flushmate complaint - Wexler Wallace LLP

Transcription

Case: 1:12-cv-09700 Document #: 1 Filed: 12/05/12 Page 1 of 24 PageID #:1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
MILEN DIMOV, TRIGONA DIMOV A,
SCOTT IVER, and NEAL OLD ERMAN, on
behalf of themselves and all others similarly
situated,
Case No.:
CLASS ACTION COMPLAINT
Plaintiffs,
vs.
SLOAN VALVE COMPANY, an Illinois
Corporation,
Defendant.
Plaintiffs
Milen
Dimov
and Trigona
Dimova,
Scott Iver,
and Neal
Olderman
("Plaintiffs"), on behalf of themselves and all others similarly situated, by and through their
undersigned counsel, upon personal knowledge, information, and belief allege as follows:
INTRODUCTION
1.
This is a Class Action for damages, restitution, and injunctive relief on behalf of
three classes as defined below concerning a defectively-designed
and manufactured
toilet
flushing system (the "Flushmate System") manufactured by Defendant Sloan Valve Company
("Defendant" or "Sloan").
2.
The Flushmate System is designed, manufactured, marketed, and sold by Illinois-
based Defendant Sloan.
3.
The Flushmate System is a pressure-assisted flushing system that is found in the
tank of certain toilets sold in the United States by manufacturers American Standard, Crane,
Eljer, Gerber, Kohler, Mansfield, and St. Thomas.
4.
According to Defendant, the Flushmate System works differently than traditional
flushing systems: "The FLUSHMATE® system traps air as it fills with water and uses the water
supply line pressure to compress the trapped air inside. The compressed air forces the water into
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the bowl, so instead of the 'pulling' or siphon action of a gravity unit, the pressure-assist unit
'pushes' waste out. This vigorous flushing action rinses the bowl better than gravity units."l
5.
The Flushmate
System is inherently
defective,
defectively
designed,
and
unreasonably dangerous.
6.
Due to its defective design, the pressure buildup in the Flushmate System can
cause it to burst at or near its vessel weld seam, releasing stored pressure. The vessel is located
inside the toilet tank.
7.
This release of stored pressure can cause the toilet tank to shatter, leading to the
release of water and extensive property damage.
8.
The rupture of the vessel also causes the Flushmate System to fail to function as
warranted or expected.
9.
Because of its inherent defects, the Flushmate System can lead to substantial
property damage (as well as serious physical injury) to Plaintiffs and members of the proposed
classes
10.
Members of the proposed classes who own Flushmate Systems that have not yet
exploded have suffered an expected harm as they own an inherently defective product and
because of the potential for rupture and leakage.
11.
Defendant Sloan instituted a recall of the system on June 21,2012 (the "Recall").
However, the Recall is deficient in a number of respects, and is, in fact, not a true recall, but is
instead a complicated and ultimately ineffective "repair kit" that fails to address the problem of
leaks.
12.
Plaintiffs and members of the proposed classes have been forced to spend time
and money to install the repair kit. Further, the Recall is deficient because it does not solve the
potential leak problem and it reduces the functionality of the Flushmate System.
13.
Plaintiffs and members of the proposed classes have been forced to spend money
to repair damage to their homes and property caused by the leakage of the Flushmate System.
1 What is a FLUSHMATE® Pressure-Assist Toilet?, http://www.flushmate.comlinstallation/ (last viewed
Nov. 19,2012).
2
14.
Defendant's
Plaintiffs
and members
of the proposed
classes have been damaged
by
failure to properly design, develop, test, manufacture, distribute, market, and sell
the Flushmate System.
PARTIES
Plaintiffs
15.
Plaintiffs and putative class representatives Milen Dimov and Trigona Dimova
(the "Illinois Plaintiffs") are citizens and residents of the State of Illinois. They co-own a home
in Elmhurst, DuPage County, Illinois, which they purchased in 2009. Plaintiffs own and have in
their home a Flushmate System that is subject to the Recall. The Flushmate System has leaked
and caused substantial damage to Plaintiffs' home. Plaintiffs have expended funds to replace
the drywall in the home because of the failure of the Flushmate System.
16.
Plaintiff and putative class representative
Scott Iver ("Iver") is a citizen and
resident of the State of Missouri, and owns a home in Florissant, St. Louis County, Missouri. In
2007, Mr. Iver remodeled his bathroom and purchased a Crane Plumbing brand toilet containing
the Flushmate System from Lowe's Home Improvement
store in Florissant, Missouri. The
Flushmate System in Mr. Iver's toilet is subject to the Recall. Mr. Iver requested and received
the "repair kit" from Sloan. After Mr. Iver installed the repair kit his toilet stopped working. As
a result of the failure of the Flushmate System, Mr. Iver has a non-functioning toilet in his
home.
17.
