industry standards and all applicable building codes across the country MIWD had a duty to Plaintiffs and to members of the class to forewarn purchasers, installers, and users regarding the known risk of product failures MIWD failed to exercise ordinary and reasonable care in the design and manufacture of the Windows and in determining whether the Windows that it sold, and continued to sell, contained a latent defect that would result in the failure of the Windows to perform as reasonably expected MIWD failed to exercise ordinary and reasonable care in the design and manufacture of the Windows and breached the foregoing duties MIWD breached its duty to the Plaintiffs and class members to test the Windows to ensure adequate performance of the Windows for a reasonable period of use MIWD breached its duty to Plaintiffs and to class members to ensure that the 38

39 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 39 of 65 window components were suitable, either by testing or by verifying third-party test results MIWD breached its duty to Plaintiffs and to members of the class to ensure that their products complied with industry standards and the applicable building codes MIWD breached its duty to Plaintiffs and to members of the class to forewarn purchasers, installers, and users regarding the known risk of product failures The negligence of MIWD, its agents, servants, and/or employees, include the foregoing, as well as the following acts and/or omissions: a. designing, manufacturing, processing, distributing, delivering, supplying, inspecting, marketing and/or selling Windows without adequately and thoroughly testing them to all applicable standards and building codes; b. designing, manufacturing, processing, distributing, delivering, supplying, inspecting, marketing and/or selling Windows without adequately testing long term performance; c. negligently failing to ensure that the Windows conformed to all applicable standards and building codes; and d. concealing information concerning the defects inherent in the Windows from Plaintiffs and the Class members, while knowing that MIWD s Windows were defective and nonconforming with accepted industry standards and building codes Plaintiffs have been damaged because the defective Windows have permitted mold and mineral growth in Plaintiffs and Class Members homes, have damaged adjoining finishes and walls, have contaminated the living space, and damaged other personal property within the homes The Plaintiffs and Class Members have also been damaged as a direct and proximate result of the negligence, carelessness, recklessness, willfulness, and wantonness of 39

40 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 40 of 65 Defendant MI as aforesaid As MIWD conduct was grossly negligent, reckless, willful, wanton, intentional, fraudulent, or the like, Plaintiff class is entitled to an award of punitive damages against MIWD. COUNT SIX STRICT LIABILITY (On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki, Van Such) 189. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein MIWD is in the business of designing, manufacturing, marketing, distributing and/or selling windows and doors The Windows are defectively designed and manufactured and are unreasonably dangerous in that they allow water to intrude into the interior of the residence, resulting in mold and algae growth at the location of the leak and consequential damage to the structure into which the windows were installed The Windows reached the Plaintiffs and Class Members, and were intended to reach the Plaintiff class, without substantial change in the condition in which they were sold MIWD is in violation of South Carolina Code , for having designed, manufactured, marketed, distributed, and sold the Windows, which were defective, to the Plaintiff class As a direct, foreseeable, and proximate result of the sale of the defective windows to Plaintiffs and Class Members, the Plaintiffs and Class Members have suffered significant physical damage to their homes and other personal property which includes contamination to the 40

41 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 41 of 65 living space and deterioration within the home. COUNT SEVEN STRICT PRODUCTS LIABILITY DESIGN DEFECT, MANUFACTURING DEFECT AND FAILURE TO WARN (N.J.S.A. 2A:58C-1 et seq.) (On Behalf of Class Members Represented by Plaintiff Womack) 195. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein At all relevant times, MIWD was engaged in the business of manufacturing Windows, which is the subject of this action The Windows were expected to and did reach Plaintiff and the Class without substantial change to the condition in which it was designed, manufactured and sold by MIWD The Windows installed on Plaintiff s and the Class Members properties was and is defective and unfit for its intended use. The use of Windows has caused and will continue to cause other property damage to Plaintiff and the Class The Windows were so defective in design or formulation or manufacture that when it left the hands of Defendants, the foreseeable risks exceeded the benefits associated with the design, formulation or manufacture of MIWD s Windows At all times herein mentioned, MIWD s Windows were in a defective condition and unsafe, and Defendants knew, or had reason to know, or should have known that their Windows were defective and unsafe, especially when used in the form and manner as provided by MIWD Plaintiff and the Class Members utilized the Windows for the purposes and manner normally intended. 41

