SECOND AMENDED COMPLAINT NATURE OF THE · 2010. 6. 29. · Case 2:09-cv-01567-JFC Document 49 Filed 06/29/10 Page 4 of 27 12. Defendant, according to its February 18,2009 lO-K, "sell

Case 2:09-cv-01567-JFC Document 49 Filed 06/29/10 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSL YV ANIA

PATRICIA WRIGHT and KEVIN WEST, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

OWENS CORNING,

Defendant.

) ) ) ) ) ) ) ) ) ) )

Civil Action No. 09-01567

Judge Joy Flowers Conti

SECOND AMENDED COMPLAINT

NATURE OF THE CASE

1. This is a putative class action on behalf of Patricia Wright and Kevin West

(the "Plaintiffs") and a class of all others similarly situated against Owens Coming

("Defendant"), the manufacturer of a variety of roofing shingles used for commercial,

industrial, institutional and residential roofing applications.

2. Defendant's shingles are plagued by design flaws that result in cracking,

curling and degranulation. Yet Defendant continues to sell them to the public and

continues to make false representations and warranties, despite the fact that the shingles

are defective and will eventually fail, causing property damage, and costing consumers

substantial removal and replacement costs.

3. This class action seeks damages, punitive damages, injunctive relief, costs,

attorneys' fees, and other relief as a result of Defendant's willful, wanton, reckless,

and/or grossly negligent conduct in causing consumers' homes to be in a dangerous,

defective, unsafe, and unfit condition for habitation.

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JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1332(a)(2)(A) because the Plaintiffs and Defendant are of diverse citizenship

and the matter in controversy exceeds seventy-five thousand dollars ($75,000.00)

exclusive of interest and costs. This Court has subject matter jurisdiction pursuant to 28

U.S.C. § 1332(d)(2), because the Plaintiffs and over two-thirds of the Class Members are

of diverse citizenship from the Defendant; and the aggregate amount in controversy

exceeds five million dollars ($5,000,000.00) exclusive of interest and costs.

5. Venue is proper in this Court pursuant to 28 U.S.C. §1391 because a

substantial part of the events or omissions giving rise to Plaintiffs' claims occurred, a

substantial part of the property that is the subject of this action is situated, and Defendant

is subject to personal jurisdiction, in this District.

6. As a result of Defendant's designing, testing, developing, manufacturing,

marketing, distributing, promoting and/or selling, either directly or indirectly through

third parties or related entities, of shingles to purchasers throughout Pennsylvania, the

Defendant obtained the benefits of the laws of Pennsylvania and profited from

Pennsylvania commerce.

7. Defendant conducted systematic and continuous business activities in and

throughout the State of Pennsylvania by manufacturing shingle products in the State of

Pennsylvania, and otherwise intentionally availed themselves of the markets ofthe State

of Pennsylvania through the promotion and marketing of its business.

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PARTIES

8. Plaintiff Patricia Wright ("Wright") is a resident of Pennsylvania with an

address located in Brownsville, Pennsylvania. Wright purchased and installed on her

house defective shingles from Owens Coming in the winter of 1998.

9. Plaintiff Kevin West ("West") is a resident of Illinois with an address

located in Williamsfield, Illinois. West purchased defective Owens Coming shingles

from a professional roofer in approximately August of2005; the roofer installed the

shingles on West's house upon delivery.

10. Defendant Owens Coming's principal place of business is located in

Toledo, Ohio. Despite warranties to the contrary, and as set forth in more detail below,

Defendant's shingles are designed, manufactured, advertised, warranted and sold in a

defective manner to scores of putative class members in Pennsylvania and the United

States.

FACTUAL ALLEGATIONS

11. Upon information and belief, Defendant is, and at all times relevant hereto

was, engaged in the business of designing, developing, manufacturing, distributing,

marketing, selling, and installing a variety of shingles, including but not necessarily

limited to: Berkshire, Woodmoor, Woodcrest, Woodcrest AR, WeatherGuard HP,

Duration, Duration Premium Cool, Duration Premium, Duration Non AR, Oakridge,

Oakridge Non AR, Supreme, Supreme AR, Supreme Metric, Classic, Classic AR, Classic

Metric.

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12. Defendant, according to its February 18,2009 lO-K, "sell shingles and

roofing accessories through home centers, lumberyards, retailers, distributors and

contractors in the United States."