Plaintiff and putative class representative
Neal alderman
("alderman")
is a
citizen and resident of Connecticut. Mr. alderman owns a home in Moodus, Middlesex County,
Connecticut. In December 2000, Mr. alderman built his home and installed a toilet equipped
with a Flushmate System. The Flushmate System in Mr. alderman's
Recall.
toilet is subject to the
Mr. alderman requested a repair kit from Sloan and had to have a plumber install it.
Since installation of the repair kit Mr. alderman's
toilet has been leaking. Mr. alderman
reported this problem to Sloan and was told by a representative that this leaking was "nominal"
and a normal problem.
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Defendant
18.
Sloan Valve Company, a Delaware corporation,
Illinois, with its headquarters
IS
a citizen of the State of
and principal place of business at 10500 Seymour Avenue,
Franklin Park, Cook County, Illinois 60131.
19.
Sloan is engaged in the business of manufacturing,
supplying, and distributing
toilet flushing systems, including the defective Flushmate System.
20.
According to its website, "[s]ince 1906, Sloan has been the world's
manufacturer of water-efficient
leading
solutions that are built to perform, guaranteed to last, and are
designed with the hopes of promoting a healthy environment through water conservation. Each
of our divisions specializes in helping us offer reliable products that will ultimately improve the
quality oflife of the customers and communities we serve."
21.
Sloan lists Flushmate as a division of Sloan.
22.
Flushmate is not a separate entity from Sloan; it is only a brand of Sloan.
JURISDICTION AND VENUE
23.
This Court has jurisdiction over this action pursuant to 28 US.C. § 1332(d)(2) as
the amount in controversy exceeds $5,000,000, exclusive of interest and costs, and at least one
member of the proposed classes is a citizen of a state different from Sloan.
24.
This Court has personal jurisdiction over Defendant pursuant to 28 US.C. § 1391
because Defendant maintains its headquarters and principal place of business in this District.
25.
Venue is also proper in this District pursuant to 28 US.C. § 1391 because:
a.
Defendant Sloan Valve Company maintains its principal place of business
b.
At least one of the named plaintiffs is a citizen of Illinois and resides in
c.
A substantial part of the events, misrepresentations,
in this district;
this district;
grvmg nse to Plaintiffs'
and/or omissions
claims as alleged herein occurred in this District at Defendant's
headquarters and principal place of business; and
d.
Defendant markets and sells the Flushmate System in this district.
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FACTUAL ALLEGATIONS
26.
Sloan designs,
sells, and distributes
various toilet and plumbing
products
including the defective Flushmate System.
27.
During the period from October 1997 to February 2008 (the "Class Period"),
Sloan manufactured the defective Flushmate System.
Sloan sold over 2.3 million Flushmate
Systems throughout the United States, including those purchased by Plaintiffs and members of
the proposed classes.
28.
The Flushmate
System was installed in toilets manufactured
by American
Standard, Crane, Eljer, Gerber, Kohler, Mansfield and St. Thomas.
29.
Additionally, the Flushmate System was available for purchase independently
from distributors, plumbing contractors, and major retailers such as Lowe's and the Home
Depot.
30.
In its uniform marketing materials, Sloan made affirmative representations that
the Flushmate System was "designed with continuous improvements to be the most reliable,
consistent, and trouble-free
system available," with "No Leaks," "No Callbacks," and was
"Easier to maintain. "
31.
However, the Flushmate System contains defective vessels that are prone to weld
separation and leaks. The leaks cause the Flushmate System to burst at or near the vessel weld
seam, releasing stored pressure. In the worst cases, the pressure then lifts the toilet lid and
shatters the tank, posing impact or laceration hazards to consumers, water release, and property
damage.
32.
This defect is common to all Flushmate Systems that are the subject of this
Complaint by virtue of their defective design and manufacture, and is not caused by installation
practices.
33.
Plaintiffs and members of the classes own toilets with Flushmate Systems that
have already failed prematurely or are substantially certain to fail, and thus have suffered or are
reasonably certain to suffer actual injury or damages.
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34.
Plaintiffs and members of the classes have paid monies or will pay monies to
repair or replace the Flushmate System and/or repair property damage caused by the failure of
35.
The Flushmate System is inherently defective and is substantially certain to fail
within the express or implied warranty and/or the useful life of the plumbing system.
Omissions Relating to the Flushmate System
36.
Sloan
made
material
onussions
relating
to the
design,
reliability,
and
performance of the Flushmate System.
37.
Sloan failed to inform Plaintiffs and putative class members about the probability
that the Flushmate System may develop leaks, that the welded joints may separate in the vessels,
and that the subsequent release of pressure could cause the toilet tank to shatter.
38.
Sloan failed to inform Plaintiffs and putative class members that the "repair kit"
offered as part of the Recall does nothing to alleviate the ongoing problem of leaking.
39.
Sloan was aware of the defects in the Flushmate System before July 2000, but
nonetheless continued to sell the Flushmate System without disclosing those defects or risks.
40.
On July 24, 2000, Defendant
"FLUSHMATE®
issued a Product
II VESSEL WELD LEAK OR SEPARATION."