42 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 42 of MIWD had a duty to create a product that was not unreasonably dangerous for its normal, intended use and would not result in damage to Plaintiff s and Class Member s other property Plaintiff and the Class, acting a reasonably prudent people, could not have discovered that Defendants Windows was defective as herein mentioned or perceive its danger The Windows designed, manufactured, warranted, advertised and sold by MIWD was defective due to inadequate warnings or instructions and/or inadequate testing By reason of the foregoing, MIWD is strictly liable to Plaintiff and the Class for designing, manufacturing, and selling MIWD s Windows Plaintiff, on behalf of itself and all others similarly situated, demands judgment against MIWD for compensatory damages for themselves and each member of the Class, for the establishment of the common fund, plus attorney s fees, interest and costs. COUNT EIGHT STRICT PRODUCTS LIABILITY DESIGN DEFECT, MANUFACTURING DEFECT AND FAILURE TO WARN (On Behalf of Class Members Represented by Plaintiff Hildebrand) 207. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein At all relevant times, MIWD was engaged in the business of manufacturing Windows, which is the subject of this action The Windows were expected to and did reach Plaintiff and the Class without substantial change to the condition in which it was designed, manufactured and sold by MIWD The Windows attached to Plaintiff s and the Class Members properties were and 42

43 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 43 of 65 are defective and unfit for their intended use. The use of Windows has caused and will continue to cause other property damage to Plaintiff and the Class The Windows were so defective in design or formulation or manufacture that when it left the hands of Defendant, the foreseeable risks exceeded the benefits associated with the design, formulation or manufacture of MIWD s Windows At all times herein mentioned, MIWD s Windows were in a defective condition and unsafe, and Defendant knew, or had reason to know, or should have known that its Windows were defective and unsafe, especially when used in the form and manner as provided by MIWD Plaintiff and the Class Members utilized the Windows for the purposes and manner normally intended MIWD had a duty to create a product that was not unreasonably dangerous for its normal, intended use and would not result in damage to Plaintiff s and Class Member s other property Plaintiff and the Class, acting a reasonably prudent people, could not have discovered that Defendant s Windows were defective as herein mentioned or perceive its danger The Windows designed, manufactured, warranted, advertised and sold by MIWD were defective due to inadequate warnings or instructions and/or inadequate testing By reason of the foregoing, MIWD is strictly liable to Plaintiff and the Class for designing, manufacturing, and selling MIWD s Windows Plaintiff, on behalf of himself and all others similarly situated, demands judgment against MIWD for compensatory damages for themselves and each member of the Class, for the establishment of the common fund, plus attorney s fees, interest and costs. 43

44 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 44 of 65 COUNT NINE UNFAIR TRADE PRACTICES ACT (On Behalf of Class Members Represented by Plaintiffs Johnson, Zambriczki and Van Such) 219. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein At all times relevant herein, MIWD engaged in the business of designing, developing, manufacturing, marketing, distributing, and/or selling windows in the stream of commerce. Practices Act MIWD was engaged in commerce as defined by the South Carolina Unfair Trade 222. MIWD s above-described activities, including knowingly or recklessly placing a defective product into the stream of commerce, misrepresenting the suitability of the product, failing to honor the warranty, concealing knowledge of the defects, attempting to limit its responsibility through a sham warranty, and other acts to be shown through the course of discovery and at trial, constitute unfair and deceptive practices in the conduct of MIWD s trade. public interest MIWD s above-described acts are capable of repetition and adversely affect the 224. MIWD knew or should have known that its conduct was in violation of the South Carolina Code Section As a direct, foreseeable, and proximate result of MIWD s unfair trade practices in South Carolina, the Plaintiffs have suffered significant damage, and are entitled to an award of treble damages and attorney fees. 44

