complaint - watts toilet connector settlement · pdf filewolverine brass, inc., and john does...

SECOND AMENDED COMPLAINT, No. 4:12-cv-01172-YGR

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Joseph J. Tabacco, Jr. (SBN 75484) Todd. A. Seaver (SBN 271067) BERMAN DEVALERIO One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6282 Email: [email protected]

[email protected] Liaison Counsel for the Putative Classes Simon Bahne Paris Patrick Howard Charles J. Kocher SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Telephone: (215) 575-3985 Facsimile: (215) 496-0999 Email: [email protected]

[email protected] [email protected]

Interim Lead Counsel for the Putative Classes (Additional counsel listed on signature page)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION JASON TRABAKOOLAS, SHEILA STETSON, CHRISTIE WHEELER, JACK MOONEY, and KEVEN TURNER individually and on behalf of all others similarly situated, Plaintiffs v. WATTS WATER TECHNOLOGIES, INC.,WATTS REGULATOR CO., WOLVERINE BRASS, INC., AND JOHN DOES 1-100. Defendants.

Case No. 4:12-cv-01172-YGR SECOND AMENDED COMPLAINT CLASS ACTION JURY TRIAL DEMANDED The Honorable Yvonne Gonzalez Rogers

Case4:12-cv-01172-YGR Document130 Filed05/03/13 Page1 of 42

SECOND AMENDED COMPLAINT, No. 4:12-cv-01172-YGR 1

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Plaintiffs Jason Trabakoolas, Sheila Stetson, Christie Wheeler, Jack Mooney and Keven

Turner (hereinafter “Plaintiffs”) by and through their undersigned counsel, individually and on

behalf of all others similarly situated, allege:

NATURE OF THE ACTION

1. This action exposes the latent defects with Defendants’ Flexible Plumbing Toilet

Connectors (“Toilet Connector”). A Toilet Connector connects a water fixture shut-off valve to

the bottom of a toilet. To permit water flow into the toilet tank, a Toilet Connector connects to

the base of the toilet using a plastic coupling nut. These plastic coupling nuts are uniformly

defective in their design and labeling. As a result, the Toilet Connector poses a substantial risk

of failure permitting the unrestricted flow of water into the home causing catastrophic water

damage to property.

2. Defendants Watts Water Technologies, Inc. (“Watts Water”), Watts Regulator

Co. (“Watts Regulator”), , Wolverine Brass, Inc. (“Wolverine Brass”), and John Does 1-100

(collectively, “Defendants”) developed, designed, manufactured, assembled, tested, marketed,

promoted, sold and/or distributed these defective Toilet Connectors to Plaintiffs and the

proposed Classes (defined in paragraphs 93-97 below) throughout the United States.

3. At all times material hereto, Defendants knew, and have known, about these

defects and that the Toilet Connectors were not safe, or even usable, for their intended purposes.

Rather than disclose, warn or replace these defective Toilet Connectors, Defendants knowingly

concealed, suppressed, and omitted these defects, exposing Plaintiffs and the putative Classes to

a substantial risk of significant property damage.

4. With full knowledge of the defects alleged herein, Defendants took to remediate

the defects with a redesigned Toilet Connector. Defendants, however, never notified Plaintiffs

and the members of the Classes that their Toilet Connectors contained latent defects or that a

remediated product was available. Instead, Defendants have left Plaintiffs and the putative

Classes exposed to the risk of catastrophic water damage by the defective product.

5. Plaintiffs and the Classes have suffered, and will continue to suffer, injury-in-fact

and lost money as a direct result of Defendants’ conduct. Each Class Member has either



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expended money to repair property damage caused by the defective Toilet Connector, has paid

for a defective Toilet Connector when they otherwise would not have, or will be caused to

expend money to replace the defective Toilet Connectors once these defects are publicly known.

6. This action seeks to both compensate those who have already suffered damages

caused by the defective plastic coupling and minimize any future damages by publicly disclosing

the existence of the defects and establishing a protocol to remove them from properties.

7. The central issue raised herein—whether Defendants’ Toilet Connectors are

defective—is common to the members of each proposed Class. There is an economy to class

treatment of this central question because its resolution has the potential to eliminate the need for

repeated litigation related to the Toilet Connectors’ alleged defects and the reasons for its

repeated failure.

JURISDICTION

8. This Court has jurisdiction over this litigation pursuant to 28 U.S.C. § 1332(d), as

the matter is brought as a class action under Rule 23 of the Federal Rules of Civil Procedure, and

the sum of the amount in controversy exceeds $5,000,000. The requirement of minimal diversity

is met as the dispute is between citizens of California and at least one Defendant from a different

state. See 28 U.S.C. § 1332(d)(2)(A).

9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because at least one of

the named Plaintiffs resides in this District (Alameda, California) and some of the putative Class

members also reside in this District. The causes of action for the putative Class members also

arose, in part, in California and the Defendants regularly transact business within this District

and California.

10. As a result of the Defendants designing, manufacturing, marketing, distributing,

promoting and/or selling, either directly or indirectly through third parties or related entities, the

defective Toilet Connectors from the State of California and to California residents, the

Defendants obtained the benefits of the laws of California and derived a profit from California

commerce.



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PARTIES

Plaintiffs:

11. Plaintiff Jason Trabakoolas is an adult citizen and resident of the State of

California, who resides in Auburn. In approximately 2008, Plaintiff Trabakoolas installed a

Toilet Connector in his home with a Watts Anderson-Barrows plastic coupling nut. The base of

the plastic coupling is marked with an “AB.” Upon information and belief, Watts Anderson-

Barrows designed, manufactured, and assembled this plastic coupling nut at its facility located at

2800 Watts Avenue, Palmdale, California. The Toilet Connector’s label did not provide any

warnings regarding the possibility of spontaneous failure; did not instruct Plaintiff to replace the

Toilet Connector after a certain period of time; and did not contain any warranty information.

12. Plaintiff Trabakoolas would not have purchased the Toilet Connectors and/or had

them installed and/or otherwise exposed his real and personal property to catastrophic flooding

had Defendants disclosed the propensity for their Toilet Connectors to spontaneously fail.

13. On July 19, 2011, after returning from a weekend vacation, Plaintiff Trabakoolas

arrived home to discover that Defendants’ Toilet Connector failed causing water to flood his

home. The coupling failure caused water to spray with such force, and for such duration, that a

hole was created in the drywall next to the toilet. The baseboards separated from the walls and

the kitchen cabinets were warped from the extensive water damage. As a result of the failure,

and in addition to the damage to his property, Plaintiff suffered both incidental and consequential

damages. Had Plaintiff known that the Toilet Connector in his home was susceptible to

spontaneous failure and had a limited useful life, he would have replaced it to avoid any

damages.