Advisory
notice entitled:
In that Product Advisory
notice, Sloan explained that "a very small number" of Flushmate Systems developed leaks or
separation of the joints in the vessels, which are accompanied by the rapid release of the
pressurized water contained in the vessel. This Product Advisory Notice completely omitted the
consequences
of this defect and failed to warn consumers
about the danger of potential
explosion of the toilet tank.
41.
On or about June 31, 2003, Sloan issued a revised Product Advisory notice,
entitled: "FLUSHMATE® II and III VESSEL WELD LEAK OR SEPARATION," to include
models manufactured between January 1998 and April 1998, May 4, 1998, and May 13, 1998.
Again, even following this update, the Product Advisory Notice completely
consequences
of this defect and failed to warn consumers
explosion of the toilet tank.
6
omitted the
about the danger of potential
42.
Sloan continued to mmmuze the severity and extent of the defects of the
Flushmate System until the United States Consumer Product Safety Commission ("CPSC")
issued a Recall Notice ("CPSC Recall Notice") on June 21, 2012, affecting Flushmate Systems
manufactured between October 14, 1997 and February 29,2008.
43.
According
to
the
CPSC
Recall
Notice,
"[t]he
recalled
systems
were
manufactured from October 1997 to February 2008. The units are rectangular, black, two-piece
vessels made of injection molded plastic. The date code/serial number is 16 characters long and
is located on the label on the top of the Flushmate III. The first six numerals of the serial
number are the date code. The date code range for this recall begins with 101497 (October 14,
1997) and continues through 022908 (February 29,2008)."
44.
According to the CPSC, Sloan received 304 reports of the product bursting,
resulting in property damage and 14 impact or laceration injuries. These injuries were not
included in the July 24, 2000 Product Advisory Notice or the June 31, 2003 update.
45.
Sloan knew or should have known of the serious risks posed by the defective
Flushmate Systems.
46.
Despite receiving repeated notice of the defect and its risks, from the over 300
reports, Sloan did nothing to inform Plaintiffs or members of the proposed classes of the
dangerous and defective nature of the Flushmate System or correct the problem prior to the
Recall.
47.
Sloan had a duty to disclose these facts to Plaintiffs and members of the proposed
classes in light of the affirmative representations made by Sloan concerning the function and
supposed benefits of the Flushmate System.
48.
By failing to disclose these known defects and risks, Sloan's
statements
regarding the Flushmate System were, at a minimum, misleading.
49.
Sloan was solely and uniquely in possession of the facts relating to the defects
and risks that it did not disclose. Further, Sloan knew that such facts were not available to
Plaintiffs and members of the proposed classes, and knew that such facts would be highly
material to any prospective purchaser of the Flushmate System.
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50.
Pursuant to the CPSC Recall Notice, consumers are directed to "determine if
their Flushmate III serial number is included in the recall and to request a free repair kit."
Inadequate "Repair Kit"
51.
The "repair kit" offered by Sloan is wholly inadequate to remedy the defects in
52.
The Recall advises owners to immediately turn off the water supply to toilets that
contain the Flushmate System, thereby making it impossible for Plaintiffs and members of the
classes to use any toilet with the Flushmate System installed.
53.
The repair kit does nothing to repair or correct the design defects.
54.
The repair kit does nothing to correct the potential leaking problem.
55.
The repair kit improperly alters the appearance and operation of the toilet in an
effort to compensate for the defects.
56.
Further, toilets are rendered inoperable until the proper repair or replacement is
completed.
57.
The repair kit consists of two components.
58.
The first component of the repair kit is a U-shaped metal strap described as the
"U-band."
59.
According to Sloan, the purpose of the U-band is to restrain the movement of the
two halves of the plastic pressure vessel upon failure, to reduce the likelihood of explosion of
the ceramic toilet tank.
60.
Even if the repair kit worked for this purported purpose of preventing explosion,
it does nothing to correct the problem of leaking and reduced functionality.
61.
The U-band is inadequately designed and fails to prevent, correct, or repair the
62.
The second component of the repair kit is an "external regulator." The purported
defect.
purpose of the external regulator is to reduce the water pressure supplied to the Flushmate
System pressure vessel and thereby reduce the likelihood of explosion or leaks.
8
63.
The impact of reduced pressure directly compromises the flushing function of the
Flushmate System and is an inadequate repair.
64.
The external regulator also alters the external appearance of the toilet.
65.
The notice issued in cooperation with the CPSC is insufficient. Owners of the
Flushmate System have not received notice and the risk of personal injury and property damage
remains unresolved.
66.
The poorly designed repair kit and refusal of Sloan to pay the labor costs
associated with the repair, combined with an inadequate notice program, undermines
the
purpose and impact of the Recall.
67.
Defendant made material omissions relating to the design, reliability, function,
safety, and performance of the Flushmate System.
Statutes of Limitation
68.
