2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 1 of 28 Pg ID 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

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1 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 1 of 28 Pg ID 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN COLIN O BRIEN, individually and on behalf of himself and all others similarly situated, v. Plaintiffs, Case No. (JURY TRIAL DEMANDED) WHIRLPOOL CORPORATION, Defendant CLASS ACTION COMPLAINT Plaintiff, Colin O Brien ( Plaintiff or O Brien ), by and through undersigned counsel, brings this putative Class Action Complaint against Defendant, Whirlpool Corporation ( Whirlpool ), individually and on behalf of the Class and Subclass defined herein, and in support thereof makes the following allegations based upon information and belief, except as to allegations specifically pertaining to Plaintiff himself, which are based upon personal knowledge. NATURE OF THIS ACTION 1. Whirlpool is one of the largest home appliance companies in the world with its appliances being marketed in nearly every country across the globe. In 2006, Whirlpool merged with the Maytag Corporation and now manufactures, designs, advertises, markets, warrants, distributes and/or sells Maytag branded appliances.

2 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 2 of 28 Pg ID 2 2. Whirlpool participated, and continues to participate, in the marketing, sale, manufacturing and/or design of appliances branded with the Maytag name. This includes, but is not limited to, the Maytag Centennial washing machine. 3. Whirlpool s Maytag brand Centennial washing machines (the Maytag Centennial Washer(s) or Washer(s) ) fail to perform in a manner consistent with their intended purpose as durable and suitable washing machines. As a result of a design defect, Maytag Centennial Washers repeatedly break down, fail to effectively clean clothes, use excessive water, and otherwise fail to perform during normal use. Specifically, Maytag Centennial Washers contain a design defect that causes the Washers to malfunction, improperly repeating functions (i.e. refilling with water) during a single wash cycle. This results in clothes remaining soaking wet, and often still soapy, after the Washer stops. 4. Plaintiff brings this consumer protection class action to remedy violations of applicable law in connection with Whirlpool s marketing, advertising, selling, warranting, and servicing of its defectively designed Washers. Upon information and belief, the control panel of the Maytag Centennial Washers is defective, causing the washers to malfunction and/or cease operation altogether. 5. Whirlpool knew, or should have known, that the Maytag Centennial Washers were defective. Instead, Whirlpool continued to market the Washers as state-of-the-art and dependable. Whirlpool fraudulently concealed this defect from the public through false and misleading statements and the concealment of material facts. 6. As a result of this design defect, the Maytag Centennial Washers are unusable in the manner, to the extent to, and for the purpose for which the Washers were advertised, marketed and sold by Whirlpool. 2

3 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 3 of 28 Pg ID 3 7. Whirlpool s misconduct in this regard and the defective nature of the Maytag Centennial Washers has caused Plaintiff and the members of the Class and Subclass, who have bought thousands of these Washers, to suffer substantial and continuing injury. 8. Plaintiff, thus, asserts claims for violation of the Magnuson-Moss Act (15 U.S.C ) with respect to written and implied warranties, Michigan s Consumer Protection Act (Michigan Comp. Laws Ann et seq.), as well as claims for breach of express warranty and the implied warranty of merchantability and for unjust enrichment under the laws of the State of Michigan. 9. Plaintiff asserts claims for damages and injunctive relief on behalf of himself and the proposed Class and Subclass, as defined below. Plaintiff seeks actual and/or compensatory damages, as well as equitable relief, including the replacement and/or recall of the defective Maytag Centennial Washers and/or repair and maintenance costs attributable to the defect, as well as costs and expenses of litigation, including attorneys fees, to the extent permitted by applicable law, and all additional and further relief that may be available. THE PARTIES 10. Plaintiff is, and at all times relevant to this action has been, a resident and citizen of the United States and the State of Michigan. O Brien purchased a Maytag Centennial Washer, model number MVWC200XW2, on October 9, Plaintiff O Brien purchased a Maytag Centennial Washer because he wanted a high quality top-loading washing machine. He was familiar with the Maytag brand and understood that it was a solid brand with a reputation for dependability and quality. Plaintiff had seen advertisements featuring the Maytag Man repairman, who was depicted as lonely and bored because Maytag 3

4 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 4 of 28 Pg ID 4 appliances did not break down. 12. Plaintiff also understood that Whirlpool and/or Maytag was a Michigan-based company and he wanted to support Michigan, and U.S., manufacturing. 13. Plaintiff paid $ for the Washer, plus sales tax, for a total of $ Plaintiff believed that he was paying more money for the quality and reliability of a Maytag appliance. 15. At all times relevant hereto, Plaintiff used his Washer as it was intended to be used. 16. On or about September of 2013, Plaintiff began experiencing problems with his Maytag Centennial Washer in that the machine would malfunction refilling more than once during a single wash cycle, failing to adequately spin the clothing and drain the water, making loud banging noises and shaking violently or otherwise failing to operate properly. 17. On one occasion, on or about September of 2013, Plaintiff s Washer shook so violently that it moved approximately 4 to 5 feet away from the wall where it had been placed. The tile on the floor of Plaintiff s laundry room was cracked as a result of the machine malfunctioning. 18. Plaintiff contacted the Whirlpool Maytag customer service department regarding the malfunction in April of Initially, the customer service representative told him that he had two options: he could set up a service call at his expense of approximately $75 or he could pay $299 for both a service call and replacement parts. Plaintiff declined these options, as Whirlpool refused to cover any of the expenses associated with the service call or repair. 19. The customer service representative never informed Plaintiff that the Washer was defective or that numerous other customers had reported having the same problem with their Maytag Centennial Washers. 4

