Saltzman v. Pella Corporation et alMOTIONN.D. Ill.May 16, 2008UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DR. LEONARD E. SALTZMAN, KENT EUBANK, THOMAS RIVA, and WILLIAM and NANCY EHORN, individually and on behalf of all others similarly situated, Plaintiffs, v. PELLA CORPORATION, an Iowa corporation, and PELLA WINDOWS & DOORS, a Delaware corporation, Defendants. No.: 06 C 4481 The Honorable James B. Zagel Magistrate Judge Martin Ashman PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Plaintiffs hereby move the Court, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, for certification of the following class: All persons who currently own structures with Pella ProLine aluminum clad wood casement windows. 1 Plaintiffs hereby also move the Court, pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, for certification of cohesive multi-state subclasses: Consumer Protection Act Subclass: All persons in Illinois, Florida, California, Michigan, New Jersey, New York, North Carolina, and who own structures with Pella ProLine aluminum clad wood casement windows Unjust Enrichment Subclass Consumer Protection Act Subclass: All persons in Illinois, Iowa, Florida, California, Michigan, New Jersey, New York, North Carolina, Ohion and Texas and who own structures with Pella ProLine aluminum clad wood casement windows 1 The First Amended Complaint alleges defects in the Architect and Designer Series windows along with ProLine windows including ProLine double hung. These additional windows and lines show the same characteristic failures as the ProLine aluminum clad wood casement windows when exposed to the same elements over the same amount of time. ProLine double hung, Architectural and Designer Series aluminum clad wood windows appear to contain the same latent defect as ProLine aluminum clad wood casement windows. Plaintiffs reserve the right to amend the class definition should Phase II discovery warrant. -2- All persons in Illinois, Iowa, Florida, California, Michigan, New Jersey, New York, North Carolina, Ohio and Texas, and who currently own structures with Pella ProLine aluminum clad wood casement windows. 2 Specifically excluded are Pella, any entity in which Pella has a controlling interest and any of its parents, subsidiaries, affiliates and their officers and directors. Also excluded are any members of the Federal judiciary and the members of their immediate families and Plaintiff’s counsel. In support of their motion, Plaintiffs state the following: 1. The Class satisfies all of the statutory prerequisites for class certification. 2. Joinder of all members of the Class is not practical, as it consists of thousands of persons who reside throughout Illinois, Iowa, Florida, California, Michigan, New Jersey, New York, North Carolina, Ohio, Texas and the United States. Rule 23(a)(1). The precise scope of the Class will be ascertained in Phase II discovery. 3. There are common questions of fact and law that predominate over any issues affecting only individual Class members. As set forth more fully in Plaintiffs’ First Amended Class Action Complaint (D.E. 20), the claims of the Class arise from the same design characteristics and manufacturing methods. Rule 23(a)(2). There are questions of law and fact that are common to Plaintiffs and all Class members, including inter alia: (a) Whether Pella aluminum clad windows and doors contain the latent defect alleged herein; (b) Whether the complained of defect caused the damages of Plaintiffs and other members of the Class; (c) Whether the latent defect is a necessary cause of the water leaks and resulting wood rot and damage; 2 Id. -3- (d) Whether Defendants had actual or imputed knowledge of the defect but failed to disclose it to Plaintiffs or the Class; (e) Whether Defendants have a pattern and practice of attributing damages claimed by Plaintiffs and the Class to “faulty installation” or improper maintenance, and not due to the complained of defect; (f) Whether Defendants have a pattern and practice of denying Plaintiffs’ and the Class’ claims as ‘out of warranty’, and not due to the complained of defect; (g) Whether Defendants have acted or refused to act on grounds generally applicable to the Class; (h) Whether Defendants’ conduct violates constitutes consumer protection acts; (i) Whether Defendants were unjustly enriched by their conduct; (j) Whether Plaintiffs and other members of the Class have been damaged, and if so, what is the proper measure of such damages? 4. Plaintiffs will fairly and adequately represent and protect the Class, and have no interests antagonistic to the interests of the Class. Plaintiffs’ claims are typical of the claims of the Class. By proving their claims, Plaintiffs will prove the claims of the Class. Rule 23(a)(3) and Rule23(a)(4). 5. Plaintiffs have retained competent counsel, experienced in the prosecution of class actions. Counsel has prosecuted and will continue to prosecute this action vigorously in the interests of Plaintiff and the Class. Rule 23(g). 6. This class action is superior to other available methods for the fair and efficient adjudication of this controversy, because (a) design characteristics and manufacturing methods predominate, (b) window failure can be confirmed with a simple unbiased inspection, and (c) individual joinder of all members of the Class is impractical, if not impossible. The significant expense and burden required to prove these claims make individual litigation unlikely. -4- WHEREFORE, for all of the foregoing reasons, Plaintiffs respectfully pray for an order certifying the Class described herein, appointing Plaintiffs as the representatives of the Class and counsel as Class counsel, and for such further relief as the Court deems appropriate. DATED: May 16, 2008 Respectfully submitted, CLASS PLAINTIFFS By: s/ George K. Lang One of His Attorneys Paul M. Weiss #6217260 William M. Sweetnam # 6226203 George K. Lang #6211537 FREED & WEISS LLC 111 West Washington Street, Suite 1331 Chicago, Illinois 60602 (312) 220-0000 paul@freedweiss.com bills@freedweiss.com george@freedweiss.com Richard J. Burke Richard J. Burke, LLC 1010 Market Street Suite 650 St. Louis, MO 63101 (314) 621-8647 rich@richardjburke.com Jonathan Shub Scott A. George SEEGER WEISS LLP 1200 Walnut St., 5 th Floor Philadelphia, PA 19107 (215) 735-7582 jshub@seegerweiss.com sgeorge@seegerweiss.com -5- Tod N. Aronovitz Steven R. Jaffe Mark S. Fistos ARONOVITZ JAFFE 150 W. Flagler Street Museum Tower Suite 2700 Miami, FL 33130 (305) 372-2772 ta@aronovitzlaw.com srj@aronovitzlaw.com msf@aronovitzlaw.com Benjamin A. Schwartzman BANDUCCI WOODARD SCHWARTZMAN, PLLC 802 West Bannock Street, Suite 700 Boise, ID 83702 bschwartzman@bwslawgroup.com Attorneys for Plaintiff and Proposed Class -6- CERTIFICATE OF SERVICE The undersigned, an attorney, affirms that he served a copy of the attached pleading pursuant to Fed. R. Civ. P. 5(b)(2)(D) upon: John A. Roberts Douglas L. Prochnow Wildman, Harrold, Allen & Dixon 225 W. Wacker Drive Suite 3000 Chicago, IL 60606-1229 roberts@wildmanharrold.com prochnow@wildmanharrold.com John P. Mandler Angela M.Crandall James A. O’Neal Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402 Fax: 612-766-1600 jmandler@faegre.com acrandall@faegre.com joneal@faegre.com DATED: May 16, 2008 By: s/George K. Lang One of His Attorneys