Flushmate
Discovery
Rule. Prior to failing and leaking, the defective
nature of the
System is not perceptible to Plaintiffs and members of the proposed
classes.
Plaintiffs did not become aware that they had suffered loss of money, property, and damages
caused by the defective Flushmate System until their respective toilets failed.
69.
Fraudulent Concealment Tolling. Any applicable statutes of limitation have been
tolled by Defendant's knowing and active concealment of the facts as alleged herein. Plaintiffs
and the members of the proposed classes have been kept ignorant by Defendant
of vital
information essential to the pursuit of these claims, without any fault or lack of diligence on
their part. Plaintiffs and members of the proposed classes could not reasonably have discovered
the problems associated with the Flushmate System on their own. Defendant's
Advisory stated that only a small number ofFlushmate
initial Product
Systems manufactured in 1997 and 1998
had issues. However, the current product Recall affects Flushmate
Systems manufactured
between October 14, 1997, and February 29,2008.
70.
Estoppel. Defendant is estopped from relying on any statutes of limitation in
defense of this action. Defendant was under a continuous duty to disclose to Plaintiffs and
members of the proposed classes the true character, quality and nature of the Flushmate System.
9
Defendant
knowingly
and affirmatively
misrepresented
character, quality, and nature of the Flushmate
and actively
concealed
the true
System. Plaintiffs reasonably relied upon
Defendant's knowing and affirmative representations and/or active concealment
CLASS ACTION ALLEGATIONS
71.
Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23(b)(2)
and (b)(3), on behalf of themselves and all others similarly situated.
72.
The Classes which Plaintiffs seek to represent in this action is defined as follows:
Illinois Class: "All persons and
otherwise acquired a Series 503
or a toilet containing a Series
System, other than for resale,
2008."
entities in the State of Illinois who purchased or
Flushmate® III Pressure-Assist Flushing System,
503 Flushmate® III Pressure- Assist Flushing
manufactured from October 1997 to February
Missouri Class: "All persons and entities in the state of Missouri who purchased
or otherwise acquired a Series 503 Flushmate® III Pressure-Assist Flushing
System, or a toilet containing a Series 503 Flushmate® III Pressure- Assist
Flushing System, other than for resale, manufactured from October 1997 to
February 2008."
Connecticut Class: "All persons and entrties in the state of Connecticut who
purchased or otherwise acquired a Series 503 Flushmate® III Pressure-Assist
Flushing System, or a toilet containing a Series 503 Flushmate® III PressureAssist Flushing System, other than for resale, manufactured from October 1997 to
February 2008."
73.
The following persons shall be excluded from the Classes: (1) Sloan, its
subsidiaries and affiliates, and their officers, directors or employees; (2) all persons who make a
timely election to be excluded from the proposed Class; and (3) the judge(s) to whom this case
is assigned and any immediate family members thereof.
74.
Plaintiffs
reserve the right to modify or amend the class definitions,
as
appropriate.
75.
Certification
of Plaintiffs'
claims as a class action
IS
appropriate
because
Plaintiffs can prove the elements of their claims on a class-wide basis using the same evidence
as would be used to prove those elements in individual actions, and because this case meets the
requirements of Fed. R. Civ. P. 23.
10
76.
Numerosity. The members of the classes are so numerous that individual joinder
of all the members is impracticable. Based on the information provided as part of the Recall,
Plaintiffs are informed and believe that there were approximately 2,330,600 Flushmate Systems
sold in the United States.
77.
Commonality and Predominance. This action involves common questions of law
and fact which predominate over any questions affecting individual class members, including,
but not limited to, the following:
a.
Whether Defendant violated the Illinois Deceptive Trade Practices Act,
815 ILCS 51011, et seq., by, among other things, engaging in unfair, unlawful, or fraudulent
practices;
b.
Whether Defendant violated the Missouri Deceptive Trade Practices Act,
Rev. Mo. Stat. § 407.020, et seq., by, among other things, engaging in unfair, unlawful, or
fraudulent practices;
c.
Whether Defendant violated the Connecticut Unfair Trade Practices Act,
Conn. Gen. Stat. § 42-110a, et seq., by, among other things, engaging in unfair, unlawful, or
fraudulent practices;
d.
Whether Defendant was negligent;
e.
Whether
f.
Whether Defendant's
Defendant's
conduct
breached
the
implied
warranty
of
merchantability;
conduct breached express warranties made by its
representations of regarding the Flushmate System;
g.
Whether Defendant has been unjustly enriched as a result of the conduct
complained of herein;
h.
Whether Plaintiffs and members of the proposed classes are entitled to
equitable relief, including but not limited to restitution;
1.
Whether the Flushmate System was of merchantable quality;
J.
Whether the Flushmate System is subject to premature failure, and not
suitable for use as a long-term plumbing product;
11
k.
Whether Defendant had a duty to Plaintiffs and members of the proposed
classes to disclose the true nature of the Flushmate System;
1.
Whether Defendant falsely represented that their Flushmate System was
of a certain standard, quality, and grade, when in fact, they were not;
m.