13. Defendant's 10-K further states that "Owens Coming's Roofing and

Asphalt business is the second largest producer in the United States of asphalt roofing

shingles and is the largest producer of industrial, specialty and roofing asphalts."

14. Defendant warrants its shingles for 20,25,30, or 40 year terms. The

warranties purport to provide reimbursement for some, if not all, of the costs associated

with repairing and/or replacing defective shingles.

15. Customers of Owens Coming make purchasing decisions based in part and

in reliance upon the information presented by the company on its website, marketing

literature, advertisements and warranties.

16. Defendant has knowingly and intentionally concealed, and has failed to

disclose that-notwithstanding statements on its website, brochures, advertisements and

warranties- its shingles routinely deteriorate by cracking, curling and degranulating far

in advance of the expiration of warranty periods. Indeed, Defendant's shingles have

deteriorated and will continue to deteriorate at a rate which clearly demonstrates their

lack of durability and resiliency.

17. Similarly, Defendant has knowingly and intentionally concealed, and has

failed to disclose, that they actually had no intention of providing the services set forth in

their warranties.

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18. Defendant has had notice of the deficiencies described herein and has been

routinely notified by their customers that the shingle products are/were defective and not

functioning as advertised.

19. Not only have the Plaintiffs and Class members suffered damages to the

shingle products they purchased from Owens Coming but, as a result of the defective

quality of Defendant's shingle products, Plaintiffs and the Class have suffered damage to

the underlying structures of their homes.

20. Ignoring customer complaints and concerns, Defendant has failed to

implement any changes to its shingle products or warranty procedures to remedy the

defects associated with their products.

21. The following represents a small sampling of internet po stings by Owens

Coming products purchasers and installers' general frustrations with the defective

shingles:

* I just a filed a complaint with the P A State Attorney General re Owen Shingles. We bought the house when it was 3 years old with owens 20 year warranty shingle. They are defective and owens will pay claims IF YOU ARE THE ORIGNAL OWNER OF THE HOUSE!!! if, like us, you bought the house from another owner, they won't pay. They do not deny the product is faulty or that the limitations of the warranty was not printed on the shingles with the big print number of the years warranted.

* Owens Coming. I would rather install Charmin if you want to install toilet paper for shingles.

* I AM PISSED!!! I paid top dollar for a new roof, and paid extra for these new Duration shingles. I put up with construction only to have to do it all over again due to LEAKING SHINGLES! GREAT NEW DESIGN

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OWENS CORNING ... In my OpInIOn anyone who uses these shingles needs to see his doctor first.

* We had a new roof put on in Nov 1996 using 40 yr Owens Coming Oakridge Shadow Architectural shingles. Over the last 5 years we have had many shingles split in half and fall off the roof. We had the roofer come back and replace several a few years back. They are continuing to split and fall off. We are now wondering if our shingles could be defective.

* Owens Coming shingles that were defective when they were installed on my house. My house is 13 years old and I am the original owner. I was told by a roofing contractor that the shingles were defective. (Oakridge II Shingles) I filed a complaint with Owens Coming and the sent me a check for $2000.00, claiming that 51 % of my warranty was used up. The money was for replacement of 46 squares of shingles. I have gotten estimates for as much as $15000.00 to install a new roof. Is there a way Owens Coming could be held responsible for more of the replacement cost?

* Do any of you know of a recall for ownes coming ar shingles? I have been having lots of problems with my '40yr' roof that is actually only 17yrs old. I have shingles splitting and falling off.

* Owens Coming produced an asphalt shingle labeled as Oakridge Shadow 40, but discontinued it in 2001 (yr?). In 2001, OC advertised a new product, called the Oakridge PRO 40. My home was roofed with the old shingle in 1995, but it started to de granulate within 5 yrs.

* Thanks for your response. We built to homes two years apart using owens coming 40 yr shingles on both. Owens Coming wants to prorate the labor to reapply the new shingles. This doesn't seem fair when there shingles were defective not my labor. Any way to get them to pay full cost of labor?

* Owens Coming 30 year shingles - home developed a leak due to 7 year old defective shingles - Owens says 30 year warranty doesn't

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transfer when a home is sold - so there is no warranty on the 7 year old shingles

* I recently bought a 7 year old house with Owens Coming 30 year shingles. We developed a leak: & every Roofer that come out (6 of them) said the shinlges were defective. When I contacted Owens Coming they told me that the 30 year warranty does not transfer when the house is sold.