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14. Plaintiff Trabakoolas’ Watts Anderson-Barrows fractured plastic coupling is

pictured below:

15. Plaintiff Sheila Stetson is an adult citizen and resident of the State of California,

who resides in Alameda. In June 2003, Plaintiff Stetson had a Wolverine Brass 12” Stainless

Steel Toilet Connector Line with a Watts Anderson-Barrows plastic coupling installed in her

home. The base of the plastic coupling is marked with an “AB.” Upon information and belief,

Watts Anderson-Barrows designed, manufactured, and assembled this plastic coupling nut at its

facility located at 2800 Watts Avenue, Palmdale, California. The Toilet Connector’s label

included the installation instruction: “HAND TIGHTEN – PLUS ¼ TURN WITH WRENCH.”

The label did not provide any warnings regarding the possibility of spontaneous failure; did not

instruct Plaintiff to replace the Toilet Connector after a certain period of time; and did not

contain any warranty information.

16. Plaintiff Stetson would not have purchased the Toilet Connectors and/or had them

installed and/or otherwise exposed her real and personal property to catastrophic flooding had

Defendants disclosed the propensity for their Toilet Connectors to spontaneously fail.

17. On August 20, 2011, Defendants’ Toilet Connector failed causing water to flood

Plaintiff Stetson’s home. The extensive water damage to Plaintiff Stetson’s home caused by the

fractured coupling required the replacement of approximately thirty feet of drywall in the two

rooms adjacent to the bathroom, together with the replacement of flooring in four other rooms.



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As a result of the failure, and in addition to the damage to her property, Plaintiff suffered both

incidental and consequential damages. Had Plaintiff known that the Toilet Connector in her

home was susceptible to spontaneous failure and had a limited useful life, she would have

replaced it to avoid any damages.

18. Plaintiff Stetson’s Watts Anderson-Barrows fractured plastic coupling is pictured

below:

19. Plaintiffs Christie Wheeler and Jack Mooney are adult citizens and residents of

the State of Oklahoma, who reside as husband and wife in Sand Springs. In approximately 2009,

Plaintiff Mooney purchased a Watts Toilet Connector from a local Home Depot and self-

installed it in their home. The Toilet Connector’s label included the installation instruction:

“HAND TIGHTEN – PLUS ¼ TURN WITH WRENCH.” The Toilet Connector’s label did not

provide any warnings regarding the possibility of spontaneous failure; did not instruct Plaintiffs

to replace the Toilet Connector after a certain period of time; and did not contain any warranty

information.

20. Plaintiff Mooney would not have purchased the Toilet Connector and/or installed

it and/or otherwise exposed their real and personal property to catastrophic flooding had


21. On June 8, 2012, after a full-day of work, Plaintiff Wheeler arrived home to

discover that Defendants’ Toilet Connector failed causing water to flood their home. The

coupling failure caused water to spray with such force, and for such duration, that the ceiling

above their bathroom caved-in. The insulation in their attic needed to be removed and their



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bedroom furniture as well as the furniture in the adjacent room was destroyed. Plaintiffs

Mooney and Wheeler were displaced from their home and have resided in a hotel since the

failure. In addition to the damage to their property, Plaintiffs have suffered both incidental and

consequential damages. Had Plaintiffs known that the Toilet Connector in their home was

susceptible to spontaneous failure and had a limited useful life, they would have replaced it to

avoid any damages.

22. Plaintiff Wheeler and Mooney’s Watts Anderson-Barrows fractured plastic

coupling is pictured below:

23. Plaintiff Keven Turner is an adult citizens and resident of the State of Maryland,

who resides in La Plata. In approximately 2006, Plaintiff Turner purchased a Watts Toilet

Connector from a Lowes Home Improvement store in Waldorf, MD, which he later had installed

in his home. The Toilet Connector’s label included the installation instruction: “HAND

TIGHTEN – PLUS ¼ TURN WITH WRENCH.” The Toilet Connector’s label did not provide

any warnings regarding the possibility of spontaneous failure; did not instruct Plaintiff to replace

the Toilet Connector after a certain period of time; and did not contain any warranty information.

24. Plaintiff Turner would not have purchased the Toilet Connector and/or installed it

and/or otherwise exposed his real and personal property to flooding had Defendants disclosed the

propensity for their Toilet Connectors to spontaneously fail.

25. On January 26, 2013, Plaintiff Turner was alerted to running water in his

basement by a water alarm. He immediately ran to his basement to discover the plastic coupling



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nut affixed to the Watts’ Toilet Connector had fractured causing water to run unabated. He

turned the shut-off valve into the off position and cleaned-up the flooded water. Mr. Turner

purchased a new toilet connector to replace the Watts connector that failed.

26. Plaintiff Turner’s Watts Anderson-Barrows fractured plastic coupling is pictured

below:

Defendants:

27. Defendant Watts Water is incorporated in the State of Delaware with its principal

place of business located at 815 Chestnut Street, North Andover, Massachusetts. Watts Regulator

is a wholly owned subsidiary of Watts Water. At all relevant times, Defendants Watts Water

and Watts Regulator (collectively “Watts”) designed, manufactured, assembled, labeled,

marketed, distributed, and sold the defective Toilet Connectors throughout the United States.

28. Defendant Watts Regulator is located at 815 Chestnut Street, North Andover,

Massachusetts. At all relevant times, Watts designed, manufactured, assembled, labeled,

marketed, distributed, and sold the defective Toilet Connectors throughout the United States.

29. Watts acquired Anderson-Barrows Metals Corporation (“Watts Anderson

Barrows”) in 1995, and ultimately merged Watts Anderson-Barrows into Watts Regulator as a

wholly-owned subsidiary organized under California law. Watts Anderson-Barrows designed,

manufactured, assembled, labeled, marketed, distributed, and sold the defective Toilet

Connectors from its headquarters in Palmdale, California. Watts distributed and sold the

defective Toilet Connectors throughout the United States.



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30. Watts also distributed and sold the defective Toilet Connectors through other

companies it acquired or controlled, such as: Savard Plumbing Company Brand (“Savard”),

acquired by Watts in 2005; Jameco Industries, Inc., acquired by Watts in 1995; and the Calflex

Brand, acquired by Watts in 2006.

31. The defective Toilet Connectors designed by Watts Anderson Barrows were also

manufactured by Watts Plumbing Technologies (Taizhou) Co., Ltd. f/k/a Taizhou Shida

Plumbing Manufacturing Co., Ltd. (“Watts Taizhou”). Watts Taizhou is a Chinese Corporation

with its principal place of business in Zhejiang Province, China and is a wholly owned subsidiary

of Watts Regulator. Watts Taizhou also manufactured the defective Toilet Connector designed

by Watts Anderson Barrows in California since as early as 2002, and began to import their Toilet

Connectors with plastic couplings from China into the United States.

32. Defendant Wolverine Brass is incorporated and existing under the laws of the

State of South Carolina with its principal place of business located at 2951 E. Highway 501,

Conway, South Carolina. At all times material hereto, Wolverine Brass sold and distributed

Toilet Connectors with defective coupling nuts manufactured by Watts Anderson-Barrows.