Whether Defendant concealed material information regarding the true
characteristics and defective nature of its products;
n.
Whether
Defendant's
false representations
and concealment
of the
defective nature of the Flushmate System was knowing, intentional, reckless, and/or malicious;
and
o.
Whether Plaintiffs and members of the proposed classes are entitled to
actual, statutory, punitive, exemplary, and/or other forms of damages, and/or other monetary
relief and, if so, in what amount.
78.
Typicality. The named Plaintiffs' claims are typical of the claims of the classes
because, among other things, Plaintiffs, like all members of the proposed classes, own toilets
containing the Flushmate System, and were damaged as a result. The universally defective
nature of the Flushmate System renders each classes' member's claims, legal theories, and
injuries common and typical.
79.
Adequacy
of Representation
under
Rule 23(a)( 4). Plaintiffs
are adequate
representatives of the proposed classes because their interests do not conflict with the interests of
the proposed classes. Plaintiffs have retained counsel competent and experienced in complex
class actions involving building products and product liability, and intend to prosecute this action
vigorously. As such, the interests of the proposed classes will be fairly and adequately protected
by Plaintiffs and their counsel.
80.
Superiority under Rule 23(b)(3). A class action is superior to all other available
means for the fair and efficient adjudication of this controversy in that:
a.
The prosecution
of separate
actions by individual
members
of the
proposed classes would create a foreseeable risk of inconsistent or varying adjudications which
would establish incompatible results and standards for Defendant;
12
b.
Adjudications with respect to individual members of the classes would, as
a practical matter, be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to protect their own
separate interests;
c.
Class action treatment
avoids the waste and duplication
inherent
III
potentially thousands of individual actions, and conserves the resources of the courts; and
d.
The claims of the individual members of the classes are relatively small
compared to the burden and expense that would be required to individually litigate their claims
against Defendant, so it would be impracticable for the members of the classes to individually
seek redress for Defendant's wrongful conduct. Even if the members of the classes could afford
individual litigation, the court system could not. Individualized litigation creates a potential for
inconsistent or contradictory judgments, and increases the delay and expense to all parties and
the court system. By contrast, the class action device presents far fewer management difficulties,
and provides the benefits of a single adjudication,
economies of scale, and comprehensive
supervision by a single court.
81.
The Prerequisites of Rule 23(b)(2) are Satisfied. The prerequisites to maintaining
a class action for injunctive and equitable relief pursuant to Fed. R. Civ. P. 23(b)(2) exist as
Defendant has acted or has refused to act on grounds generally applicable to the classes, thereby
making appropriate final injunctive and equitable relief with respect to the classes as a whole.
The prosecution of separate actions by members of the classes would create a risk of establishing
incompatible standards of conduct for the Defendant.
Further, Defendant's actions are generally
applicable to the classes as a whole, and plaintiffs seek, inter alia, equitable remedies with
respect to the classes as a whole. Defendant's systematic policies and practices make declaratory
relief with respect to the classes as a whole appropriate.
13
CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
(Violation of the Illinois Uniform Deceptive Trade Practices Act)
(Illinois Plaintiffs, Individually, and on Behalf of the Illinois Class)
82.
The Illinois Plaintiffs incorporate by reference each allegation set forth in the
preceding paragraphs.
83.
At all times relevant hereto, there was in full force and effect the Uniform
Deceptive Trade Practices Act ("UDTPA"), 815 ILCS 51011, et seq.
84.
Pursuant to 815 ILCS 510, et seq., "[a] person engages in a deceptive trade
practice when, in the course of his or her business, vocation, or occupation, the person.
represents that goods or services are of a particular standard, quality, or grade[.]"
85.
Defendant's actions, as alleged herein, constitute deceptive, unfair, fraudulent,
and unlawful practices committed in violation of 815 ILCS 510, et seq.
86.
All of the conduct and misrepresentations
alleged herein occurred in the course
of Defendant's business and was part of a pattern or generalized course of conduct.
87.
Defendant's deceptive, unfair, fraudulent, and unlawful conduct alleged herein
was specifically designed to and did induce the Illinois Plaintiffs and members of the proposed
Illinois Class to purchase toilets with the Flushmate System for use and installation in their
homes and other structures.
88.
As a direct and proximate cause of Defendant's unfair or deceptive acts or
practices, the Illinois Plaintiffs and members of the proposed Illinois Class have suffered injuryin-fact, lost money, and lost property, in that they own or owned properties in which the
defective Flushmate Systems are or were installed. The Flushmate System will prematurely fail,
which will require (or has already required) the Illinois Plaintiffs and members of the proposed
Illinois Class to incur costs to repair and/or replace their toilets and/or Flushmate System.
Further, Plaintiffs and members of the proposed class lose the use of their toilets until
repair/replacement
of same due to the hazardous conditions created by the defective Flushmate
System requiring the water supply to the toilet be immediately turned off.