* Few weeks ago we had a water leak: from the ceiling, it turned out to be due to defective window however, we found out that all the roof shingles are defected and need to be replaced. The house is about 11 years old, the shingles have a 30yrs warranty however, the company that manufactured the shingles (Owens- Coming) refuses to honor the warranty because we are not the original owners of the house claiming that the warranty is non transferable.

* I said to stay away from Owens Coming shingles.

* I don't care what name they put on them they are still Owens Coming and have long been the laughing stock of the industry. 'BBB reliability reports, Owens Coming 27 complaints in 36 months.

* In the past, an excessive sealant holding power did not allow for proper expansion and contraction of the thinner 3-tab shingles and created cracking of the shingles.

* We found crackes in the shingles and crackes between the shingles that were not there when applied, some of the shingles did not stick down properly. WE filed a report with Owens Coming we sent pictures and a sample of the shingles we removed from the roof and replaced with new shingles. Owens Coming tells us that the shingles are not defective that there are other problems that caused the shingles to crack. I have talked to them and our contractor has talked to them but they will not payoff on the warrenty and replace the shingles or pay for the water damage to our house inside.

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Inadequate Testing of Corning Shingles

22. Upon infonnation and belief, Defendant did not test the shingles in their

anticipated environments before selling those shingles to the public.

23. Upon infonnation and belief, Defendant conducted inadequate testing and

quality control on the shingles and failed to test for things that they knew or should have

known would lead to premature failure of the shingles.

24. Upon infonnation and belief, Defendant failed to investigate or test

whether various conditions would lead to premature failure of the shingles.

Owens Corning Marketing Omissions

25. Defendant advertised that the shingles were safe, reliable and worry-free

despite failing to test and determine the reliability of its product when used in the real

world.

26. The Defendant represented on its website that:

Every shingle we make combines consistent quality with longlasting beauty and maximum protection. Perfonnance is at the heart of every Owens Coming roofing product.

Whoever you are, wherever you live, whatever your style, Owens Coming has a shingle line that is right for you. Every Owens Coming asphalt shingle delivers beauty and perfonnance combined with a very strong warranty.

27. Defendant marketing literature, regarding asphalt Oakridge Shingles, in

part, states:

Home sweet home. It's the place where you want to feel the most comfortable. Safe. Protected. But no matter how much you love your house, it seems the work is never completely done. And if purchasing a new roof is on your to-do list, it may seem like a

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daunting task. But you don't have to worry about it anymore. We're here to help. You can feel confident about choosing our roofing products-Owens Coming has been a recognized leader in the building materials industry for over 65 years. We're known for making homes more comfortable, beautiful and durable.

This is your chance to choose a roof that not only has outstanding performance, but also has exceptional beauty. One that can transform the look of your entire home. So for years to come, you'll feel great every time you pull in the driveway. Safe. Protected. Home.

28. Among other false and inaccurate representations regarding its shingle

products, Defendant marketed its Oakridge Shadow Shingle as "offering premium

protection and enduring value ... [c ]onstructed with the most weathering grade asphalt

available and a tough Fiberglass mat."

29. Defendant and its authorized agents and distributors made each of the

above described assertions, statements, representations and warranties with the intent and

purpose of inducing suppliers, builders, and consumers to purchase and install the

shingles in residential and commercial structures in the State of Pennsylvania and

elsewhere. However, Defendant knew that these misrepresentations were not true and

that the shingles were defective and would not function as promised.

30. Defendant also made numerous material omissions in its literature and

uniformly withheld important information relating to the design, reliability and

performance of the shingles.

31. Had Defendant not withheld and omitted important information about the

design, reliability and performance of the shingles, Plaintiffs and the members of the

Class would not have purchased and/or installed them in their properties.

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Plaintiffs' Shingles

32. Plaintiff Wright, through her contractor, had Owens Coming Oakridge

Shadow 40 year shingles installed on her house in 1998. Plaintiff Wright's contractor

purchased the shingles believing them to be a quality product, free of defects.

33. In late 2008 and early 2009, Plaintiff Wright learned that her shingles

were deteriorating in numerous locations and that water was leaking into the interior of

the house. In March 2009, a roofing specialist confirmed that the Plaintiff Wright's

shingles had failed and would need to be replaced to prevent further damage.

