Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Class action brought against maker of allegedly defective roofing shingles, (Nov 4, 2013)

By Pamela C. Maloney, J.D.

A home owner has filed a class action in a New York federal district court against the manufacturer of cedar roofing shingles, alleging that contrary to the manufacturer’s representations, the shingles were defectively designed and manufactured (McCaffrey v. Maibec Inc., filed October 29, 2013).

The complaint stated negligence and strict products liability claims for defective design and failure to warn, along with claims for breach of express warranty, breach of the implied warranties of merchantability and fitness for a particular purpose, breach of contract, and unjust enrichment. The home owner is seeking certification of a class of similarly situated purchasers in the United States or, in the alternative, a class of similarly situated New York state purchasers.

Background. The home owner alleged that wood shingles made from the Eastern White Cedar tree by Maibec, Inc., were subject to design flaws that resulted in decay, including warping, peeling, cracking, buckling, and curling, causing property damage and costing consumers substantial removal and replacement costs. According to the complaint, Maibec had represented that its shingles would last for 50 years and expressly warranted the shingles for 50 years. However, because the grain orientation on the shingles was more consistent with the lowest quality of shingles on the market and because the grain orientation had a significant impact on the resilience, dimensional stability, and functionality of the shingles, the shingles deteriorated long before the 50-year warranty period expired.

Allegations. In her negligence claim, the home owner alleged that Maibec had a duty to exercise reasonable care in the design, manufacturer, quality control, and marketing of the shingles, and to disclose to the consuming public the foreseeable risks associated with the use of its defective shingles. The complaint further alleged that Maibec had a duty not to put defective products such as the shingles on the market. Similarly, the home owner’s products liability claim stated that the shingles reached consumers without substantial change in the condition in which they were supplied, and that they were defectively designed and/or manufactured and were unfit for their intended use. The complaint also charged that the shingles failed to perform in accordance with the reasonable expectations of the home owner and the class, and that the benefits of the design did not outweigh the risks.

With regard to the breach of express warranty claim, the complaint stated that Maibec failed to provide customers with a product that would perform the basic intended and essential functions of shingles for the specified warranty period. The complaint also stated that customers made purchasing decisions based in part on their reliance on the information presented by Maibec on its website, and in its marketing literature, advertisements, and warranties. However, despite the company’s knowledge and notice of the defects, the complaint alleged that the company routinely failed to honor its warranty when consumers notified the company of the deterioration of the shingles. Specifically, Maibec refused to adequately repair or replace its shingles or to reimburse consumers for replacement costs and other losses associated with the defective shingles.

The breach of implied warranty claims set forth claims that consumers relied upon Maibec’s promises that the materials were of first-class workmanlike quality and were fit for their intended use and purposes and that Maibec knew, or should have known, that the shingles were manufactured with substandard and defective materials.

Class certification. The home owner argued that class certification was appropriate because, inter alia, common issues of law and fact predominated and because the risk of inconsistent and varying adjudications concerning the claims would result if they were adjudicated separately.

Statutes of limitation. The complaint also stated that any applicable statutes of limitation had been tolled by reason of Maibec’s fraudulent concealment of the defects in the shingles.

Damages sought. In addition to seeking certification of a class of similarly situated purchasers in the United States or, in the alternative, a class of similarly situated purchasers in the State of New York only, the complaint sought economic and compensatory damages in the amount actual damages sustained or treble damages, restitution, and punitive damages.

The case number is: 2:13-cv-05963-SJF-WDW.

Attorneys: Melanie H. Muhlstock (Parker & Waichman) for Melissa McCaffrey

Companies: Maibec Inc.

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