5 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 5 of 28 Pg ID Later, after additional correspondence with Plaintiff and/or his wife, the customer service representative gave O Brien an additional option. She informed Plaintiff that he would have to pay for the service call, but that the cost of any replacement parts would be covered by Whirlpool. Plaintiff did not elect to pay for the service call, which he understood would cost approximately $ Plaintiff stopped using his defective Maytag Centennial Washer in April of O Brien replaced his Maytag Centennial Washer with a used top loading washing machine at a cost of approximately $120. Plaintiff purchased a used machine as a replacement as he did not want a machine, like the Maytag Centennial Washer, that was operated by using a computerized control panel. 23. Whirlpool is a Delaware corporation that maintains its principal place of business at 2000 N M 63, Benton Harbor, MI At all times relevant hereto, Whirlpool has been a citizen of the State of Michigan and has conducted business in Michigan. Whirlpool advertises, markets, distributes, and sells Maytag brand products, including the Maytag Centennial Washer, throughout the United States, including this judicial district, by and through various authorized dealers. JURISDICTION AND VENUE 24. This Court has subject matter jurisdiction over this civil action pursuant to 28 U.S.C. 1332(d) because this action is a class action filed under Rule 23 of the Federal Rules of Civil Procedure, the amount in controversy exceeds $5,000,000, exclusive of interest and costs, and there are members of the Class and Subclass who are citizens of a different state than the Defendant. 25. This Court has personal jurisdiction over Defendant pursuant to Mich. Comp. Laws in that Whirlpool is a corporation doing business within the state of Michigan. 5

6 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 6 of 28 Pg ID Venue is proper in this judicial district under 28 U.S.C because Whirlpool does business throughout this district and a substantial part of the events or omissions giving rise to Plaintiff s claims occurred in this district. At all pertinent times, Whirlpool was and is in the business of marketing, advertising, distributing, and selling products, including the Maytag Centennial Washers, throughout Michigan and this judicial district, and nationwide, by and through various authorized dealers. The Maytag Centennial Washers that form the basis of this Complaint were purchased from Whirlpool and/or from Whirlpool s authorized dealers and placed in the stream of commerce by Whirlpool. FACTUAL BACKGROUND 27. Whirlpool is one of the largest appliance companies in the world, offering a wide array of products, including consumer home appliances, such as the Maytag Centennial Washer. The Maytag brand is a proprietary brand of Whirlpool. 28. Whirlpool advertises its Maytag products, including the Maytag Centennial Washers, as extremely dependable, long-lasting, and high quality machines. 29. At all times relevant to this Complaint, Whirlpool has participated in the marketing, sale, manufacturing, warranting and/or design of Maytag Centennial Washers. 30. Upon information and belief, the Maytag Centennial Washers were released for sale to the public in Whirlpool manufactured, produced, and/or distributed Maytag Centennial Washers for sale by its network of authorized dealers including several leading retailers in the United States, such as Lowe s, Sears, and other large chains. 6

7 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 7 of 28 Pg ID Whirlpool provided Plaintiff and each purchaser of the Maytag Centennial Washers with an express one-year factory warranty as follows: For one year from the date of purchase, when this major appliance is installed, operated, and maintained according to instructions attached to or furnished with the product, Maytag brand of Whirlpool Corporation or Whirlpool Canada LP (hereafter Maytag ) will pay for factory specified replacement parts and repair labor to correct defects in materials or workmanship that existed when this major appliance was purchased. 33. Whirlpool has these same obligations with respect to Plaintiff and all Class and Subclass members, but has failed to meet them. 34. With each sale of these Washers, via user manuals, advertisements, pamphlets, brochures, circulars, samples, and/or models, Whirlpool marketed, advertised, and expressly and impliedly warranted that the defective Maytag Centennial Washers were of merchantable quality fit for the ordinary purpose for which such goods were used and were free from defects, or at a minimum would not malfunction. 35. The Maytag Centennial Washers at issue have a control panel, which contains a touchpad on the outside surface of the washer. Consumers use the control panel to direct the use of the Washers, such as selecting the water temperature and the size of the load. 36. Upon information and belief, the control panels on the Maytag Centennial Washers are defective, causing the washer to malfunction. 37. The defects cause the Washers to (a) repeat functions within a single wash cycle; (b) shake violently and move across the floor; (c) fail to clean and remove water and soap from items placed in the washer; (d) use an excessive and unnecessary amount of water; and (e) be unusable in the manner, to the extent to, and for the purpose for which the washers were advertised, marketed, and sold. 7