14
SECOND CAUSE OF ACTION
(Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act)
(Plaintiffs Dimov and Dimova, Individually, and on Behalf of the Illinois Class)
89.
The Illinois Plaintiffs incorporate by reference each allegation set forth in the
preceding paragraphs
90.
At all times relevant hereto, there was in full force and effect the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 50511, et seq. ("the Act").
91.
Plaintiffs
and other class members
are consumers
within the meaning
of
Consumer Fraud Acts given that Defendant's business activities involve trade or commerce, are
addressed to the market generally and otherwise implicate consumer protection concerns.
92.
Section 2 of the Act renders unlawful the "use or employment of any deception
[including 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. . . in the
conduct of any trade or commerce."
93.
Once the defect's risk became apparent to the Defendant, consumers, such as the
Plaintiffs, were entitled to full disclosure because: (a) a significant risk of leakage would be a
material fact in a consumer's decision-making process, and (b) without Defendant's disclosure,
consumers would not know of the substantial risks the defect poses.
94.
Specifically, at all times relevant, Defendant continuously and consistently failed
to disclose to consumers, like the Illinois Plaintiffs, of the consequences
of the Flushmate
System's defect and about the danger of potential explosion of the toilet tank due to the defect.
95.
Defendant intended that the Illinois Plaintiffs and the Illinois Class would rely on
the deception by purchasing the Flushmate System, unaware of the material defects described
above. This conduct is consumer fraud within the meaning of the various consumer protection
statutes.
15
96.
Plaintiffs and the class have been damaged by Defendant's
deception because:
(a) they purchased the Flushmate Systems which had a high probability of failure, and (b)
Defendant has failed or refused to pay for necessary and complete repairs to the systems.
97.
If Defendant had disclosed the above facts to the Illinois Plaintiffs, they could
have (and would have) prevented economic injury by either negotiating additional warranty
coverage, negotiating a lower price to reflect the risk, or simply would have avoided the risk
altogether by not purchasing the Flushmate system.
98.
Defendant has committed deceptive acts or practices within the meaning of the
Act by engaging in the acts and practices alleged herein, including, but not limited to, its failure
to disclose the material defects.
99.
Defendant's
conduct alleged herein is furthermore unfair insofar as it offends
public policy, is so oppressive that consumers have little alternative but to submit, and causes
consumers substantial injury.
100.
As a direct and proximate result of the unfair acts or practices of Defendant
alleged herein, the Illinois Plaintiffs and other members of the proposed Illinois Class were
damaged.
THIRD CAUSE OF ACTION
(Violation of the Missouri Unfair and Deceptive Trade Practices Act)
(PlaintiffIver, Individually, and on Behalf of the Missouri Class)
101.
Plaintiff Iver incorporates by reference each allegation set forth in the preceding
paragraphs.
102.
or
Pursuant to Mo. Rev. Stat. § 407.020,
or OmlSSJIOn
or
or commerce
16
ISunlawful.
103.
Defendant's actions as described herein constitute unfair and deceptive acts and
were conducted in the course of Defendant's trade.
104.
As a result of Defendant's unfair and deceptive acts, Plaintiff Iver and members
of the proposed Missouri Class suffered damages and spent monies to repair damages to their
homes and property.
FOURTH CAUSE OF ACTION
(Violation of the Connecticut Unfair Trade Practices Act)
(Plaintiff Olderman, Individually, and on Behalf of the Connecticut Class)
105.
Plaintiff Olderman incorporates by reference each allegation set forth in the
preceding paragraphs.
106.
Pursuant to Conn. Gen. Stat. § 42-110b, no person
or
acts or
or
commerce.
107.
Defendant's actions as described herein constitute unfair and deceptive acts and
were conducted in the course of Defendant's trade.
108.
As a result of Defendant's
unfair and deceptive acts, Plaintiff Olderman and
members of the proposed Connecticut Class suffered damages and spent monies to repair
damages to their homes and property.
FIFTH CAUSE OF ACTION
(Breach of Express Warranty)
(Plaintiffs, Individually, and on Behalf of all Classes)
109.
Plaintiffs incorporate by reference each allegation set forth in the preceding
paragraphs.
110.
In order to promote and induce the purchase of its products, Defendant expressly
warranted that the Flushmate System was merchantable and fit for the ordinary purpose for
which it was sold.
Ill.
Defendant's
express warranties were made for the benefit of Plaintiffs and
members of the proposed classes, the owners of the properties where the toilets containing the
Flushmate System are installed.
17
112.
These express warranties
formed part of the basis of the bargain between
Defendant and Plaintiffs and members of the proposed classes.
113.
Defendant breached its express warranties by selling the Flushmate System when
it was: (1) not of merchantable quality; and (2) unfit for its intended use as it is reasonably
certain to fail before the useful life of the system.
114.
breaches of its express warranties, Plaintiffs and
members of the proposed classes have been damaged in an amount to be proven at trial.
115.