33. Defendant John Does 1-100 are those Defendants, only known to Defendant

Watts Water, who sold and distributed Toilet Connectors with the defective coupling nuts that

were designed, manufactured, assembled, labeled, and tested by Defendants.

FACTUAL ALLEGATIONS

34. The Defendants designed, manufactured, assembled, tested, labeled and offered

for distribution and/or sale defective Toilet Connectors with the specific intention and purpose

that these defective Toilet Connectors be installed by builders, plumbers, and consumers alike in

homes, commercial properties, and other dwellings throughout the State of California and the

United States. In so doing, Defendants represented that the Toilet Connectors were safe, of

merchantable quality, and fit for their intended and reasonably foreseeable uses.

35. As detailed below, however, Defendants knowingly failed to publicly disclose

that their Toilet Connectors were defective, unsafe and posed a substantial risk of failure

resulting in catastrophic water damage to property.



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36. A Toilet Connector as designed, manufactured, assembled, tested, labeled,

marketed, distributed and/or sold by Defendants connects a water fixture shut-off valve to a

toilet. Prior to the introduction of these Toilet Connectors, the connection between a water shut-

off valve and a toilet had required a hard pipe connection. A section of rigid metal tubing would

be cut to the appropriate length with metal coupling assemblies on both ends of the tubing to

connect the property’s water shut-off valve to the toilet.

37. Toilet Connectors eliminated the need for the customized cut necessary to fasten

rigid metal tubing between the shut-off valve and toilet. Toilet Connectors were manufactured in

a variety of lengths (12” – 20”) and made available for sale, at large, to builders, plumbers, and

consumers through home do-it-yourself centers such as Home Depot, ACE Hardware, or Lowes

retailing anywhere from $3 to $7.

38. Initially, when first introduced to the market, the coupling assemblies on both

ends of the Toilet Connector were made of metal. The metal couplings connected to both the

water shut-off valve and the toilet. These metal nuts were not susceptible to fracture.

39. Due to the cost associated with the materials for, and manufacture of, the metal

nut, however, sometime in the late 1990s, early 2000s, Defendants replaced the toilet attachment

end with a cheaper plastic coupling nut.

40. Defendants’ plastic coupling nuts were originally manufactured in California. In

2004, however, Defendants began to move their production facilities to China and import the

Toilet Connectors with plastic couplings into the United States.

41. In a March 2004 press release, Watts’ CEO touted the acquisition of the Chinese

Taizhou manufacturing plant as providing Watts a “low cost solution for manufacturing…hose

connectors [that would] improve [Watts’] ability to service the North American home

improvement retail market.”



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42. A Chinese manufactured standard 20” Watts Toilet Connector with a plastic

coupling nut for connection to the toilet and metal nut for connection to the water shut-off valve

(model: LBLK SPCT20-614CP / UPC code: 4864305200)1 is pictured below:

43. The instruction for installation on this Watts Toilet Connector’s label is “Hand

tighten + ¼ turn.” The label does not contain any warnings about over tightening or stressing the

plastic coupling nut; does not warn against the use of a hand tool or provide specific instruction

on how the installer is to accomplish the additional ¼ turn of the plastic coupling absent the use

of a tool; does not advise about the nut’s propensity to fracture; and does not contain reference to

a limited warranty or information related to the Toilet Connector’s useful life.

44. Almost immediately after Defendants introduced the plastic coupling nut, and at

least by 2003, Defendants faced mounting property damage claims related to the spontaneous

failure of the Toilet Connector. Repeatedly, the Toilet Connector’s plastic coupling would suffer

a circumferential fracture at its base—just as with the named Plaintiffs’ coupling nuts depicted in

the pictures above—allowing the unrestricted flow of water into their homes causing flood and

water damage.

45. These repeated, spontaneous circumferential fractures were the direct result of

Defendants’ defective design and labeling of the Toilet Connector. Indeed, the Toilet

Connector’s plastic coupling nut failed to adhere to the most basic design standards in the

plastics industry.

1 The Toilet Connector pictured was purchased at The Home Depot in Fairless Hills, Pennsylvania on February 6, 2012 for $6.97, plus tax.



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46. When using plastics to manufacture and design parts, the plastics industry

recognizes that a proper design strategy will include, at minimum: (a) a concern for safety and

performance; (b) appropriate material selection and a mold design optimized for the chosen

material to achieve the functional design goal; (c) maximum functionality; and (d) optimum

material usage.

47. Defendants failed to adhere to these minimum industry requirements in designing,

testing and labeling the Toilet Connector because the plastic coupling nut is defective in at least

the following respects: (a) the material choice of a low-grade plastic that is susceptible to failure

due to stress concentrations resident in the design; (b) the radius of the plastic nut’s base and

thread root is inadequate; (c) the angle of the sidewall at the intersection with the base of the nut

is too sharp and when affixed to the toilet’s base during routine installation increases the

likelihood of fracture; (d) the combination of wall thickness, sharp thread root design and

material of the coupling nut is inadequate, such that normal assembly torque can cause the nut to

“craze”2 which can concentrate local stresses, leading to total failure; (e) the design fails to

compensate for the inclination of an installer to tighten the plastic coupling nut to avoid leaking;

and (f) the Toilet Connectors’ packaging and label fails to provide the installer with adequate

instruction for proper and safe installation, warnings against over-stressing the nut, effects of

over-stressing, and information on the Toilet Connector’s useful life and warranty details.

Material Selection / Notch Sensitivity

48. Defendants selected a low-grade actel for the coupling’s material, which is a

notch sensitive polymer prone to failure due to stress concentration.

49. Defendants’ design failed to account for the notch sensitivity of the plastic. Notch

sensitivity is commonly understood to mean the extent to which the sensitivity of a material to

fracture is increased by the presence of an inhomogeneity such as a notch, a sudden change in

section, a crack, scratch or void within the wall section.

50. Each plastic coupling has threading cut into its sidewall that allows the nut to

2 Craze or crazing refers to a series of tiny, hairline cracks in the surface of the plastic, which weakens plastic.



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affix to the toilet’s base. At the coupling nut’s base, the threaded sidewall transitions to the nut’s

base. The threading, however, abruptly ends at the transition point from the nut’s base to

sidewall creating a notch.

51. This notch, created by the threads terminating abruptly at the base of the coupling

nut, causes high local stresses at the transition point that can initiate crazing within the plastic

that ultimately leads to fracturing.

52. Indeed, the plastic industry has warned against such abrupt transition points

stating that “a thread should not be ended abruptly at the base of the part so as to form a sharp

notch, as this may contribute to increased stress concentration.” Ticona, A business of Celanese

AG, “Designing with Celcon polyacetal copolymer” (2002).

53. This design defect, which extends the thread all the way to the bottom of the

coupling nut, also concentrates stress at the lowest thread inside the nut. As a result, the

coupling nut’s wall thickness cannot withstand the stress associated with its routine installation,

ultimately causing a fracture.

Improper Thread Root, Corner Radius and Wall Thickness

54. Additionally, as widely recognized by the plastic industry, when designing with

plastic, sharp corners are to be avoided. Sharp corners are the number one cause of plastic part

failure because they produce localized stress or stress concentration. Instead, when molding

plastics, corners should be rounded to reduce stress.