34. Plaintiff West, through a roofing professional, had Owens Coming

Oakridge 30 year shingles installed on his house in 2005. Plaintiff West's roofing

professional purchased the shingles believing them to be a quality product, free of

defects.

35. In approximately Spring, 2009, West noticed that the Owens Coming

shingles on his house were cracking because water was leaking into his house. West

made a warranty claim to Owens Coming, but the company denied the claim and stated

that the cracking was not caused by a manufacturing defect. West was forced to replace

many of the defective shingles, but large portions of his roof still contain defective

Owens Coming shingles.

36. Like Plaintiffs Wright and West, other members of the putative Class also

purchased defective shingle products and warranties from Owens Coming who, upon

information and belief, did not repair or replace the shingle products in accordance with

the terms of its warranties.

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37. Plaintiffs and members of the Class have suffered damages as a result of

Defendant's deceptive practices, including but not limited to the fact that their roofs have

been damaged and the value of their homes have been diminished. While Plaintiffs and

the Class are forced to repair and/or replace Defendant's defective shingle products, they

were not reimbursed for the costs associated with this exercise, in contravention for the

terms of Defendant's warranties.

CLASS ACTION ALLEGATIONS

38. Plaintiffs seek to bring this case as a class action, under Federal Rule of

Civil Procedure 23, on behalf of herself and all others similarly situated. The proposed

Class is defined as:

All individuals and entities that have owned, own, or acquired homes, residences, buildings or other structures physically located in the United States, on which Owens Coming shingles are or have been installed since 1986. Owens Coming shingles are defined to include without limitation all shingles manufactured or distributed by Defendant and include, without limitation, the following brand names: Berkshire, Woodmoor, Woodcrest, Woodcrest AR, WeatherGuard HP, Duration, Duration Premium Cool, Duration Premium, Duration Non AR, Oakridge, Oakridge Shadow, Oakridge Non AR, Supreme, Supreme AR, Supreme Metric, Classic, Classic AR, Classic Metric. Excluded from the Class are Defendants, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants, and Defendant's legal representatives, assigns and successors. Also excluded are the judge to whom this case is assigned and any member of the judge's immediate family.

39. Plaintiffs reserve the right to re-define the Class prior to class certification.

40. The number of persons who are members ofthe Class described above are

so numerous that joinder of all members in one action is impracticable.

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41. Questions of law and fact that are common to the entire Class predominate

over individual questions because the actions of Owens Coming complained of herein

were generally applicable to the entire Class. These legal and factual questions include,

but are not limited to:

a) whether the shingle products are defective;

b) whether Defendant knew or should have known of the defective nature of the

shingle products;

c) whether Defendant owed a duty to Plaintiffs and the Class to exercise

reasonable care in the design, manufacture and marketing of the shingle

products;

d) whether Defendant breached this duty;

e) whether the shingle products failed to perform in accordance with the

reasonable expectations of ordinary consumers;

f) whether the shingle products failed to perform for the time warranted by

Defendant;

g) whether the warranties are unconscionable and unenforceable; and

h) whether Plaintiffs and the Class suffered damages as a result of Defendant's

conduct.

42. All questions as to the representations and publicly disseminated

advertisements and statements attributable to Defendant at issue herein are similarly

common. A determination of Owens Coming's knowledge regarding the misleading and

deceptive nature of the statements made in its website, brochures, advertisements and

warranties and its breaches of contract will be applicable to all members of the Class.

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Further, whether Owens Coming violated any applicable state laws and pursued the

course of conduct complained of herein, whether Owens Coming acted intentionally or

recklessly in engaging in the conduct described herein, and the extent of the appropriate

measure of injunctive and declaratory relief, damages and restitutionary relief are

common questions to the Class.

43. Plaintiffs' claims are typical of the members of the Class because

Plaintiffs purchased defective shingles from Defendant and then installed them in his

home. The shingles malfunctioned before the expiration of the applicable warranty

period. Plaintiffs, like the Class, has suffered damages associated with the use of

Defendant's defective products.

44. Plaintiffs will fully and adequately represent and protect the interests of

the Class because of the common injuries and interests of the members of the Class and

the singular conduct of Owens Coming that is or was applicable to all members of the

Class. Plaintiffs have retained counsel who is competent and experienced in the

prosecution of class action litigation. Plaintiffs have no interests that are contrary to or in

conflict with those of the Class they seek to represent.