8 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 8 of 28 Pg ID Whirlpool did not repair or replace the defective parts in the Maytag Centennial Washers owned by Plaintiff and members of the Class and/or Subclass free of charge. 39. Whirlpool has known, or reasonably should have known, that the Maytag Centennial Washers were defective, since at least Indeed, any reasonable and customary testing of the Washers prior to their release to the public would have provided Whirlpool with knowledge that the Washers were defective as described herein. 41. Plaintiff complained to Whirlpool s customer service personnel about the defects in his Maytag Centennial Washer in April of Many other purchasers of Maytag Centennial Washers have complained directly (and indirectly) to Whirlpool and its authorized dealers and customer service representatives about the defective Maytag Centennial Washers. 43. Buyers of the Maytag Centennial Washers have also posted numerous complaints about the defective Maytag Centennial Washers on various Internet websites, complaint boards, and forums. 44. Persons purporting to be authorized agents of Whirlpool have responded to some of those online complaints by asking for information about the washers, but have not disclosed the inherent defects. See, e.g., After being placed repeatedly on notice of the aforementioned defects in its Maytag Centennial Washers, Whirlpool has continued to: a) Design, manufacture, distribute and sell Maytag Centennial Washers with defects that cause the Washers to malfunction; 8

9 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 9 of 28 Pg ID 9 b) Design, manufacture, market, advertise, distribute, and sell the Maytag Centennial Washers when it knew or should have known the Washers were not dependable and would not withstand normal operation; c) Represent expressly or implicitly that Maytag Centennial Washers were dependable, affordable, and high quality when it knew that these statements were false; d) Fail to disclose the defects in the Maytag Centennial Washers to consumers; e) Fail to disclose to consumers the significant risk that the Maytag Centennial Washer would malfunction; f) Fail to disclose the numerous complaints it received from consumers; g) Fail to implement a recall to adequately announce, remedy, and correct the defects for consumers; and h) Fail to correct its omissions or false or misleading express representations about the use, efficacy, qualities, and benefits of its Maytag Centennial Washers. 46. Whirlpool knew, or should have known, that the value of the Maytag Centennial Washers was inflated by its misrepresentations and misleading information about the Washers. 47. Whirlpool has profited, either directly or indirectly, by hiding the defects, and continuing to sell the Maytag Centennial Washers at premium prices. 48. As a result of Whirlpool s false and misleading statements and concealment, and Whirlpool s other actions described herein, Plaintiff, the Class, and the Subclass bought thousands of Maytag Centennial Washers and have suffered and continue to suffer injury due to the defective nature of these Washers. 49. Due to the defect, Plaintiff and the members of the Class and Subclass overpaid for the Maytag Centennial Washers. 50. If Plaintiff and the members of the Class and Subclass had known about the defects in the Maytag Centennial Washers, they would not have paid the significant sums that they paid for the Washers. 9

10 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 10 of 28 Pg ID If the Maytag Centennial Washers were properly designed, Plaintiff, the Class, and the Subclass would not have suffered the damages complained of herein. 52. The defect was the direct, proximate, and foreseeable cause of damages incurred by Plaintiff and members of the Class. CLASS ACTION ALLEGATIONS 53. Pursuant to Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, Plaintiff brings this action on behalf of himself and members of the Class defined as follows: Nationwide Class: All persons residing in the United States who purchased, not for resale, a Maytag Centennial Washer ( Class ). 54. Plaintiff also brings this action on behalf of himself and members of a Subclass comprised of: Michigan Subclass: All persons who purchased, not for resale, a Maytag Centennial Washer in the State of Michigan ( Michigan Subclass ). 55. Excluded from the Class and Subclass is any entity in which Whirlpool has a controlling interest or which has a controlling interest in Whirlpool, and Whirlpool s legal representatives, assigns, and successors. Also excluded is the judge assigned to this case and any member of the judge s immediate family. Further excluded from the Class and Subclass is anyone asserting a claim for personal injury. Plaintiff reserves the right to amend this Class and Subclass definition if discovery and/or further investigation reveals that they should be expanded or otherwise modified. 56. Numerosity: The members of the Class and Subclass are so numerous that joinder of all members is impracticable. The proposed Class and Subclass each include thousands of 10