45 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 45 of 65 COUNT TEN UNFAIR TRADE PRACTICES ACT (On Behalf of Class Members Represented by Plaintiff DeBlaker) 226. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein N.C. Gen. Stat makes unlawful, Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce MIWD engaged in unfair or deceptive acts or practices in violation of N.C. Gen. Stat when, in selling and advertising the Windows, MIWD failed to give Plaintiff DeBlaker and Class Members adequate warnings and notices regarding the defect in the Windows despite the fact that MIWD knew or should have known of this defect, with the intent that Plaintiff DeBlaker and Class Members and/or their builders would rely upon MIWD s failure to disclose the defect when purchasing the Windows. Plaintiff, Class Members and members of the public were deceived by and relied upon MIWD s failures to disclose MIWD also engaged in unfair or deceptive acts or practices in violation of N.C. Gen. Stat when it failed to provide an express warranty to all owners of homes with its defective Windows As a direct and proximate result of these unfair, deceptive and unconscionable commercial practices, Plaintiff and Class Members have been damaged in an amount in excess of $10,000, and are entitled pursuant to N.C. Gen. Stat to recover treble damages as well as attorneys fees and costs. 45

46 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 46 of 65 COUNT ELEVEN VIOLATION OF MICH. COMP. LAWS (On Behalf of Class Members Represented by McCubbrey) 231. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein This is action is brought to secure redress for the unlawful, deceptive and unfair trade practices perpetrated by MIWD on behalf of Plaintiffs McCubbrey and the Class members similarly situated Mich. Comp Laws were enacted to protecting the consuming public from those who engage in unconscionable, deceptive or unfair acts or practices in the conduct of any trade or commerce The conduct of Defendant, as alleged above, constituted unfair, unconscionable, or deceptive acts or practices in violation of Mich. Comp Laws Defendant s violations of Mich. Comp. Laws include, but are not necessarily limited to the following: a) Defendant represented through its express and implied warranties to Plaintiffs and the Class that the Windows had characteristics, uses, and benefits that they did not have, specifically, that the Windows were dependable, quality products, free of defects; Defendant thus violated of Mich. Comp. Laws (1)(c); b) Defendant failed to reveal to Plaintiffs McCubbrey, or the Class, material facts that neither Plaintiffs nor the Class could reasonable have known, causing Plaintiffs and the Class to be misled and deceived, including that (i) Defendant s Windows were defective; 46

47 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 47 of 65 and (ii) that Defendant s Windows would fail, leading to damage to the very structures and personal property that they were purchased to protect, in violation of Mich. Comp. Laws (1)(s); c) Defendant failed to provide the benefits of its Windows that Defendant promised to Plaintiffs McCubbrey and the Class, including that the Windows were fit for the use for which it was intended and were free of defects, in violation of Mich. Comp. Laws (1)(y); d) Defendant failed to provide the benefits set forth in its warranty for its Windows by failing to respond to customer complaints and/or failing to honor its warranties in violation of Mich. Comp. Laws (1)(y) Defendant s represented, through their express and implied warranties, that the Windows were dependable, quality products, free of defects. These representations were false, and Defendant knew that these representations were false at the time they were made, and intended Plaintiffs and the class would act upon these representations. Plaintiffs and the Class relied on these representations to their detriment Plaintiffs McCubbrey and the Class were damaged as a proximate result of Defendant s numerous violations of Mich. Comp Laws , including but not limited to the violations of subparagraphs a-e set forth above Plaintiffs McCubbrey and members of the Class are entitled to compensatory damages, equitable and declaratory relief, costs, and reasonable attorneys fees. 47

48 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 48 of 65 COUNT ELEVEN VIOLATION OF THE ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT (On Behalf of Class Members Represented by Kennedy and Bradley) 239. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein At all time relevant hereto, there was in full force and effect the IFCA Section 2 of the ICFA provides in relevant part: Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with the intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the Uniform Deceptive Trade Practices Act, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared to be unlawful whether any person has in fact been deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(A) of the Federal Trade Commission Act. 815 ILL. COMP. STAT. 505/2 (footnotes omitted) Plaintiffs and Class Members are consumers within the meaning of the IFCA, given that MIWD s business activities involve trade or commerce, are addressed to the market generally, and otherwise implicate consumer protection concerns MIWD engaged in concealment, suppression, or omission when, in selling the Windows, MIWD knew that there were defects in the Windows which would result in water 48