45. A class action is superior to all other available methods for fair and

efficient adjudication of this controversy. Plaintiffs know of no difficulty to be

encountered in the management of this action that would preclude its maintenance as a

class action.

46. The prosecution of separate actions by individual members of the Class

would create a risk of inconsistent and varying adjudications concerning the subject of

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this action, which adjudications could establish incompatible standards of conduct for

Owens Coming under the laws alleged herein.

47. The claims of the Class may be certified under Rule 23(b)(1), (b)(2)

and/or (b)(3). The members of the Class also seek declaratory and injunctive relief but

also seek sizeable monetary relief equal to the warranties to which the members of the

Class were deprived.

ESTOPPEL FROM PLEADING AND TOLLING OF APPLICABLE STATUTES OF LIMITATION

48. Because the defects in the shingles are latent and not detectable until

manifestation, Plaintiffs and the Class members were not reasonably able to discover

their shingles were defective until after installation, despite their exercise of due

diligence.

49. Owens Coming knew that the shingles were defective prior to the time of

sale, and concealed that material information from Plaintiffs and all consumers.

50. As such, any applicable statutes of limitation have been tolled by Owens

Coming's concealment of material facts and Owens Coming is estopped from relying on

any such statutes of limitation.

above.

FIRST CLAIM FOR RELIEF (Pennsylvania Unfair Trade Practices and Consumer Protection Law)

(Applies to Pennsylvania Plaintiffs)

51. Plaintiffs re-alleges and incorporates by reference each of the paragraphs

52. Plaintiffs and the Class members residing in Pennsylvania purchased

Defendant's shingle products

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primarily for personal, family, and/or household purposes.

53. Pennsylvania's Unfair Trade Practices and Consumer Protection Law

("UTPCPL") makes unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce unlawful. 73 Pa. Cons. Stat. §201-3.

54. Owens Coming's affirmative misrepresentations within its advertisements

of its shingle products and its failure to notify purchasers of the defects of its shingle

products and of the true nature in which it implements its warranty process took place

within the Commonwealth of Pennsylvania and constitute violations of sections 201-

2(4)(v), (vii), (ix), and (xxi) of the UTPCPL.

55. The UTPCPL is applicable to the claims of the Class members in

Pennsylvania because the conduct of Defendant, which constitutes a violation of the

statute, occurred within the Commonwealth of Pennsylvania.

56. Defendant intended that Plaintiff Wright and the Class members residing

in Pennsylvania would rely on the false information or deceptive practice so that they

would purchase Owens Coming's shingle products and increase the consumption of

Owens Coming's products.

57. Had Defendant disclosed this material information regarding its shingle

products to Plaintiff Wright and the other members ofthe Class residing in Pennsylvania,

they would not have purchased the shingles.

58. As a result of the nature of Defendant's deceptive conduct, Plaintiff

Wright and the Class members residing in Pennsylvania suffered pecuniary loss as set

forth in greater detail above. A finding that Defendant's conduct violated the law will

15


also operate as a finding that each and every member of the Class residing in

Pennsylvania suffered pecuniary loss.

59. The conduct of the Defendant described herein was knowing, willful and

intentional, and constitutes the employment of fraud, false pretense, false promise,

misrepresentation, misleading statement or deceptive practice upon Plaintiff Wright and

the Class members residing in Pennsylvania within the meaning of the UTPCPL.

60. By falsely representing that Owens Coming's shingle products were free

of defect, despite knowing that this was untrue, Defendant acted maliciously toward

Plaintiff Wright and members of the Class residing in Pennsylvania, and also acted with

intentional or, at a minimum, reckless disregard oftheir rights.

61. Defendant's conduct described in this Complaint was not isolated or

unique to Plaintiff Wright but was widespread, affecting thousands of consumers, and

was a regular and intended business practice of Defendant, which was instituted and

implemented with a view towards unfairly profiting at the expense of Owens Coming's

consumers.

62. Owens Coming had special knowledge of material facts to which Plaintiff

Wright and the Class members residing in Pennsylvania did not have access, and,

therefore, had a duty to disclose these facts to the other party so as to prevent its

statements from being misleading.