55. As early as 1988, GE Plastics in a published design guide warned manufacturers



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that, “the presence of sharp corners is perhaps the greatest single cause of part failure.

Minimizing sharp corners reduces stress concentration and results in parts with greater structural

strength. Because [plastic] resins are notch sensitive materials, fillets and radii should be

included at all internal corners to reduce the effect of stress concentration.” GE Plastics,

VALOX Resin Design Guide (June 1988).

56. Defendants’ plastic coupling design disregarded this common industry

knowledge, and instead of a generous radius or fillet at the coupling’s base, Defendants used a

sharp corner that concentrated all stress at the coupling’s base, as shown below:

57. The defect associated with the sharp corner and improper radius is exacerbated by

the coupling’s inadequate wall thickness.

58. Despite extensive instruction to the contrary from the plastics industry, and its

knowledge that thousands of coupling nut failures were being reported each year, Defendants

continued to manufacture the coupling nut with threads that ended abruptly and placed a high

stress concentration on the coupling’s base. Defendants also continued to manufacture the

coupling nut with a sharp cornered transition point, and without a generous fillet or radius. This

defective design caused the coupling nut to fracture in near uniform fashion resulting in

catastrophic property damage.

59. These defectively designed Toilet Connectors remain in the homes of millions of

consumers throughout the United States and will ultimately fail, just as Plaintiffs’ already have,

resulting in unrestricted water flow into their homes causing damage to property.

Interior sharp corner produced by sidewall and base transition leaving high localized stress.



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Inadequate Labeling, Warnings & Unconscionable Warranty

60. Defendants had a duty to not only adequately design the plastic coupling to

withstand the foreseeable pressure and torque during installation, but also to provide detailed

instructions for installation, together with warnings against over-tightening and the possibility of

failure.

61. Initially, when Defendants introduced the plastic coupling nut, the Toilet

Connector’s label contained only the installation instruction: “HAND TIGHTEN – PLUS

¼ TURN WITH WRENCH.” The label on Plaintiffs Stetson, Wheeler, Mooney and Turner’s

Toilet Connector instructs the installer to use a wrench during installation:

62. After thousands of failures, Defendants recognized that the use of a wrench

caused significant crazing in the plastic leading to a fracture and failure. Defendants changed the

Toilet Connector’s label to state only: “HAND TIGHTEN + ¼ TURN” seemingly eliminating

the use of the wrench as part of the installation process. However, the instruction to add a quarter

turn after the coupling has been hand tightened is both vague and ambiguous. In other words, it

is unclear how Defendants anticipated the installer would accomplish the additional quarter turn

beyond hand tightening without a wrench or other hand tool.

63. The instruction on the Toilet Connector’s label “+ ¼ TURN” is also in direct

contradiction with the phrase “HAND TIGHT ONLY” embossed into the bottom of the coupling

nut. Not only does the phrase “HAND TIGHT ONLY” on the coupling’s bottom create

conflicting instructions, but (as pictured below) it appears in the same opaque color as the nut

itself, which renders it almost indistinguishable from the coupling and virtually impossible for



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the installer to detect or decipher.

64. Moreover, the use of “HAND TIGHT[EN]” provides no actual instruction on how

much torque can safely be applied to the coupling nut without over-stressing the parts. This

vague instruction requires that the installer guess as to how much torque is “just enough” to hold

the nut in place so that it will not leak, while failing to warn of the nut’s propensity to fracture

should the amount of torque exceed that required to “hand tighten.”

65. The Toilet Connector’s label also fails to identify the risks and hazards associated

with over tightening the coupling nut. The label does not warn about: the specific nature of the

risks (i.e., spontaneous fracture), gravity of the risks (i.e., flooding) and how to avoid those risks

(i.e., replacement after a reasonable useful life).

66. Without proper instruction or warning about spontaneous fracture, Plaintiffs and

the Class members were left on their own to determine whether the plastic nut was properly

affixed to the toilet; and if, or when it should be replaced while affixed to a toilet, which has an

average life expectancy of at least 15 years.

67. Defendants also failed to include any mention or reference to the Toilet

Connector’s limited warranty, the warranty duration, or an estimated useful life on the label

affixed to the connector. Instead, Defendants buried on their website the Toilet Connector’s

limited one-year warranty that claims the Toilet Connectors are “free from defects in material

and workmanship under normal usage.” The failure to conspicuously display the warranty to



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consumers and the unreasonable limitation on the warranty period renders the warranty

unconscionable.

68. To be sure, the reasonable expectation of the consumer is that the life expectancy

of a properly designed Toilet Connector will equal or surpass that of the toilet, unless informed

or warned otherwise by Defendants.

69. In concealing such information, Defendants have abused their access to

information and superior knowledge of the defects associated with the Toilet Connector’s plastic

coupling and exploited Plaintiffs’ ignorance of these defects and the likelihood that the Toilet

Connector will fail resulting in substantial property damage.

Defendants Secretly Change the Toilet Connector Design

70. With repeated claims of property damage stemming from the coupling nut’s

failure, Defendants had exclusive knowledge of material facts regarding its defective Toilet

Connectors that were not known to, and indeed, actively concealed from Plaintiffs and the

Classes.

71. Despite their knowledge, Defendants never provided any public warnings about

the risk of the Toilet Connector’s failure. Defendants also never instituted a recall to inspect,

repair, or replace the knowingly defective Toilet Connectors. Accordingly, homes and buildings

throughout the United States are exposed to, and continue to suffer, catastrophic water damage

due to the failure of Defendants’ defective Toilet Connectors.

72. Instead, in 2009, Defendants secretly took to re-designing the Toilet Connector

and began to market and sell a new, reinforced Toilet Connector.

73. Defendants’ re-designed Toilet Connector replaced the defective coupling nut’s

low-grade plastic and increased the nut’s wall thickness.

74. To reduce the coupling nuts’ stress concentration, Defendants eliminated the last

two thread cuts in the coupling nuts’ sidewall. Now, instead of ending the threads abruptly

against the base creating a notch, the thread termination occurs directly on the sidewall, which

better withstands the expected high stress of the application. The redesigned nut also has a

generous radius at the transition from the sidewall to the base thereby reducing the stress



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concentration at the previous fracture site.

75. Now, with the re-designed nut in place and without acknowledging the defects

associated with its earlier designs, Watts’ promotional materials generally acknowledged that

“water supply hoses are vulnerable to a number of potential problems” and that “[p]oorly

manufactured hoses can break under normal pressure conditions . . . .”

76. Unlike earlier versions of the toilet connectors’ label, the remediated label

included with its FloodSafe line of connectors’ includes detailed instructions for installation.

The label specifically instructs to “hand tighten only” the plastic nut and warns not to over

tighten.

77. The revised FloodSafe label also now advises the property owner in large type

font that: “THIS PART IS TO BE INSPECTED AFTER INSTALLATION AND EVERY SIX

MONTHS THEREAFTER. REPLACE IF LEAKING.”