Defendant received timely notice of the breach of warranty alleged herein by
reason of its own knowledge of the defective Flushmate System and its Recall.
116.
By reason of the foregoing, Plaintiffs, on behalf of themselves and all others
similarly situated, demand judgment against Defendant for damages, including compensatory,
incidental and consequential damages (excepting damages for personal injuries) for themselves
and each member of the proposed classes.
SIXTH CAUSE OF ACTION
(Breach ofImplied Warranty)
117.
paragraphs.
118.
Defendant breached the implied warranty of merchantability by manufacturing
and selling the Flushmate System because, at the time of sale, it was (1) not fit for use as a
flushing system in toilets installed in homes and other structures, (2) not of a merchantable
quality, and (3) unfit for its intended use in that the vessel used in the pressure-assisted flushing
system is defective and dangerous in that it can leak/burst at or near the vessel weld seam
releasing stored pressure, causing the toilet tank lid to lift off and shatter the tank, which can
result in serious physical injuries and property damage.
119.
Defendant received timely notice of the breach of warranty alleged herein by
reason of its own knowledge of the defective Flushmate System and its Recall.
18
120.
As a direct and proximate result of Defendant's breach of the implied warranty,
Plaintiffs and the members of the proposed classes have been damaged in an amount to be
proven at trial.
SEVENTH CAUSE OF ACTION
(Fraudulent Concealment/Intentional Misrepresentation)
121.
paragraphs.
122.
Defendant knowingly concealed and intentionally failed to disclose to Plaintiffs
and members of the proposed classes the facts that the Flushmate System was defective, highly
susceptible to leaks and weld separation, and presented a risk of dangerous catastrophic failure.
Defendant represented that its Flushmate System was reliable, consistent, and trouble-free;
included claims of "No Leaks." This information was material to Plaintiffs and members of the
proposed classes and was concealed by Defendant to induce Plaintiffs and the members of the
proposed classes to purchase the Flushmate
System and/or toilets containing a Flushmate
System. A safety consideration as fundamental as whether the tank in a toilet might leak or
explode was material to Plaintiffs and members of the proposed classes.
123.
At all relevant times, Defendant had exclusive knowledge of material facts not
known to Plaintiffs and members of the proposed class, actively concealed these facts from
Plaintiffs and members of the proposed classes, and made representations
concerning the
reliability of the Flushmate Systems which were materially misleading in light of the facts it
suppressed.
124.
Defendant intended for Plaintiffs and members of the proposed classes to rely on
its omissions regarding the quality of their Flushmate System. Defendant knew that had they
disclosed the true facts, as alleged herein, Plaintiffs and members of the proposed classes would
not have purchased toilets containing the Flushmate System.
125.
Plaintiffs and members of the proposed classes were unaware that the Flushmate
System was defective and susceptible to catastrophic failure. Had Plaintiffs and members of the
19
proposed classes been aware of Defendant's
omissions concerning the Flushmate System, they
would not have purchased toilets containing the defective Flushmate System.
126.
As a proximate result of Defendant's material omissions of fact as alleged herein,
Plaintiffs and members of the proposed classes have been damaged in an amount to be proven at
trial.
EIGHTH CAUSE OF ACTION
(Negligent Misrepresentation)
127.
paragraphs.
128.
Defendant represented to Plaintiffs and members of the proposed classes that the
Flushmate System was merchantable and fit for their intended use. Defendant represented to
Plaintiffs and members of the proposed classes that the Flushmate
System was "reliable,
consistent, and trouble-free" (including claiming "No Leaks"), and was merchantable and fit for
its intended use.
129.
These representations were not true because the Flushmate System is defective
and susceptible to leaks and weld separation.
130.
Defendant had no reasonable grounds for believing these representations to be
131.
Defendant intended for Plaintiffs and members of the proposed classes to rely on
true.
its representations regarding the quality of its Flushmate System.
132.
Plaintiffs and members of the proposed classes have been harmed in that they
have toilets with Flushmate Systems that have already leaked and failed, or will leak and fail in
the future, causing damage to their property.
133.
As a proximate result of Defendant's negligent misrepresentations concerning the
quality of the toilets containing the Flushmate System, and the Flushmate System itself, as
alleged herein, Plaintiffs and members of the proposed classes have been damaged in an amount
to be proven at trial.
20
NINTH CAUSE OF ACTION
(Unjust Enrichment)
134.
paragraphs, and plead this claim for relief in the alternative to their warranty claims.
135.
To the detriment of Plaintiffs and members of the proposed classes, Defendant
has been unjustly enriched as a result of the unlawful and/or wrongful collection of, inter alia,
payments for defective Flushmate pressure-assisted flushing systems.
136.
It would be inequitable and unjust for Defendant to retain any profits, benefits, or
other money it obtained from its wrongful conduct.
137.
Accordingly, Plaintiffs and members of the proposed classes seek full restitution
of Defendant's enrichment, benefits, and ill-gotten gains acquired as a result of Defendant's
unfair, fraudulent, and unlawful conduct alleged herein.