63. Pursuant to section 201-9.2 of the UTPCPL, and as a result of Defendant's

bad faith conduct, Plaintiff Wright and the Class members residing in Pennsylvania are

entitled to monetary damages.

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above.

SECOND CLAIM FOR RELIEF (Breach of Contract)


65. During the Class Period, Plaintiffs and Class members, upon purchasing

Owens Corning shingles, entered into a contracts and warranty agreements with

Defendant.

66. Owens Corning has uniformly breached its contracts and warranty

agreements with Plaintiffs and the members of the Class by failing to supply shingle

products that were of merchantable quality and fit for the use for which they were

intended and by failing to repair andlor replace defects in the shingles.

67. As a proximate result of the aforementioned wrongful conduct and breach

committed by Owens Corning, Plaintiffs and the Class members have suffered and will

continue to suffer damages and economic loss in an amount to be proven at trial.

Plaintiffs and Class members are entitled to damages and injunctive and declaratory relief

as claimed below.

above.

THIRD CLAIM FOR RELIEF (Breach of Express Warranty)


69. In conjunction with its sale of shingle products, Owens Corning warranted

that it would provide an operational product for a particular warranty period or replace

the defective product without paying for the labor costs involved.

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70. Defendant breached the express warranties because, as set forth in detail

above, they failed to provide customers with a product that would perform the basic

intended and essential functions of shingle products for the specified warranty period.

71. Owens Coming has received notice of the breaches of warranty alleged

herein, by virtue of complaints made by purchasers of its shingle products. Upon

information and belief, Owens Coming has received scores of claims, complaints and

other notices from its consumers advising Owens Coming of the defects in its shingle

products.

72. Defendant has failed to provide Plaintiffs or the Class, as a warranty

replacement, shingle products that conform to the qualities and characteristics that

Defendant has expressly warranted are possessed by Owens Coming shingles.

73. Despite requests to do so, Owens Coming refuses to adequately repair or

replace its shingles in accordance with warranty terms. As a result, Plaintiffs and

members of the Class were forced and continue to be forced to wait for the substantially

certain failure of their shingle products and suffer the accompanying losses of money

associated therewith.

74. Further, the warranties themselves are unconscionable and unenforceable

in that they fail to achieve their specified purpose because they do not provide consumers

with an adequate remedy for the failure of the Owens Coming shingle products. The

warranties do not provide the means for purchasers to repair and replace either the

defective product itself, or structural damages to their homes associated with and caused

by these defects. Applying any warranty limitation to avoid the need to repair the defects

set forth herein would be unconscionable in that, inter alia, the shingle products contain

18


inherent defects that were already existing at the time of purchase and Defendant knew,

or were reckless in not knowing, about the defects, which could not be discovered by

Plaintiffs and the Class at the time of purchase, and purchasers lacked any meaningful

choice with respect to the warranty terms.

75. As a direct and proximate result of Defendant's breach of warranty,

Plaintiffs and the Class have suffered damages in an amount to be determined at trial.

above.

FOURTH CLAIM FOR RELIEF (Breach of Implied Warranty of Merchantability)


77. An implied warranty of merchantability arises automatically when the

product is a "good" and the seller a merchant is in the business of furnishing the product

to the consumer. 13 Pa. Cons. Stat. §2314. The shingle products at issue here are goods,

pursuant to 13 Pa. Cons. Stat. §2105, and Owens Coming is a merchant in the business of

selling such shingle products to consumers, pursuant to 13 Pa. Cons. Stat. §2104.

Accordingly, all of Owens Coming's shingle products come within the implied warranty

of merchantability.

78. An implied warranty of merchantability provides that the product is of

merchantable quality and fit for its ordinary and intended use, pursuant to 13 Pa. Cons.

Stat. §2314.

79. Owens Coming breached the aforementioned implied warranty of

merchantability because the Owens Coming shingle products were not of merchantable

quality or fit for their ordinary and intended use and because the Owens Coming shingles

19


contained a defect at the time of their sale that resulted in, and continues to result in,

premature deterioration in the form of crumbling, curling, pitting, cracking,

degranulating, when used in a normal, foreseeable and customary way.

80. The defects at issue are latent defects. Plaintiffs and the Class members

could not have known about the shingle products propensity for premature deterioration.