78. The remediated coupling nut (model FST12 / UPC Code: 9826831972) with an

improved thread design, increased wall thickness, molded corners, generous radius at the

transition from the sidewall, elevated internal washer design to reduce stress concentration, and

improved labeling is pictured below:

79. Plainly, Defendants recognized—internally— that the earlier versions of their

Toilet Connectors were defective in their design and labeling. Defendants remediated each

defect as part of its FloodSafe design, however, never informed property owners that the earlier



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design could still spontaneously fail causing flooding and that it should be routinely replaced.

80. Moreover, despite their knowledge of these latent defects, Defendants continue to

distribute and sell these defective Toilet Connectors nationwide. As recently as November 2012,

Defendants’ defective Toilet Connectors were found stocked on the shelves of a Pennsylvania

Home Depot.

81. Thus, at all times material hereto, and prior to the Plaintiffs named herein

suffering any damage, Defendants knew that: (a) the risk of the Toilet Connector’s plastic

coupling nut’s failure was substantial; (b) Plaintiffs and the Class members were unaware of the

substantial risk that the Toilet Connectors plastic coupling nut would fail; (c) Plaintiffs and the

Classes had a reasonable expectation that Defendants would disclose the risk and cure the latent

defect; and (d) Plaintiffs and the Classes were unaware that their Toilet Connectors should be

replaced periodically or that they had a limited useful life.

Plaintiffs and the Classes Have Been Damaged

82. Plaintiffs and the Class members have suffered actual harm as a result of

Defendants’ actions because the Toilet Connectors in their homes contain a material design

defect and inadequate label that caused fractures of the plastic coupling nut which resulted in

water leaks and property damage.

83. Plaintiffs and the Classes had a reasonable expectation that the service life of the

Toilet Connectors was at least 15 years, which would equate to the same useful life as the

plumbing component (i.e., toilet) to which it was affixed. The Toilet Connector defects,

however, caused the Toilet Connectors owned by Plaintiffs and the Classes to experience

premature failure that is entirely disproportionate to the age of toilet systems.

84. The injuries sustained by Plaintiffs and the Classes flow from the common facts

surrounding Defendants’ misconduct, including: (a) that the Toilet Connector had defects that

leads to spontaneous fracture of the plastic coupling; (b) that the Toilet Connectors were

defective for their intended use at the time of sale; (c) Defendants did not provide adequate

instruction for installation or warnings urging periodic replacement; and (d) that Defendants,

despite knowing about the Toilet Connectors’ defects, failed to provide any public notice or



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warning about the defective coupling nut design or institute a recall to repair, or replace the

defective Toilet Connectors.

85. The damages suffered by Plaintiffs and the Classes include, without limitation,

amounts paid for the defective Toilet Connectors; amounts paid to remediate property damage

caused by flooding; together with the cost to replace the defective Toilet Connectors, as well as

incidental and consequential damages.

Active Concealment / Equitable Tolling

86. The inherent defects in the plastic coupling nuts are not perceptible to Plaintiffs or

other Class members until the coupling nut ultimately fractures and causes water leaks and

property damage. Even after water begins leaking into the property, homeowners cannot

determine the nature of the defect without expert assistance.

87. Because of the facts alleged in the preceding paragraphs, Plaintiffs and Class

members did not become aware of the defects with the Toilet Connectors until they suffered

damages from its failure.

88. In addition, Defendants are estopped to plead the statute of limitations because

Defendants failed to disclose facts they were obligated to disclose concerning defects in the

Toilet Connectors, actively concealed and misrepresented to Plaintiffs and the Classes facts

which were essential to understanding that Plaintiffs and the Classes had claims against

Defendants and otherwise acted so as to prevent Plaintiffs and the Classes from learning that

they possessed claims against Defendants. Had Plaintiffs and the Classes been aware of the facts

which Defendants misrepresented and concealed, they would have commenced suit against

Defendants before the running of any statute of limitations alleged to be applicable to this case.

CLASS ACTION ALLEGATIONS

89. Plaintiffs bring all their claims as class claims pursuant to Fed. R. Civ. P. 23. The

requirements of Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) are met with respect to the Classes

defined below.



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90. A Rule 23(b)(2) Class is appropriate when the defendant “has acted or refused to

act on grounds that apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

91. Declaratory relief is intended to minimize “the danger of avoidable loss and

unnecessary accrual of damages.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2751 (3d ed. 1998).

92. Defendants’ failure to warn or acknowledge that their Toilet Connector with a

plastic coupling nut contains latent defects that cause fracture resulting in extensive property

damage, as well as their failure to notify Plaintiffs and the Class members about the remediation

to the defective Toilet Connector, makes declaratory relief with respect to a Rule 23(b)(2) class

appropriate.

93. The Rule 23(b)(2) “Declaratory Relief Class” is defined as follows:

All persons in the United States who purchased a Toilet Connector with Defendants’ defective plastic coupling nut and/or own or reside in a structure that contains, a Toilet Connector with Defendants’ defective plastic coupling nut.

94. As an alternative to “Declaratory Relief Class,” Plaintiffs propose a Rule

23(b)(2) “California Declaratory Relief Class” defined as follows:

All persons in the State of California who purchased a Toilet Connector with Defendants’ defective plastic coupling nut.

95. Plaintiffs also propose a Rule 23(b)(3) “Damages Class” defined as follows:

All persons in the United States who (i) purchased a Toilet Connector with Defendants’ defective plastic coupling nut, and/or (ii) own or reside in a structure where a Toilet Connector with Defendants’ defective plastic coupling nut failed.

96. As an alternative to the “Damages Class,” Plaintiffs propose a Rule 23(b)(3)

“Damages Sub-Class” for each of the following states defined as follows:

All persons in the States of California, Oklahoma and Maryland who purchased for personal and/or household use a Toilet Connector with Defendants’ defective plastic coupling nut.

97. Excluded from the Classes are Defendants, any entities in which Defendants have

a controlling interest, any of Defendants parents, subsidiaries, affiliates, officers, directors,



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employees and members of such person’s immediate families, the presiding judge(s) in this case

and her immediate family, and any class member who has entered into a binding release for their

claim with any of the Defendants and/or is barred from bringing a claim due to a judgment

entered in a court of law pursuant to the doctrines of res judicata and/or collateral estoppel.

98. The Classes expressly disclaim any recovery for physical injury caused by a

Toilet Connector’s coupling nut failure.

RULE 23(a), (b)(2), and (b)(3) CRITERIA:

99. Numerosity: Plaintiffs are informed and believe that Defendants sold over a

million defective Toilet Connectors throughout the United States during the Class Period.

Additionally, Plaintiffs believe, and therefore aver, that Defendants’ Toilet Connectors have

failed thousands of times throughout the United States and California resulting in damages.