11 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 11 of 28 Pg ID 11 members geographically disbursed throughout the United States, including in Michigan. The precise number of members of each of the classes can be ascertained through discovery and is readily identifiable from information and records in the possession of Whirlpool and third parties. 57. Commonality and Predominance: Common questions of law and fact exist as to all members of the Class and Subclass. These questions predominate over questions that may affect only individual Class and Subclass members because Defendant has acted on grounds generally applicable to the Class and Subclass. Such common legal or factual questions include: a) Whether Maytag Centennial Washers are defective; b) Whether Maytag Centennial Washers are defectively designed and/or manufactured; c) Whether, prior to sale, Whirlpool knew or reasonably should have known about the defect in its Maytag Centennial Washers; d) Whether Whirlpool concealed from and/or failed to disclose to Plaintiff and the Class and Subclass material facts regarding the defect with the Maytag Centennial Washer; e) Whether Whirlpool knew or reasonably should have known about the defect after distributing the Maytag Centennial Washers to Plaintiff and the Class and Subclass; f) Whether Whirlpool breached express warranties relating to the Maytag Centennial Washers; g) Whether Whirlpool breached the implied warranty of merchantability relating to the Maytag Centennial Washers; h) Whether Whirlpool was unjustly enriched by receiving monies in exchange for the defective Maytag Centennial Washers; i) Whether Whirlpool should be ordered to disgorge all or part of the illgotten profits the company received from the sale of the defective Maytag Centennial Washers; j) Whether Plaintiff and the Class and Subclass are entitled to damages, including compensatory, exemplary, and statutory damages, and the 11

12 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 12 of 28 Pg ID 12 amount of such damages; k) Whether Whirlpool should be enjoined from selling and marketing its defective Maytag Centennial Washers; and l) Whether Whirlpool engaged in unfair, unconscionable, or deceptive trade practices by selling and/or marketing defective Maytag Centennial Washers. 58. Typicality: Plaintiff s claims are typical of the claims of the members of the Class and Subclass. Plaintiff and all members of the Class and Subclass have been similarly injured by Whirlpool s unlawful conduct. Plaintiff and all members of the Class and Subclass own defective Maytag Centennial Washers and their claims arise from the same wrongful practices and course of conduct that give rise to the claims of members of the Class and Subclass and are based on the same legal theories. 59. Adequacy: Plaintiff will fairly and adequately assert and protect the interests of the Class and Subclass and has retained class counsel experienced and competent in the prosecution of complex class action litigation. Neither Plaintiff nor his attorneys have any interests contrary to or in conflict with the Class and Subclass that Plaintiff seeks to represent. 60. Superiority: Class action treatment is a superior method for the fair and efficient adjudication of this controversy, in that, among other things, such treatment will permit a large number of similarly situated persons or entities to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of evidence, effort, expense, or the possibility of inconsistent or contradictory judgments that numerous individual actions would engender. While the aggregate damages sustained by the Class and Subclass are likely in the millions of dollars, the individual damages incurred by each Class and/or Subclass member resulting from Whirlpool s wrongful conduct are too small to warrant the expense of individual suits. 12

13 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 13 of 28 Pg ID 13 Consequently, the likelihood of individual class members prosecuting separate claims is remote, and even if every member of the Class and Subclass could afford individual litigation, the court system would be unduly burdened by individual litigation of such cases. The benefits of the class mechanism, including providing injured persons or entities with a method for obtaining redress on claims that might not be practicable to pursue individually, substantially outweigh any difficulties that may arise in the management of this class action. 61. Plaintiff knows of no difficulty to be encountered in the maintenance of this action that would preclude its maintenance as a class action. 62. Whirlpool has acted or refused to act on grounds generally applicable to the Class and Subclass, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class and Subclass as a whole. FRAUDULENT CONCEALMENT 63. At all times relevant hereto, Whirlpool affirmatively concealed from Plaintiff and members of the Class and Subclass the defect with its Maytag Centennial Washers described herein. 64. Defendant had a duty to inform Plaintiff and members of the Class and Subclass of this defect, of which it knew or should have known. Notwithstanding its duty, Defendant took no steps to warn Plaintiff or members of the Class and Subclass of the defect with its Maytag Centennial Washers. Rather, Whirlpool concealed the existence of the defect as it continued to sell its defective Maytag Centennial Washers to Plaintiff and members of the Class and Subclass, often attributing resulting mechanical failures to misuse by customers. 65. Despite exercising reasonable diligence, Plaintiff and members of the Class and Subclass could not have discovered the defect with its Maytag Centennial Washers or Defendant s 13