49 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 49 of 65 damage, ensuing other property damage, and mold growth The facts that MIWD concealed, suppressed, or omitted as alleged herein are material. Whether windows contain defects which will result in water damage, ensuing other property damage, and mold growth is the kind of information a purchaser would be expected to rely on in deciding whether to purchase the Windows. Additionally, Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members builders would not have purchased the Windows had they known or become informed of the material defects in the Windows, which would result in water damage, ensuing other property damage, and mold growth MIWD engaged in concealment, suppression, or omission of the aforementioned material facts with the intent that others, such as Plaintiffs, Plaintiffs builders, Class Members, Class Members builders, and/or the general public would rely upon the concealment, suppression, or omission of such material facts and purchase MIWD s Windows containing said design defect MIWD also failed to give Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members builders adequate warnings and notices regarding the defects in the Windows, this despite the fact that MIWD knew or should have known of these defects, with the intent that Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members builders and members of the Class would rely upon MIWD s failure to disclose the defects when purchasing the Windows. Plaintiffs, Class Members, Plaintiffs builders, Class Members builders, and members of the public were deceived by and relied upon Defendant s failures to disclose Once the defects became known, consumers (such as Plaintiffs) were entitled to disclosure of that fact because: (a) a significant risk of water leakage would be a material fact in 49

50 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 50 of 65 a consumer s decision-making process; and (b) without MIWD s disclosure, consumers would not know that there is any risk of water leakage Further, despite the plain language of MIWD s express warranty which extends to the initial homeowner, by denying warranty claims by asserting that the express warranty was not the basis of the bargain between the parties, MIWD has committed an unfair act or practice The above-described concealments, suppressions or omissions by MIWD have had an effect on consumers generally, and implicate the general market The above described concealments, suppressions, or omissions by MIWD constitute unfair acts or practices within the meaning of the ICFA, in that they are immoral, unethical, oppressive, unscrupulous, and otherwise cause substantial injury to consumers. MIWD knew of the material defects and continued to manufacture, distribute and sell the Windows to the unsuspecting public (consumers) without disclosure. Furthermore, MIWD knew of the defects and failed to recall or repair the defects MIWD concealed, suppressed and/or omitted the material defects from Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members builders willfully, with knowledge and/or intent to deceive The material defects in the Windows are not the type that Plaintiffs, Plaintiffs builder, Class Members, and/or Class Members builders would have been able to discover on their own, and in fact, Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members builders were unaware of, unable to, and did not discover the material defects that were concealed, suppressed or omitted by MIWD. 50

51 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 51 of Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members builders relied on the fact that MIWD did not disclose the material defects in the Windows as a representation that the Windows were reasonably suited for their intended use and purpose MIWD s material omissions of the material defects in the Windows had the tendency to mislead consumers into believing that the Windows were free from defects and reasonably suited for their intended use and purpose MIWD also engaged in unfair acts or practices in violation of the ICFA when it failed to provide an express warranty to all owners of homes with its defective Windows Because MIWD s warranties are limited in duration and only to the first purchasers, consumers were further entitled to know that water leakage might not exhibit itself until after their warranties expired, and if that occurred, MIWD was not committing to repair the condition MIWD further engaged in unfair practices in violation of the ICFA when it failed to replace three defective windows at Plaintiff Bradley s home free of charge, notwithstanding its representation to the contrary in its express warranty applicable to him As a direct and proximate result of these unfair acts or practices, Plaintiff and the members of the Class have sustained and will continue to sustain actual, direct and/or consequential damages in amount which is as yet undetermined, but is in an amount in excess of $75,000, and are entitled to recover damages as well as attorneys fees and costs. COUNT TWELVE VIOLATION OF NEW JERSEY S CONSUMER FRAUD ACT (On Behalf of Class Members Represented by Plaintiff Womack) 259. Plaintiffs individually and on behalf of all others similarly situated, adopt and 51