Accordingly, the Classes consist of hundreds, if not thousands of persons, making individual

joinder of all the Class members impracticable. The Classes can be readily identified;

Defendants’ Toilet Connectors can be identified by unique markings on the Toilet Connector

itself, together with the labeling affixed to each connector.

100. Commonality: Questions of law and fact are common to the Plaintiffs, the

Declaratory Relief Class and the Damages Classes, and predominate over questions affecting

only individual members, including, inter alia, the following:

(a) Whether the design of the Toilet Connectors plastic coupling nut is defective;

(b) Whether the Toilet Connector label provides adequate instruction for its installation, its useful life, its warranty, as well as adequate warnings regarding its propensity to fail;

(c) Whether Defendants owed Plaintiffs and the Classes a duty to warn about the Toilet Connectors’ defects;

(d) Whether Defendants’ design contemplated and compensated for routine torque applied during installation;

(e) Whether Defendants remediated the design of the defective Toilet Connector without notifying Plaintiffs and the Class members;



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(f) Whether Defendants continued to sell the defective Toilet Connector after remediating its design;

(g) Whether Plaintiffs and the members of the Damages Classes are entitled to damages; and

(h) Whether Defendants violated California law, including California’s Unfair Competition Act entitling Plaintiffs and the Classes to declaratory and equitable relief.

101. Typicality: Plaintiffs’ claims are typical of the claims of the Classes described

above, and arise from the same course of conduct by Defendants. The relief Plaintiffs seek is

typical of the relief sought for the absent Class members.

102. Adequacy: Plaintiffs will fairly and adequately represent and protect the interests

of all absent Class members. Plaintiffs are represented by counsel competent and experienced in

consumer protection, products liability, and class action litigation.

103. The Prerequisites of Rule 23(b)(2) are Satisfied for a Declaratory Relief Class:

The prerequisites to maintaining a class action for declaratory and equitable relief pursuant to

Fed. R. Civ. P. 23(b)(2) exist as Defendants have acted or refused to act on grounds generally

applicable to the Class thereby making appropriate declaratory and equitable relief with respect

to the Class as a whole. The central issues whether the Defendants’ Toilet Connectors were

defectively designed; and whether the installation instructions are inadequate; is the same for all

class members. There is an economy to class treatment of this central question because its

resolution has the potential to eliminate the need for continued and repeated litigation across the

country related to the Toilet Connector’s alleged defects and the reasons for its repeated failure.

104. The Prerequisites of Rule 23(b)(3), Predominance and Superiority, are Satisfied

for the Damages Classes: Plaintiffs and the Class have all suffered damages as a result of the

Defendants’ defective Toilet Connector’s plastic coupling nut. A class action is superior to other

available methods for the fair and efficient adjudication of the controversy. Class treatment of

common questions of law and fact is superior to multiple individual actions or piecemeal

litigation. Moreover, absent a class action, most Class members would likely find the cost of

litigating their claims prohibitively high and would therefore have no effective remedy at law.



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105. The prosecution of separate actions by the individual Class members would create

a risk of inconsistent or varying adjudications with respect to individual Class members, which

would establish incompatible standards of conduct for Defendants. In contrast, the conduct of

this action as a class action presents far fewer management difficulties, conserves judicial

resources and the parties’ resources, and protects the rights of each Class member.

106. Defendants’ actions are generally applicable to the Classes as a whole, and

Plaintiffs seek, inter alia, equitable remedies on behalf of a (b)(2) class and damages on behalf of

(b)(3) classes.

CAUSES OF ACTION

FIRST CAUSE OF ACTION Negligence

On Behalf of a Rule 23(b)(3) Damages Class; or alternatively,

on behalf of the State Rule 23(b)(3) Damages Sub-Classes Against All Defendants

107. Each of the preceding paragraphs is incorporated by reference as though fully set

forth herein.

108. Defendants were negligent in that they failed to use reasonable care when they

designed, created, manufactured, assembled, labeled, tested, distributed and sold their Toilet

Connectors with plastic coupling nuts.

109. As the manufacturer and/or seller of a consumer product, Defendants owed a duty

to Plaintiffs and the putative Class members to provide a safe and quality product, and a duty to

provide a product that would perform as it was intended and expected. Defendants also owed a

duty to Plaintiffs and the putative Classes to provide adequate instructions and warnings for

proper and safe use of the product. Defendants further owed a duty to provide Plaintiffs and the

putative Classes with information related to Toilet Connectors reasonable expected life and

information related to its maintenance and replacement.

110. Defendants breached each one of these duties.

111. As a direct and proximate result of Defendants’ negligence, lack of care, and

other wrongful acts, Plaintiffs and the putative Class members sustained damages.



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112. As a result of Defendants’ negligence, Plaintiffs and the putative Classes have

suffered actual damages in the amounts they have paid to remediate property damage caused

from flooding water, together with consequential and incidental damages.

113. That as a direct, proximate and foreseeable result of Defendants’ negligence,

Plaintiffs and the putative Class members have been damaged in the aggregate, in an amount to

be determined at trial.

SECOND CAUSE OF ACTION Strict Liability-Design Defect and Failure to Warn

On Behalf of a Rule 23(b)(3) Damages Class or alternatively, on behalf of the State Rule 23(b)(3) Damages Sub-Classes Against All Defendants


forth herein.

115. Defendants designed, manufactured, sold and/or distributed defective Toilet

Connectors with plastic coupling nuts to Plaintiffs and the putative Classes.

116. The Toilet Connectors that Defendants designed, manufactured, sold and/or

distributed were defective in their design. Further, the Toilet Connectors were defective when

they left Defendants’ control.

117. Defendants knew, or should have known, that the Toilet Connectors contained a

non-obvious danger in their material. Defendants knew that the plastic coupling nut was highly

susceptible to failure under expected installation conditions, and that consumers would not

repeatedly replace their Toilet Connectors without an instruction to do so.

118. Defendants knew that Plaintiffs and the Classes would use the Toilet Connectors

without first inspecting their durability. Defendants failed to inform Plaintiffs and the members

of the Classes as to the Toilet Connectors susceptibility to failure and warn them to replace the

Toilet Connectors periodically.

119. The Toilet Connectors designed, manufactured, sold and/or distributed by

Defendants were defective due to inadequate warnings and inadequate inspection and testing,

and inadequate reporting regarding the results of quality-control testing and safety inspections, or

lack thereof.



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120. Had Plaintiffs and the members of the Classes been adequately warned about the

likelihood that Defendants’ Toilet Connectors would fail, they would have taken steps to avoid

damages by replacing the Toilet Connector.

121. As a direct and proximate result of the defective condition of the Toilet Connector

as designed, sold and/or distributed by Defendants, Plaintiffs and other members of the Classes

have been injured, including catastrophic water damage to their property.

THIRD CAUSE OF ACTION

Negligent Failure to Warn On Behalf of a Rule 23(b)(3) Damages Class or alternatively,

on behalf of the State Rule 23(b)(3) Damages Sub-Classes Against All Defendants


forth herein.

123. Defendants designed, sold and/or distributed defective Toilet Connectors to

Plaintiffs and the Classes.