14 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 14 of 28 Pg ID 14 scheme to avoid disclosure of the defect. Indeed, the defect in the design and/or manufacture of the Maytag Centennial Washers was not detectible to Plaintiff and members of the Class or Subclass until it manifested in a control panel failure. 66. Plaintiff and members of the Class and Subclass relied on representations that the Maytag Centennial Washers were free from defects. Plaintiff and members of the Class and Subclass would not have purchased their Maytag Centennial Washers had Whirlpool represented otherwise. 67. As a result of Defendant s active concealment of the defect with its Maytag Centennial Washers and/or Defendant s failure to inform Plaintiff and members of the Class and Subclass of this defect, the running of any and all statutes of limitations have been tolled with respect to any claims that Plaintiff or members of the Class or Subclass have brought or could have brought as a result of Defendant s unlawful and fraudulent course of conduct. Furthermore, Defendant is estopped from asserting any statute of limitation defense, contractual or otherwise, to the claims alleged herein by virtue of Defendant s fraudulent concealment of the defective nature of its Maytag Centennial Washers. COUNT I Asserted on Behalf of the Nationwide Class Breach of Express Warranty 68. Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein. 69. Whirlpool provided Plaintiff and each purchaser of the Maytag Centennial Washers with an express one-year warranty: For one year from the date of purchase, when this major appliance is installed, operated, and maintained according to instructions attached to or furnished with the product, Maytag brand of Whirlpool Corporation or Whirlpool Canada LP (hereafter 14

15 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 15 of 28 Pg ID 15 members. Maytag ) will pay for factory specified replacement parts and repair labor to correct defects in materials or workmanship that existed when this major appliance was purchased. 70. Whirlpool has these same obligations with respect to Plaintiff and all Class 71. Whirlpool expressly warranted via affirmations of facts and promises in its user manuals, advertisements, pamphlets, brochures, circulars, samples, and models that the Maytag Centennial Washers are fit for the ordinary purpose in which such goods are used. 72. Whirlpool s express warranties became part of the basis of the bargain between Whirlpool and Plaintiff and members of the Class. 73. Whirlpool uniformly warranted all of the Maytag Centennial Washers against defects in material or workmanship at a time when it knew the Washers suffered from serious defects and, nevertheless, continued to market and sell the Maytag Centennial Washers with this express warranty. 74. Whirlpool is obligated under the terms of its written warranty to repair the defective Maytag Centennial Washers sold to Plaintiff and members of the Class. 75. Whirlpool breached its express warranty because the Maytag Centennial Washers were not fit for the ordinary purpose in which such goods are used. Specifically, the Maytag Centennial Washers contain a defect that causes the control panels to fail and the washers malfunction, rendering the washers unusable for their ordinary purpose. Whirlpool also breached its express warranty by refusing to repair the Maytag Centennial Washers and/or replace the Washer parts damaged by the defect for the Class as a whole. 76. Plaintiff and members of the Class may be presumed to have relied upon the representation and/or warranty that they would be supplied a Washer free of defects and/or that 15

16 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 16 of 28 Pg ID 16 Whirlpool would remedy any defect pursuant to the terms of the warranty. 77. As set forth above, Whirlpool s warranty fails in its essential purpose and, accordingly, Plaintiff and members of the Class cannot and should not be limited to the remedies set forth in Whirlpool s written warranty and, instead, should be permitted to recover all measure of appropriate relief. 78. Whirlpool has received sufficient and timely notice of the breaches of warranty alleged herein. Despite this notice and Whirlpool s knowledge of the defect in its Maytag Centennial Washers, Whirlpool has failed and refused to honor its warranty, even though it knows of the defect inherent in the Washers. 79. Plaintiff and members of the Class have given Whirlpool a reasonable opportunity to cure its failures with respect to its warranty, and Whirlpool has failed and refused to do so. In the alternative, Whirlpool s conduct, as described herein, has negated any need for Plaintiff and members of the Class to provide Whirlpool with an opportunity to cure. 80. Whirlpool has failed to provide Plaintiff and members of the Class, as a warranty repair and/or replacement, a product that conforms to the qualities and characteristics that Whirlpool expressly warranted when it sold the Maytag Centennial Washers to Plaintiff and members of the Class. 81. As a result of Whirlpool s breach of warranty, Plaintiff and members of the Class and Subclass have suffered damages, injury in fact, and/or ascertainable loss, in an amount to be determined at trial. Alternatively, Plaintiff seeks to recover for Whirlpool s breach of express warranty under the substantially similar laws of the state of purchase, specifically: Michigan (Mich. Comp. Laws Ann ). 16

17 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 17 of 28 Pg ID 17 COUNT II Asserted On Behalf Of The Nationwide Class Implied Warranty Of Merchantability 82. Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein. 83. At all times relevant hereto, there was a duty imposed by law which requires that a manufacturer or seller s product be reasonably fit for the purposes for which such products are used, and that product be acceptable in trade for the product description. 84. A warranty that goods shall be merchantable and fit for the ordinary purposes for which such goods are used is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. 85. Defendant Whirlpool is a merchant in the sale of Maytag Centennial Washers to Plaintiff and members of the Class. 86. Whirlpool s implied warranty that its Maytag Centennial Washers were merchantable was part of the basis of the bargain between Whirlpool and Plaintiff and members of the Class. 87. Plaintiff and members of the Class are in privity with Whirlpool in that they purchased their Maytag Centennial Washers directly from Whirlpool or from an actual or apparent agent of Whirlpool. 88. Plaintiff and the members of the Class are also in privity with Defendant by virtue of the contractual relationship stemming from the manufacturer s warranty Whirlpool provided in conjunction with the purchase of the Maytag Centennial Washers, and which is enforceable by Plaintiff and the Class as against Whirlpool regardless of where, or from whom, the Maytag Centennial Washers were acquired. 17