TENTH CAUSE OF ACTION
(Negligence)
138.
paragraphs.
139.
Defendant owed a duty to Plaintiffs and members of the proposed classes to
design, manufacture, produce, test, inspect, market, distribute, and sell its product with
reasonable care and in a workmanlike fashion, and had a duty to protect Plaintiffs and members
of the proposed classes from foreseeable and unreasonable risk of harm.
140.
Defendant breached that duty and acted negligently by, among other things,
designing, marketing, and selling a plumbing system it knew or should have known would leak
and/or explode.
141.
Defendant further breached that duty and acted negligently by, among other
things, failing to recall, retrofit, or replace the Flushmate System once it learned of its defective
and dangerous nature.
142.
conduct, Plaintiffs and members of the proposed
classes have suffered damages and spent money to repair damages to their homes and property.
21
ELEVENTH CAUSE OF ACTION
(Declaratory Relief Pursuant to 28 U.S.C. § 2201)
143.
paragraphs.
144.
There is an actual controversy between Defendant and the Plaintiffs concerning
the existence of a material defect in the Flushmate System.
145.
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."
146.
Accordingly, Plaintiffs and the classes seek a declaration that the Flushmate
Systems contain a common defect in their design and manufacture that will cause the Flushmate
Systems to function improperly during the expected useful life of the product.
TWELFTH CAUSE OF ACTION
(Injunctive Relief)
147.
paragraphs.
148.
Defendant
designed,
manufactured,
produced,
tested,
inspected,
marketed,
distributed, and sold the Flushmate System which contain material and dangerous defects as
described herein.
149.
Based upon information and belief, Defendant continues to design, manufacture,
produce, test, inspect, market, distribute, and sell the Flushmate System containing material and
dangerous defects as described herein.
150.
The defects described herein are an imminent threat to the safety of the Plaintiffs
and members of the proposed classes.
151.
Based upon information and belief, Defendant has taken no corrective action
concerning the defects described herein that would adequately inform consumers of their
22
dangerous nature and high probability of causing damage, nor implemented a product recall that
would address the defective nature of the Flushmate System.
152.
Plaintiffs and the members of the proposed classes have suffered actual damage
or injury or are in immediate risk of suffering actual damage or injury due to the Flushmate
System's defects.
Defendant should be required to take corrective action to prevent further
injuries, including: (a) Issuing a nation-wide
recall of the defective systems; (b) Issuing
warnings and/or notices to consumers concerning the defects, describing the defects in detail so
that consumers
may make informed
decisions;
and (c) Immediately
discontinuing
the
manufacture, production, marketing, distribution, and sale of the defective systems described
herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, pray
that the Court certify the Class, as defined above, enter judgment against Defendant and in favor
of Plaintiffs and members of the proposed classes, and award the following relief:
A.
An Order certifying this action as a Class Action (and certifying any appropriate
subclasses), appointing Plaintiffs as Class Representatives and their counsel of record jointly as
Class Counsel;
B.
An Order for restitutionary relief consisting of:
1.
An accounting against the Defendant for all sums collected from for the
purchase of defective Flushmate Systems;
2.
The imposition of a constructive trust for all such sums; and
3.
Restitution and/or disgorgement of revenues, earnings, profits,
compensation, and benefits which were received by Defendant as a result of such unlawful
business acts or practices, according to proof;
C.
A Declaration that the Flushmate Systems are defective;
D.
An Order awarding injunctive relief by requiring Defendant to issue corrective
actions including notification, recall, inspection, and, as necessary, repair and replacement of the
Flushmate Systems;
23
E.
An Order awarding payment to the classes of all damages associated with the
replacement of the defective products, in an amount to be proven at trial;
F.
An Order awarding actual damages, punitive damages, attorneys' fees and costs
as provided by law or as would be reasonable from any recovery, and such other relief as
provided by the law;
G.
An Order awarding pre-judgment and post-judgment interest on such monetary
H.
All other relief to which Plaintiffs and members of the proposed classes may be
relief;
entitled at law or in equity and which the Court deems appropriate.
JURY TRIAL DEMAND
Plaintiff hereby demands a trial by jury of all issues so triable.
Dated this December 5,2012
By: lsi Kenneth A. Wexler
Kenneth A. Wexler
kaw@wexlerwallace.com
Amy E. Keller
aek@wexlerwallace.com
WEXLER WALLACE LLP
55 West Monroe, Suite 3300
Chicago, IL 60603
312.346.2222 Telephone
312.346.0022 Facsimile
Firm No. 49718
William M. Audet
waudet@audetlaw.com
Jonas P. Mann
jmann@audetlaw.com
AUDET & PARTNERS, LLP
221 Main Street, Suite 1460
San Francisco CA 94105
415.982.1776 Telephone
415.576.1776 Facsimile
Attorneys for Plaintiffs
and the Proposed Class
24

flushmate complaint - Wexler Wallace LLP

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