81. As a direct and proximate result of Defendant's breach of the implied

warranty of merchantability, Plaintiffs and the Class members have suffered damages in

the full purchase price of the Owens Coming shingle products they purchased or, in the

alternative, damages in the amounts by which the values of the shingles as warranted

exceed their value in their defective state, or, alternatively, damages in the amounts

necessary to repair the shingles, such amounts to be determined at trial.

above.

FIFTH CLAIM FOR RELIEF (Negligence)


83. Defendant owed a duty to Plaintiffs and members of the class to exercise

reasonable care in the design, manufacture, quality control and marketing of the shingle

products.

84. Defendant breached their duty to Plaintiffs and the Class by designing,

manufacturing, selling, advertising and warranting a defective product to Plaintiffs and

the Class, and by failing to take those steps necessary to repair or otherwise discontinue

selling a defective product to consumers.

85. Defendant was aware, or reasonably should have been aware, that the

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shingle products were defective and did not perform their intended use.

86. When they purchased Owens Coming's shingle products, Plaintiffs and

the Class were not aware of their defective nature.

87. As a direct and proximate cause of the foregoing, Plaintiffs and the Class

have suffered have suffered and will continue to suffer damages and economic loss

described fully above, in an amount to be proven at trial.

88. Plaintiffs and the Class are entitled to damages in an amount to be

determined at trial.

above.

SIXTH CLAIM FOR RELIEF (Strict Products Liability)


90. At all times during the Class period, Owens Coming was a commercial

manufacturer and supplier of the shingle products at issue in this case.

91. Owens Coming's shingle products were expected to, and did in fact, reach

consumers without substantial change in the condition in which they were supplied.

92. Owens Coming's shingle products were and are defective, and were and

are unfit for their intended use.

93. The shingle products fail to perform in accordance with the reasonable

expectations of Plaintiffs and the Class and the benefits of the design of the shingles does

not outweigh the risk of their failure.

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94. Defendant haslhad a duty and responsibility to disclose to the consuming

public the foreseeable risks associated with the use of its shingle products. Owens

Coming further haslhad a duty not to put defective products on the market.

95. Defendant breached its duty to Plaintiffs and the Class by failing to

disclose the defects associated with the shingle products, and by allowing the sale and use

of the shingle products when they knew they would not perform as intended.

96. As a result of the foregoing, Plaintiffs and the Class have suffered

damages as previously set forth herein that were directly and proximately caused by the

defective shingle products.

97. Plaintiffs and the proposed Class are entitled to damages in an amount to

be determined at trial.

above.

SEVENTH CLAIM FOR RELIEF (Unjust Enrichment)


99. As the intended and expected result of its conscious wrongdoing,

Defendant has profited and benefited form the purchase of shingle products by Plaintiffs

and the Class.

100. Defendant has voluntarily accepted and retained these profits and benefits,

derived from Plaintiffs and the Class, with full knowledge and awareness that, as a result

of their misconduct, Plaintiffs and the Class were not receiving products of the quality,

nature, fitness or value that had been represented by Defendant, and that Plaintiffs and the

Class, as reasonable consumers, expected.

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101. Defendant has been unjustly enriched by their fraudulent and deceptive

withholding of benefits to Plaintiffs and the Class, at the expense of Plaintiffs and the

class.

102. Plaintiffs and the Class seek the disgorgement and restitution of Owens

Coming's wrongful profits, revenue, and benefits, to the extent and in the amount

deemed appropriate by the court, and such other relief as the Court deems just and proper

to remedy Defendant's unjust enrichment.

EIGHTH CLAIM FOR RELIEF (Fraudulent Misrepresentation, Concealment and Failure to Disclose)


above.

104. During the Class period, Defendant knowingly, fraudulently and actively

misrepresented, omitted and concealed from consumers material facts relating to the

quality of its shingles and its warranty process.

105. Defendant has a duty to disclose to Plaintiffs and the Class members the

actual quality of its shingle products and the true nature of its warranty process.

106. The misrepresentations, omissions and concealments complained of herein

were material and were made on a uniform and market-wide basis. As a direct and

proximate result of these misrepresentations, omissions and concealments, Plaintiffs and

the Class members have been damaged, as alleged herein.

107. Plaintiffs and Class members reasonably and actually relied upon

Defendant's representations, omissions and concealments. Such reliance may also be

imputed, based upon the materiality of Defendant's wrongful conduct.