18 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 18 of 28 Pg ID Whirlpool has not validly disclaimed, excluded, or modified the implied warranties and/or duties described herein, and/or any attempted disclaimer or exclusion of the same was and is ineffectual. 90. Whirlpool breached the implied warranty of merchantability because the Maytag Centennial Washers were not merchantable in that they were not fit for the ordinary purpose in which such goods are used. Specifically, the Maytag Centennial Washers contained defects that caused their control panels to fail, rendering them inoperable and thus unusable for their ordinary purpose. 91. As a result of Whirlpool s breach of its implied warranty, Plaintiff and members of the Class have suffered damages, injury in fact, and/or ascertainable loss, in an amount to be determined at trial. Alternatively, Plaintiff seeks to recover for Whirlpool s breach of implied warranty under the substantially similar laws of the state of purchase, specifically: Michigan (Mich. Comp. Laws Ann ). COUNT III Asserted In The Alternative, On Behalf Of The Michigan Subclass Breach of Express Warranty 92. Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein. Count I (c). 93. Plaintiff alleges Count III on behalf of the Michigan Subclass in the alternative to 94. Whirlpool is a seller within the meaning of Mich. Comp. Laws Ann. 95. The Maytag Centennial Washers are goods within the meaning of Mich. Comp. Laws Ann (1). 18

19 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 19 of 28 Pg ID Plaintiff and the members of the Subclass are buyers within the meaning of Mich. Comp. Laws Ann (a). 97. Whirlpool expressly warranted via affirmations of facts and promises in its user manuals, advertisements, pamphlets, brochures, circulars, samples, and models that the Maytag Centennial Washers are fit for the ordinary purpose in which such goods are used. 98. Whirlpool s express warranties became part of the basis of the bargain between Whirlpool and Plaintiff and members of the Subclass. 99. Whirlpool uniformly warranted all of the Maytag Centennial Washers against defects in material or workmanship at a time when it knew the Washers suffered from a serious defect and, nevertheless, continued to market and sell the Maytag Centennial Washers with this express warranty Whirlpool is obligated under the terms of its written warranty to repair and/or replace the defective Maytag Centennial Washers sold to Plaintiff and members of the Subclass Whirlpool breached its express warranty because the Maytag Centennial Washers were not fit for the ordinary purpose in which such goods are used. Specifically, the Maytag Centennial Washers contained a defect that caused the control panels to fail and the Washers to malfunction, rendering the Washers unusable for their ordinary purpose. Whirlpool also breached its express warranty by refusing to repair the Maytag Centennial Washers and/or replace the Washer parts damaged by the defects for the Subclass as a whole Plaintiff and members of the Subclass may be presumed to have relied upon the representation and/or warranty that they would be supplied a Washer free of defects and/or that Whirlpool would remedy any defect pursuant to the terms of the warranty. 19

20 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 20 of 28 Pg ID As set forth above, Whirlpool s warranty fails in its essential purpose and, accordingly, Plaintiff and members of the Subclass cannot and should not be limited to the remedies set forth in Whirlpool s written warranty and, instead, should be permitted to recover all measure of appropriate relief Whirlpool has received sufficient and timely notice of the breaches of warranty alleged herein. Despite this notice and Whirlpool s knowledge of the defects in its Maytag Centennial Washers, Whirlpool has failed and refused to honor its warranty, even though it knows of the defects inherent in the Washers Plaintiff and members of the Subclass have given Whirlpool a reasonable opportunity to cure its failures with respect to its warranty, and Whirlpool has failed and refused to do so. In the alternative, Whirlpool s conduct, as described herein, has negated any need for Plaintiff and members of the Subclass to provide Whirlpool with an opportunity to cure Whirlpool has failed to provide Plaintiff and members of the Subclass, as a warranty repair and/or replacement, a product that conforms to the qualities and characteristics that Whirlpool expressly warranted when it sold the Maytag Centennial Washers to Plaintiff and members of the Subclass As a result of Whirlpool s breach of warranty, Plaintiff and members of the Subclass have suffered damages, injury in fact, and/or ascertainable loss, in an amount to be determined at trial. COUNT IV Asserted In The Alternative, On Behalf Of The Michigan Subclass Implied Warranty Of Merchantability 108. Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein. 20