52 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 52 of 65 incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein Defendant is a manufacturer, marketer, seller, and/or distributors of the Windows The conduct described above and throughout this Complaint took place within the State of New Jersey and constitutes unfair business practices in violation of New Jersey s Consumer Fraud Act N.J. Rev. Stat. 56:8-1 et seq. (2012) (hereinafter, CFA ) The CFA applies to the claims of Plaintiff and all the Class members because the conduct which constitutes violations of the CFA by the Defendant occurred within the State of New Jersey In violation of the CFA, Defendant employed fraud, deception, false promise, misrepresentation and the knowing concealment, suppression, or omission of material facts in their sale and advertisement of the Windows in the State of New Jersey MIWD engaged in the concealment, suppression, or omission in violation of the CFA when, in selling and advertising the Windows, MIWD knew that there were defects in the Windows which would result in water damage, ensuing other property damage, and mold growth MIWD engaged in the concealment, suppression, or omission of the aforementioned material facts with the intent that others, such as Plaintiff, Plaintiff s Builder; Class Members, Class Member s Builders, and/or the general public would rely upon the concealment, suppression, or omission of such material facts and purchase MIWD s Windows containing said design defect Plaintiff, Plaintiff s Builder, Class Members, and/or Class Member s builders 52

53 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 53 of 65 would not have purchased the Windows had they known or become informed of the material defects in the Windows MIWD s concealment, suppression, or omission of material facts as alleged herein constitute unfair, deceptive and fraudulent business practices within the meaning of the CFA MIWD has acted unfairly and deceptively by misrepresenting the quality of the Windows MIWD either knew, or should have known, that the Windows were defectively designed and/or manufactured and would allow water intrusion, which would result in severe damages to the structures, such that the structures were not as represented to be as alleged herein Upon information and belief, MIWD knew that, at the time Windows left MIWD s control, the Windows contain the defect described herein resulting in water intrusion and mold growth. At the time of sale, the Windows contained design and construction defects. The defects reduced the effectiveness and performance of the Windows and rendered it unable to perform the ordinary purposes for which it was used as well as cause the resulting damage described herein As a direct and proximate cause of the violation of the CFA, described above, Plaintiff and members of the Class have been injured in that they have purchased homes or other structures with the defective Windows based on nondisclosure of material facts alleged above. Had Plaintiff and Class Members known the defective nature of the Windows used on their structures, they would not have purchased their structures, or would have paid a lower price for their structures. 53

54 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 54 of MIWD used unfair methods of competition and unfair or deceptive acts or practices in conducting their businesses. This conduct constitutes fraud within meaning of the CFA. This unlawful conduct is continuing, with no indication that MIWD will cease MIWD s actions in connection with the manufacturing and distributing of Windows as set forth herein evidences a lack of good faith, honesty in fact and observance of fair dealing so as to constitute unconscionable commercial practices, in violation of the State of New Jersey Consumer Fraud Act, N.J. Rev. Stat 56:8-1, et seq MIWD acted willfully, knowingly, intentionally, unconscionably and with reckless indifference when it committed these acts of consumer fraud As a direct and proximate result of MIWD s unfair and deceptive acts and practices, Plaintiff and the other members of the Class will suffer damages, which include, without limitation, costs to inspect, repair or replace their Windows and other property, in an amount to be determined at trial As a result of the acts of consumer fraud described above, Plaintiff and the Class have suffered ascertainable loss in the form of actual damages that include the purchase price of the products for which MIWD is liable to the Plaintiff and the Class for treble their ascertainable losses, plus attorneys fees and costs, along with equitable relief prayed for herein in this Complaint. COUNT THIRTEEN UNFAIR AND DECEPTIVE TRADE PRACTICES IN VIOLATION OF NEW YORK GENERAL BUSINESS LAW 349 (On Behalf of Class Members Represented by Plaintiff Hildebrand) 277. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this 54

55 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 55 of 65 Complaint as though fully set forth herein This is action is brought to secure redress for the unlawful, deceptive and unfair trade practices perpetrated by MIWD on behalf of Plaintiff and the Class members Plaintiff and Class Members are consumers and as owners of properties with Defendant s products attached to them, they are the end users and intended beneficiaries of said products As a seller of Windows to the consuming public and whose conduct affects similarly situated consumers and has a broad impact on consumers at large, Defendant is engaged in consumer-oriented conduct within the intended ambit of GBL Defendant s actions and/or omissions as described herein violated GBL 349, which declares as unlawful deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state Specifically, Defendant knowingly misrepresented and intentionally omitted and concealed material information regarding its Windows by failing to disclose to Plaintiff and Class Members the known defects in their product and the known risks associated with same Furthermore, Defendant engaged in materially misleading deceptive acts and practices by continuing to sell its Windows to the consuming public with knowledge that the Windows would not perform as intended, represented and warranted, and that the Windows would prematurely fail causing homeowners to incur significant out of pocket costs and expenses in repairing damaged property and replacing their windows Defendant also engaged in materially misleading deceptive acts and practices by issuing a Warranty that only covered original owners and not subsequent purchasers when 55