124. Defendants knew or reasonably should have known that their Toilet Connectors

were defective and dangerous and/or were likely to be dangerous when used in a reasonably

foreseeable manner.

125. Defendants knew or reasonably should have known that Plaintiffs and the Classes

would not realize that the Toilet Connectors were defective and posed a danger of causing

substantial property damage.

126. Defendants failed to adequately warn of the danger or instruct Plaintiffs and the

Classes on the safe use of the product.

127. A reasonable manufacturer, distributor, assembler, or seller under the same or

similar circumstances would have warned of the danger or instructed on the safe use of the

product, including but not limited to, providing detailed installation instructions together with

warnings to replace the Toilet Connectors periodically.

128. As a direct and proximate result of the defective condition of the Toilet Connector

as designed, manufactured, sold, assembled, and/or distributed by Defendants, Plaintiffs and



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other members of the Classes have been injured, including by catastrophic water damage to their

homes resulting, together with incidental and consequential damages.

129. Defendants’ failure to warn or instruct Plaintiffs and the Classes was a substantial

factor in causing their harm.

FOURTH CAUSE OF ACTION

Violation of California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.)

On behalf of a Rule 23(b)(2) Declaratory Relief Class; or alternatively on behalf of a Rule 23(b)(2) California Declaratory Relief Class Against All Defendants


forth herein.

131. Plaintiffs bring this cause of action on behalf of themselves, on behalf of the other

Class members, against Defendants for their unlawful, unfair, fraudulent and/or deceptive

business acts and practices pursuant to California’s Unfair Competition Law (“UCL”), Business

and Professions Code § 17200 et seq., which prohibits unlawful, unfair and/or fraudulent

business acts and/or practices.

132. This claim is predicated on the duty to refrain from unlawful, unfair and deceptive

business practices. Plaintiffs and the other Class members hereby seek to enforce a general

proscription of unfair business practices and the requirement to refrain from deceptive conduct.

133. The UCL prohibits acts of “unfair competition.” As used in this section, “unfair

competition” encompasses three distinct types of misconduct: (a) “unlawful…business acts or

practices”; (b) “unfair fraudulent business acts or practices”; and (c) “unfair, deceptive or

misleading advertising.”

134. Defendants committed an unlawful business act or practice in violation of the

UCL when they violated the California Consumer Legal Remedies Act (“CLRA”), Cal. Civ.

Code § 1750 et seq., by failing to disclose material information about the Toilet Connector’s

defective plastic coupling nut. This omission also violates the deceptive prong of the UCL. As

early as 2002, if not earlier, Defendants knew that the plastic coupling’s design was defective

and that the instructions provided for installation were inadequate, contradictory, and confusing.



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Defendants further knew that Plaintiffs and the Class could not learn or discover that the Toilet

Connector was defective, or that the coupling nut was over-stressed during installation, until the

manifestation of the failure. Defendants surreptitiously remediated the defect and changed the

labeling without warning consumers about the coupling’s potential to spontaneously fail and

cause extensive property damage due to flooding. Defendants’ superior knowledge of the

defects and the active concealment created a legal duty to disclose them.

135. Defendants’ conduct likewise violates the “unfairness” prong of the UCL.

According to the Federal Trade Commission (“FTC”) guidelines: “To justify a finding of

unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by

any countervailing benefits to consumers or competition that the practice produces; and it must

be an injury that consumers themselves could not reasonably have avoided.” FTC Policy

Statement On Unfairness, appended to International Harvester Co., 104 F.T.C. 949, 1070

(1984).

136. As alleged in this complaint, Defendants’ failure to disclose that the Toilet

Connector’s plastic coupling nut contained a defect that could lead to spontaneous fracture and

that it knew the installation instructions were confusing and contradictory produced no

countervailing benefits to consumers or competition that outweigh such substantial harm to

Plaintiffs and the Class. Because the injuries alleged occurred without Plaintiffs’ and the other

Class members’ knowledge, Plaintiffs and the Class, a fortiori, could not have avoided such

injuries. One cannot avoid something about which one is unaware. Accordingly, Defendants

have violated the “unfairness” prong of the UCL.

137. Plaintiffs would not have purchased the Toilet Connectors and/or had them

installed and/or otherwise exposed their real and personal property to catastrophic flooding had


138. As a result of Defendants’ violation of the UCL, Plaintiffs and the Class have

suffered injury-in-fact and lost money or property.

139. Plaintiffs, on behalf of themselves and for all others similarly situated persons,

demand judgment against Defendants and demand declaratory, equitable, and/or injunctive relief



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requiring Defendants to stop their unlawful, deceptive, and unfair conduct and prohibit

Defendants from continuing to sell the defective Toilet Connectors; require notice to the public

at large of the design defects associated with the Toilet Connectors as well as disclose the

availability of a remediated product and all other relief the Court deems just and equitable.

FIFTH CAUSE OF ACTION

Violation of the California Consumers Legal Remedies Act (Cal. Civ. Code § 1750 et seq.)

On Behalf of All Classes Against All Defendants


forth herein.

141. Plaintiffs and the Class members are consumers who purchased Defendants’

Toilet Connectors for personal, family, or household purposes.

142. Plaintiffs were all reasonable consumers, in that, in acting reasonably under the

circumstances, they were not versed in the art of inspecting and judging the design of

Defendants’ Toilet Connector or in the process of its preparation or manufacture.

143. By failing to disclose and concealing the Toilet Connector’s defects, Defendants

violated Cal. Civ. Code § 1770(a), as they represented that their Toilet Connectors had benefits

and characteristics which they do not have, and represented that its Toilet Connectors were of a

particular standard, quality or grade when they were of another. Cal. Civ. Code §§ 1770(a)(5) &

(7).

144. Defendants’ unfair or deceptive acts or practices occurred repeatedly in

Defendants’ trade or business, were capable of deceiving a substantial portion of the purchasing

public and imposed a serious risk of substantial property damage.

145. Defendants knew that their Toilet Connectors were defectively designed, the

installation instructions were confusing, contradictory, and inadequate causing the plastic

coupling nut to fail prematurely, and therefore, rendering them not suitable for their intended

use.

146. Defendants were under a duty to Plaintiffs and the Classes to disclose the

defective nature of the Toilet Connectors because:



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a) Defendants were in a superior position to know the true state of facts about the defects with the plastic coupling nut;

b) Plaintiffs and the Class members could not reasonably have been expected to

learn of or discover that the Toilet Connectors and the plastic coupling nut had a design defect until the manifestation of the failure;

c) Defendants knew that Plaintiffs and the Classes could not reasonably have

been expected to learn or discover the defect and the associated damages that it causes; and

d) When the defect manifests itself it results in catastrophic water damage to

property.

147. In failing to disclose the defective nature of the Toilet Connectors and knowing

the damage that stems from their failure, Defendants have knowingly and intentionally concealed

material facts and breached their duty not to do so.