21 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 21 of 28 Pg ID Plaintiff alleges Count IV on behalf of the Michigan Subclass in the alternative to Count II The Maytag Centennial Washers are goods within the meaning of Mich. Comp. Laws Ann A warranty that goods shall be merchantable and fit for the ordinary purposes for which such goods are used is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind Whirlpool is a merchant within the meaning of Mich. Comp. Laws Ann with respect to the Maytag Centennial Washers A warranty that goods shall be merchantable and fit for the ordinary purposes for which such goods are used is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Mich. Comp. Laws Ann Whirlpool s implied warranty that its Maytag Centennial Washers were merchantable was part of the basis of the bargain between Whirlpool and Plaintiff and members of the Subclass Plaintiff and members of the Subclass are in privity with Whirlpool in that they purchased their Maytag Centennial Washers directly from Whirlpool or from an actual or apparent agent of Whirlpool Plaintiff and the members of the Subclass are also in privity with Defendant by virtue of the contractual relationship stemming from the manufacturer s warranty Whirlpool provided in conjunction with the purchase of the Maytag Centennial Washers, and which is enforceable by Plaintiffs and the Subclass as against Whirlpool regardless of where, or from whom, the Maytag Centennial Washers were acquired. 21

22 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 22 of 28 Pg ID At all times relevant hereto, there was a duty imposed by law which requires that Whirlpool s Maytag Centennial Washers be reasonably fit for the purposes for which washers are used, that they are of fair average quality within their description, and that they be acceptable in trade for their description Defendant has not validly disclaimed, excluded, or modified the implied warranties and/or duties described herein, and/or any attempted disclaimer or exclusion of the same was and is ineffectual Whirlpool breached the implied warranty of merchantability because the Maytag Centennial Washers were not merchantable in that they were not fit for the ordinary purpose in which such goods are used. Specifically, the Maytag Centennial Washers contain a defect that causes their control panels to malfunction, rendering them unusable for their ordinary purpose As a result of Whirlpool s breach of its implied warranty, Plaintiff and members of the Subclass have suffered damages, injury in fact, and/or ascertainable loss, in an amount to be determined at trial. COUNT V Asserted on Behalf of the Nationwide Class (Violations of Magnuson-Moss Act (15 U.S.C ) 121. Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein Whirlpool s Maytag Centennial Washers are consumer products within the meaning of 15 U.S.C. 2301(1). 2301(3) Plaintiff and members of the Class are consumers within the meaning of 15 U.S.C Whirlpool is a warrantor and supplier of the consumer products to consumers 22

23 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 23 of 28 Pg ID 23 and a warrantor within the meaning of 15 U.S.C. 2301(4-5) Whirlpool provided written and implied warranties regarding its Maytag Centennial Washers to Plaintiff and members of the Class within the meaning of 15 U.S.C. 2301(6-7). These warranties were identical in all material respects Whirlpool violated the Magnuson-Moss Warranty Act, 15 U.S.C et seq. by failing to comply with these written and implied warranties Plaintiff and members of the Class sustained injuries and damages as a result of Whirlpool s violation of their written and/or implied warranties In its capacity as a warrantor, and by the conduct described herein, any attempts by Defendant to limit the express and/or implied warranties in a manner that would exclude coverage of the defective Maytag Centennial Washers is unconscionable and any such effort to disclaim, or otherwise limit, liability for the defective Maytag Centennial Washers is null and void Whirlpool has received sufficient and timely written notice of the breaches of warranty alleged herein. Despite receipt of this written notice, Whirlpool has refused to comply with its warranty obligations or otherwise honor its warranty obligations as described herein All jurisdictional prerequisites have been satisfied By Defendant s conduct as described herein, including Whirlpool s knowledge of the defective Maytag Centennial Washers and its action, and inaction, in the face of that knowledge, Defendant has failed to comply with its obligations under its written and implied promises, warranties, and representations As a result of Defendant s breach of express and implied warranties, Plaintiff and members of the Class are entitled to revoke their acceptance of the Maytag Centennial Washers, obtain damages and equitable relief, and obtain attorneys fees and costs pursuant to 15 U.S.C. 23

24 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 24 of 28 Pg ID COUNT VI Asserted On Behalf of the Michigan Subclass Michigan Consumer Protection Act, Michigan Comp. Laws Ann et seq Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein Whirlpool s conduct in manufacturing, designing, engineering, fabricating, assembling, constructing, testing, examining, warranting, distributing, and/or marketing the Maytag Centennial Washers was an unfair method of competition and/or an unfair or deceptive act or practice in the conduct of any trade or commerce, in violation of Michigan Comp. Laws Ann otherwise known as the Michigan Consumer Protection Act Specifically, Section 903 of the Act provides in relevant part as follows: Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful and are defined as follows: *** (b) Using deceptive representations or deceptive designations of geographic origin in connection with goods or services. (e) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. *** (g) Advertising or representing goods or services with intent not to dispose of those goods or services as advertised or represented. *** (s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer. *** (bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is. *** (cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner The Michigan Consumer Protection Act applies to all claims of the members of the Subclass because the conduct which constitutes violations of the code by Whirlpool occurred within the state of Michigan. 24