56 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 56 of 65 MIWD knew that the Windows would fail prior to the expiration of the 10 year warranty and that many original owners would likely sell their home to a subsequent purchaser prior to the expiration of the Windows warranted life Additionally, MIWD engaged in materially misleading deceptive acts and practices by requiring original owners who are covered under the Warranty to incur additional out of pocket expenses for replacement parts and/or labor associated with the repair and/or replacement of their Windows when the Windows fail prior to the expiration of their warranted life. MIWD also unfairly charges original owners who attempt to make a warranty claim additional fees for MIWD to inspect their property to determine whether or not a warranted loss has occurred Defendant s misrepresentations and concealment of material facts constitute unconscionable commercial practices, deception, fraud, false pretenses, misrepresentation, and/or the knowing concealment, suppression, or omission of materials facts with the intent that others rely on such concealment, suppression, or omission in connection with the sale and use of Defendant s Windows in violation of GBL Defendant violated GBL 349 by knowingly and falsely representing that Defendant s Windows were fit to be used for the purpose for which they were intended, when Defendant knew they were defective, unreliable, and unsafe and by other acts alleged herein Defendant s deceptive and misleading actions and omissions as set forth herein have caused and continue to cause injury to Plaintiff and the Class Members New York has enacted statutes to protect consumers from deceptive, fraudulent, and unconscionable trade and business practices such as those alleged in this Complaint. 56

57 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 57 of As a direct and proximate result of Defendant s violations of GBL 349, Plaintiff and the Class members have suffered and continue to suffer damages. Plaintiff and the Class Members are entitled to compensatory damages, equitable and declaratory relief, punitive damages, costs and reasonable attorneys fees. COUNT FOURTEEN NEGLIGENT MISREPRESENTATION (On Behalf of Class Members Represented by Plaintiff Nash and Wani) 291. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein Plaintiffs bring this claim individually and on behalf of the members of the Class against Defendant MIWD represented that the Windows would be free from defects and fit for their customary and normal use MIWD represented that the Windows would conform to all applicable building codes and industry standards as discussed herein These representations were material facts that influenced Plaintiffs Builders, Plaintiffs', Class Members and/or Class members builders purchase of the Windows MIWD made these representations with the intent to induce Plaintiffs and Class members to act upon them purchasing the Windows At the time Defendant made these representations, MIWD knew or should have known that these representations were false or made them without knowledge of their truth or veracity. 57

58 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 58 of Plaintiffs, Plaintiffs Builders, Class Members and/or Class members builders justifiably and detrimentally relied on these representations and, as a proximate result thereof, have and will continue to suffer damages in the form of lost money from the purchase price and property damage and/or having to pay to repair and replace the defective windows Plaintiffs and Class members suffered a loss of money in an amount to be proven at trial as a result of Defendant s wrongful conduct because: (a) they would not have purchased the Windows on the same terms if the true facts concerning the defective Windows had been known; (b) they paid a price premium due to they would be free from defects; and (c) the Windows did not perform as promised. COUNT FIFTEEN FRAUDULENT CONCEALMENT BY SILENCE (On Behalf of Class Members Represented by Plaintiffs McGaffin) 300. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein MIWD knew or should have known that the Windows were defective in design, were not fit for their ordinary and intended use, and performed in accordance with neither the advertisements, marketing materials, warranties, installation instructions and/or specifications disseminated by MIWD nor the reasonable expectations of Plaintiffs builders and Class Members builders However, Plaintiffs, Plaintiffs Builders, Class Members and/or Class Members Builders did have this knowledge and could not have discovered that the Windows were defective by the exercise of reasonable diligence. 58