23


108. Based on such reliance, Plaintiffs and Class members purchased shingle

products from Owens Coming and, as a result, suffered and will continue to suffer

damages and economic loss in an amount to be proven at trial.

109. Had Plaintiffs and the Class been aware of the true nature of

Owens Coming's business practices, they would not have purchased shingle products

from the company.

110. Defendant's acts and misconduct, as alleged herein, constitute oppression,

fraud and/or malice entitling Plaintiffs and the Class to an award of punitive damages to

the extent allowed in an amount appropriate to punish or to set an example of Owens

Coming.

111. Plaintiffs and the Class are entitled to damages and injunctive relief

as claimed below.

above.

NINTH CLAIM FOR RELIEF (Negligent Misrepresentation)


113. During the Class period, Defendants negligently and/or recklessly

misrepresented, omitted and concealed from consumers material facts relating to the

quality of its shingles and its warranty process.

114. Defendant has a duty to disclose to Plaintiffs and the Class members the

actual quality of its shingle products and the true nature of its warranties.

115. The misrepresentations, omissions and concealments complained of herein

24


were negligently or recklessly made to potential customers and the general public on a

uniform and market-wide basis. As a direct and proximate result ofthese

misrepresentations, omissions and concealments, Plaintiffs and the Class members have

been damaged, as alleged herein.

116. Plaintiffs and Class members reasonably and actually relied upon

Defendant's representations, omissions and concealments. Such reliance may also be

imputed, based upon the materiality of Defendant's wrongful conduct.

117. Based on such reliance, Plaintiffs and Class members purchased shingle

products from Owens Coming and, as a result, suffered and will continue to suffer

damages and economic loss in an amount to be proven at trial.

118. Had Plaintiffs and the Class been aware ofthe true nature of

Owens Coming's business practices, they would not have purchased shingle products

from the company.

119. Defendant's acts and misconduct, as alleged herein, constitute oppression,

fraud and/or malice entitling Plaintiffs and Class members to an award of punitive

damages to the extent allowed in an amount appropriate to punish or to set an example of

Owens Coming.

120. Plaintiffs and Class members are entitled to damages and injunctive relief

as claimed below.

TENTH CLAIM FOR RELIEF (Declaratory and Injunctive Relief)


above.

25


122. Plaintiffs and Class members are entitled to declaratory relief establishing

that Defendant engaged in unfair and deceptive practices, that is conduct intentional or

negligent misrepresentation andlor concealment and breaches of contracts with

consumers.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs prays that this case be certified and maintained as a

class action and for judgment to be entered upon Owens Coming as follows:

1. For economic and compensatory damages on behalf of Plaintiffs

and all members of the Class;

2. For restitution;

3. For actual damages sustained or treble damages;

4. For punitive damages, as otherwise applicable;

5. For injunctive and declaratory relief, as claimed herein;

6. F or reasonable attorneys' fees and reimbursement of all costs for

the prosecution of this action; and

7. For such other and further relief as this Court deems just and

appropriate.

JURY TRIAL DEMANDED

Plaintiffs demand a trial by jury on all issues so triable.

Dated: June 21, 2010 lsi Charles J. LaDuca

Charles LaDuca Brendan S. Thompson Cuneo Gilbert & LaDuca, LLP 507 C Street, NE Washington, DC 20002

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Telephone: (202) 789-3960

Michael McShane Audet & Partners, LLP 221 Main Street Suite 1460 San Francisco, CA 94105 Telephone: (415) 568-2555

Robert K. Shelquist Lockridge Grindal Nauen, PLLP Suite 2200 100 Washington Avenue South Minneapolis, MN 55401 Telephone: (612) 339-6900

Clayton D. Halunen Shawn J. Wanta Halunen & Associates 1650 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 605-4098

Charles Schaffer Levin Fishbein & Bennan 510 Walnut Street - Suite 500 Philadelphia, P A 19106-3697 Telephone: (215) 592-1500

James T. Davis Davis & Davis 107 East Main Street Uniontown, PA 15401 Telephone: (724) 437-2799

ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

27

Documents

SECOND AMENDED COMPLAINT NATURE OF THE · 2010. 6. 29. · Case 2:09-cv-01567-JFC Document 49 Filed 06/29/10 Page 4 of 27 12. Defendant, according to its February 18,2009 lO-K, "sell