25 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 25 of 28 Pg ID Plaintiff and members of the Subclass, as purchasers of the Maytag Centennial Washers, are consumers within the meaning of the Act because Defendant s business practices involve trade or commerce, are addressed to the market generally, and otherwise implicate consumer protection concerns Plaintiff and members of the Subclass relied on representations that the Maytag Centennial Washers were dependable and free from defects and/or that Whirlpool would remedy any defects pursuant to the terms of its warranty Whirlpool intended that Plaintiff and the members of the Subclass would rely on the deception by purchasing the Maytag Centennial Washers, unaware of the material defect described herein Plaintiffs and members of the Subclass were entitled to know that there was a significant risk that the Maytag Centennial Washers would malfunction (before and/or after the warranty period expired), as that fact would be material in a consumer s purchasing decision Plaintiff and members of the Subclass would not have purchased their Maytag Centennial Washers had Whirlpool represented otherwise Plaintiff and members of the Subclass have been injured and have suffered loss of money or property as a result of Whirlpool s unfair or deceptive acts or practices Members of the Subclass may be presumed to have relied upon the representation and/or warranty that they would be supplied a Maytag Centennial Washer free of defects and/or that any defects would be remedied by Whirlpool pursuant to the terms of the warranty. COUNT VII Asserted On Behalf Of The Nationwide Class Unjust Enrichment 144. Plaintiff hereby re-alleges and incorporates by reference each and every allegation 25

26 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 26 of 28 Pg ID 26 contained in all preceding paragraphs of this Complaint as if fully set forth herein Plaintiff and members of the Class conferred a benefit upon Whirlpool. Namely, Plaintiff and members of the Class paid money to Whirlpool for the Maytag Centennial Washers Whirlpool, however, retained that benefit under circumstances that make it unjust and inequitable for Whirlpool to retain it without paying Plaintiff and members of the Class the value thereof. Specifically, Whirlpool retained that benefit despite the fact that the Maytag Centennial Washers were defective Whirlpool s failure to pay for the benefits conferred upon it was detrimental to Plaintiff and members of the Class. COUNT VIII Asserted In The Alternative, On Behalf Of The Michigan Subclass Unjust Enrichment 148. Plaintiff hereby re-alleges and incorporates by reference each and every allegation contained in all preceding paragraphs of this Complaint as if fully set forth herein. Count VII Plaintiff alleges Count VIII on behalf of the Michigan Subclass in the alternative to 150. Plaintiff and members of the Subclass conferred a benefit upon Whirlpool. Namely, Plaintiff and members of the Subclass paid money to Whirlpool for ownership of the Maytag Centennial Washers Whirlpool retained that benefit under circumstances that make it unjust and inequitable for Whirlpool to retain it without paying Plaintiff and members of the Subclass the value thereof. Specifically, Whirlpool retained that benefit despite the fact that the Maytag Centennial Washers were defective. 26

27 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 27 of 28 Pg ID Whirlpool s failure to pay for the benefits conferred upon it was detrimental to Plaintiff and members of the Subclass. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all others similarly situated, respectfully requests that this Court: A. Certify the Class and Subclass pursuant to Rule 23 of the Federal Rules of Civil Procedure, appointing Plaintiff as representative of the Classes and Subclass, and appointing Plaintiff s counsel to represent the Class and Subclass; B. Enter a judgment against Whirlpool; C. Award damages, including compensatory, exemplary, and statutory damages, to Plaintiff and the Class and/or Subclass in an amount to be determined at trial; D. Grant restitution to Plaintiff and the Class and/or Subclass and require Whirlpool to disgorge its ill-gotten gains; E. Permanently enjoin Whirlpool from engaging in the wrongful and unlawful conduct alleged herein; F. Award Plaintiff and the Class and/or Subclass their expenses and costs of suit, including reasonable attorneys fees to the extent provided by law; G. Award Plaintiff and the Class and/or Subclass pre-judgment and post-judgment interest at the highest legal rate to the extent provided by law; and H. Award such further relief as the Court deems appropriate. 27

28 2:14-cv MFL-MKM Doc # 1 Filed 06/05/14 Pg 28 of 28 Pg ID 28 JURY DEMAND Plaintiff hereby demands a jury trial on all claims so triable. Respectfully submitted, Marc Lipton (P43877) Kyle Kelly (P69863) LIPTON LAW West 10 Mile Road Southfield, MI (248) (248) facsimile marc@liptonlaw.com E. Powell Miller (P39487) Marc Newman (P51393) Ann Miller (P43578) THE MILLER LAW FIRM, P.C. Miller Building 950 West University Drive, Suite 300 Rochester, MI (248) (248) facsimile mln@millerlawpc.com alm@millerlawpc.com Hassan A. Zavareei (D.C. Bar No ) (Admitted in E.D. Michigan) TYCKO & ZAVAREEI LLP 2000 L Street, N.W., Suite 808 Washington, D.C (202) (202) facsimile hzavareei@tzlegal.com Dated: June 5, 2014 Attorneys for Plaintiff Colin O Brien 28