59 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 59 of MIWD fraudulently concealed from and/or intentionally failed to disclose to Plaintiffs and the Class that the Windows are defective MIWD had exclusive knowledge of the defective nature of the Windows at the time of sale. The defect is latent and not something that Plaintiffs, Class members, Plaintiffs Builders and/or Class Members Builders, in the exercise of reasonable diligence, could have discovered independently prior to purchase, because it is not feasible MIWD had the capacity to, and did, deceive Plaintiffs, Plaintiffs Builders, Class members and/or Class Members Builders into believing that they were purchasing homes with Windows free from defects MIWD undertook active and ongoing steps to conceal the defect from Plaintiffs, Plaintiffs builders, Class Members, and/or Class Members Builders.. Plaintiffs are aware of nothing in MIWD s advertising, publicity or marketing materials that disclosed the truth about the defect, despite MIWD s awareness of the problem The facts concealed and/or not disclosed by MWID to Plaintiffs, Plaintiffs Builders, Class members and/or Class Members Builders are material facts in that a reasonable person would have considered them important in deciding whether to purchase (or to pay the same price for) the homes containing the Windows from their builders MIWD intentionally concealed and/or failed to disclose material factors for the purpose of inducing Plaintiffs, Plaintiffs Builders and the Class Members builders to act thereon Plaintiffs and the Class justifiably acted or indirectly relied upon the concealed and/or nondisclosed facts to their detriment, as evidenced by Plaintiffs Builders and/or Class Members purchase of the Windows by relying on MIWD s advertisements or specifications regarding the quality of the Windows. 59

60 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 60 of Plaintiffs and Class members suffered a loss of money in an amount to be proven at trial as a result of MIWD s fraudulent concealment and nondisclosure because: (a) they would not have purchased the Windows on the same terms if the true facts concerning the defective Windows had been known; (b) they paid a price premium due to they would be free from defects; and (c) the Windows did not perform as promised By reason of the foregoing, Plaintiffs and Class members suffered, and continue to suffer, financial damage and injury. COUNT SIXTEEN UNJUST ENRICHMENT (On Behalf of Class Members Represented by Plaintiffs Hildebrand and Womack) 312. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein Substantial benefits have been conferred on MIWD by Plaintiff and the Class and MIWD have appreciated these benefits MIWD s acceptance and retention of these benefits under the circumstances make it inequitable for MIWD to retain the benefits without payment of the value to the Plaintiff and the Class MIWD by the deliberate and fraudulent conduct complained of herein, have been unjustly enriched in a manner that warrants restitution As a proximate consequence of MIWD s improper conduct, the Plaintiff and the Class members were injured. MIWD have been unjustly enriched, and in equity, should not be allowed to obtain this benefit. 60

61 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 61 of 65 COUNT SEVENTEEN VIOLATION OF MAGNUSON-MOSS ACT (On Behalf of Class Members Represented by Plaintiff Womack) 317. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein The Magnuson-Moss Consumer Products Liability Act, 15 U.S.C 2301, et seq. ( MMCPWA or the Act ) provides a private right of action to purchasers of consumer products against retailers who, inter alia, fail to comply with the terms of a written warranty, express warranty and/or implied warranty. As demonstrated above, MIWD has failed to comply with the terms of its warranties, written, express and implied, with regard to the Windows that it advertised, distributed, marketed and/or sold Plaintiff and the members of the Class are consumers under the MMCPWA MIWD has been given a reasonable opportunity by Plaintiff and other Class members to cure such failures to comply and has repeatedly failed to do so By virtue of the foregoing, MIWD and other members of the Class are entitled to an award of damages and other appropriate relief, including attorneys fees. COUNT EIGHTEEN DECLARATORY RELIEF (On Behalf of Class Members Represented by Plaintiffs Hildebrand, DeBlaker, Womack, Bradley and Kennedy) 322. Plaintiffs individually and on behalf of all others similarly situated, adopt and incorporate by reference all allegations contained in all of the preceding paragraphs of this Complaint as though fully set forth herein MIWD has acted or refused to act on grounds that apply generally to Class Members so that final injunctive relief or corresponding declaratory relief is appropriate 61

62 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 62 of 65 respecting the Class as a whole within the meaning of Fed. R. Civ. P There is an actual controversy between MIWD and the Class Members concerning the limitations on MIWD s warranty and the defective design and/or manufacture or MIWD s Windows. MIWD has acted or refuses to act on grounds that apply generally to the Declaratory Relief Class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the Class as a whole within the meaning of Fed. R. Civ. P. 23(b)(2) Pursuant to 28 U.S.C. 2201, this Court may declare the rights and legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought MIWD has wrongfully denied warranty claims due to the claims being filed by subsequent purchasers and/or because MIWD has asserted that the water leaks and problems are due to inadequate installation of the Windows despite the root cause of the leaks being the latent design and/or manufacture of the Windows Accordingly, Plaintiffs seek a declaration that: a) the Windows have defects which include and result in inadequate weep systems, a premature failure of the seal, and lack or loss of sealant at joint permitting water intrusion into the interior of structures on which the Windows are attached; b) certain provisions of Defendant s warranty are void as unconscionable because it does not provide warranty or replacement services for all of its Windows which are defective; c) certain provisions of Defendant s warranty are void as unconscionable because the Windows do not conform to the representations or warranties as represented in the Windows themselves; 62

63 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 63 of 65 d) Defendant must notify owners of the defects e) the limitation of the warranty to only the first purchaser is removed; f) Defendant will reassess all prior warranty claims and pay the full cost of repairs and damages; and g) Defendant will pay the cost of inspection to determine whether any Class members Windows need replacement. PRAYER FOR RELIEF WHEREFORE, Named Plaintiffs pray that this case be certified and maintained as a class action and for judgment to be entered upon MIWD as follows: 1. For actual and compensatory damages on behalf of Named Plaintiffs and all Class Members; 2. For restitution and disgorgement; 3. For punitive damages or statutory damages, as otherwise applicable; 4. For injunctive and declaratory relief, as claimed herein; 5. For equitable relief; 6. For reasonable attorneys fees and reimbursement of all costs for the prosecution of this action; and For such other and further relief as this Court deems just and appropriate. JURY TRIAL DEMANDED Named Plaintiffs demand a trial by jury on all issues so triable. Respectfully submitted, [signature on following page] 63

64 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 64 of 65 JUSTIN O'TOOLE LUCEY, P.A. By: s/justin Lucey Justin Lucey (Fed. ID No. 5613) Harper L. Todd (Fed ID No ) 415 Mill Street Post Office Box 806 Mount Pleasant, SC Telephone: (843) Fax: (843) Daniel K. Bryson, Esquire Scott C. Harris, Esquire Whitfield Bryson & Mason LLP 900 W. Morgan Street Raleigh, NC Jordan L. Chaikin, Esquire Parker Waichman, LLP 3301 Bonita Beach Road, Suite 101 Bonita Springs, FL John Climaco, Esquire John Peca, Esquire Climaco, Wilcox, Peca, Tarantino & Garofoli Co.,LPA 55 Public, Suite 1950 Cleveland, OH James C. Shah, Esquire Natalie Finkelman Bennett, Esquire Shepherd Finkelman Miller & Shah, LLC 35 E. State Street Media, PA Richard Arsenault, Esquire Sri Gupta, Esquire Neblett, Beard & Arsenault 64

65 2:12-mn DCN Date Filed 03/11/13 Entry Number 76 Page 65 of Bonaventure Court Alexandria, LA Alyson Oliver Oliver Law Group PC 950 W. University Ste. 200 Rochester, MI Edward Eshoo, Jr. Childress Duffy, Ltd. 500 North Dearborn St. Chicago, Illinois Jonathan Shub, Esquire Scott George, Esquire Seeger Weiss LLP 1515 Market St Suite 1380 Philadelphia, PA Charleston, South Carolina Dated: March 11, 2013 Attorneys for the Homeowner Plaintiffs 65

66 2:12-mn DCN Date Filed 03/11/13 Entry Number 76-1 Page 1 of 1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed with the Clerk of the United States District Court for the District of South Carolina this 11 th day of March, 2013, and served on all parties of record via the CM/ECF system and . Respectfully submitted, March 11, 2013 Charleston, South Carolina By: JUSTIN O TOOLE LUCEY, P.A. s/ Justin Lucey Justin Lucey (Fed. ID No. 5613) Harper L. Todd (Fed. ID No ) 415 Mill Street Post Office Box 806 Mount Pleasant, SC (843) phone (843) facsimile Liaison Attorney for Plaintiffs

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