148. Plaintiffs and the Classes would not have purchased the Toilet Connectors and/or

had them installed and/or otherwise exposed their real and personal property to catastrophic

flooding had Defendants disclosed the propensity for their Toilet Connectors to spontaneously

fail.

149. As a direct and proximate result of Defendants’ unfair or deceptive acts or

practices, Plaintiffs and the Classes have suffered actual damages in the amounts paid for the

defective Toilet Connectors, monies paid to replace the defective Toilet Connectors, and monies

paid to remediate property damage caused by the defective Toilet Connectors.

150. Pursuant to Cal. Civ. Code § 1780(a)(2), (3) and (5), Plaintiffs and the Classes

seek an order for declaratory, equitable and/or injunctive relief prohibiting Defendants from

continuing to engage in the methods, acts, or practices alleged herein. Plaintiffs seek an order

requiring the Defendants to notify consumers who paid for the defective Toilet Connectors that

the Defendants have remediated and changed the design because of the latent defects; and to

provide the remediated Toilet Connectors and/or remuneration to those consumers.

151. Pursuant to Cal. Civ. Code § 1780(d), Plaintiffs and the Classes also seek

attorneys’ fees and costs, and other relief this Court deems proper.



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152. On July 12, 2012, Plaintiffs sent to the Defendants and their counsel via certified

mail, return receipt requested a CLRA demand letter requesting the relief outlined herein. This

pre-suit notice satisfied §1782(a). See ECF No. 90.

153. Plaintiffs’ claim for damages under the CLRA is ripe. Plaintiffs seek to recover

all available damages pursuant to Cal. Civ. Code § 1780(a)(1).

SIXTH CAUSE OF ACTION

Violation of the Song-Beverly Consumer Warranty Act for Breach of Implied Warranty (Cal. Civ. Code § 1792 et seq.)

On Behalf of a Rule 23(b)(3) Damages Class Against All Defendants


forth herein.

155. Plaintiffs assert a claim for violations of California’s Song-Beverly Consumer

Warranty Act (“Song Beverly Act”), Cal. Civ. Code § 1790 et seq., on behalf of themselves and

all other similarly situated California Consumers.

156. The defective Toilet Connectors at issue are “consumer goods” within the

meaning of Cal. Civ. Code § 1791(a).

157. Defendants are a “manufacturer” within the meaning of Cal. Civ. Code § 1791(j).

158. Plaintiffs and the California Class members are the ultimate consumers and

intended end-users of the Toilet Connectors.

159. Under the Song-Beverly Act, every retail sale of consumer goods sold in

California includes an implied warranty by the manufacturer and the retail seller that the goods

are merchantable unless the goods are expressly sold as is or with all faults. Cal. Civ. Code

§§ 1791.3 & 1792.

160. Merchantability, for purposes of the Song-Beverly Act, means that the consumer

goods: (a) pass without objection in the trade under the contract description; (b) are fit for the

ordinary purposes for which such goods are used; (c) are adequately contained, packaged, and

labeled; and (d) conform to the promises or affirmations of fact made on the container or label.

Cal. Civ. Code § 1791.1.



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161. By operation of law, Defendants impliedly warranted to Plaintiffs and the Class

that the Toilet Connectors were of merchantable quality, adequately contained, packaged, and

labeled, and fit for the ordinary purposes for which the Toilet Connectors were intended to be

used.

162. Defendants knew or had reason to know at the time of sale that the Toilet

Connectors were required for a particular purpose (supplying and containing water for a toilet),

and that Plaintiff and Class members were relying on Defendants’ skill or judgment to select or

furnish such goods.

163. Plaintiffs and the members of the Class also believed that if they were required to

replace Defendants’ Toilet Connector after a certain period of time that the label or packaging

for the Toilet Connector would have instructed them to do so.

164. Defendants breached their implied warranties when they failed to adequately label

and package the Toilet Connectors with the necessary instructions related to when to replace the

Toilet Connectors and useful life of the Toilet Connectors.

165. The latent design defects and the defects associated with labeling and packaging

were not discoverable by Plaintiff and the Class at the time of purchase. Indeed, Defendants

failed to provide any warranty information to Plaintiffs and the Class either at the point of sale,

on the label or packaging. Plaintiffs and the Class had no way to determine the useful life of the

Toilet Connectors or any applicable warranty period.

166. As a direct and proximate result of Defendants’ breach of the implied warranty,

Plaintiffs and the Class members have incurred damages to their property, together with the costs

incurred to purchase the defective Toilet Connector and to subsequently replace it after it failed.

SEVENTH CAUSE OF ACTION Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

On behalf of the Rule 23(b)(2) Declaratory Relief Class Against All Defendants


forth herein.



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168. Declaratory relief is intended to minimizes “the danger of avoidable loss and

unnecessary accrual of damages.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2751 (3d ed. 1998).

169. There is an actual controversy between Defendants and Plaintiffs concerning:

(a) whether the Defendants’ Toilet Connectors with plastic coupling nut have a defective design

that leads to fracture of the plastic coupling nut; (b) whether Defendants knew, or should have

known, of this defective design; (c) whether the instructions provided by Defendants for

installation of the Toilet Connector were inadequate; (d) whether the Defendants failed to warn

against over-tightening the plastic coupling nut; and (e) whether Defendants knowingly

remediated the defects before Plaintiffs sustained any damage and without notice to Plaintiffs

and the Declaratory Relief Class about the defects, and the potential for the Toilet Connectors to

fail as a result of the defects.

170. 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.”

171. Despite the repeated failures since their introduction, Defendants have refused to

acknowledge that their Toilet Connectors with plastic coupling nut are defectively designed and

the installation instructions fail to provide adequate direction to safely and properly install the

coupling nut to avoid it failing and causing property damage. Defendants remediated the

defective design and revised the label’s instructions without advising consumers and continuing

to sell the defective Toilet Connectors across the country.

172. Accordingly, because of Defendants failure to act, Plaintiffs seek a declaration

that the Defendants’ Toilet Connectors with plastic coupling nut are defective in their

workmanship, material and labeling. These defects will cause the plastic coupling to fracture

resulting in water damage to property. The defective nature of the plastic coupling nut is

material and requires disclosure to all persons who reside in a structure that contains Defendants’

defective Toilet Connectors with plastic coupling.



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173. The declaratory relief requested herein will generate common answers that will

settle the controversy related to the alleged defective design and labeling of the Toilet

Connectors with plastic coupling nut and the reasons for its repeated failure. There is an

economy to resolving these issues as they have the potential to eliminate the need for continued

and repeated litigation.

EIGHTH CAUSE OF ACTION

Violation of Oklahoma Consumer Protection Act (Okla. Stat. tit. 15, § 752 et seq.)

Alternatively, On Behalf of a Rule 23(b)(3) Oklahoma Damages Sub-Class Against All Defendants


forth herein.

175. Plaintiffs and the members of the Class are persons as defined by the Oklahoma

Consumer Protection Act (“OKCPA”). Okla. Stat. tit. 15, §752(1).

176. Defendants’ offering for sale or purchase and/or distribution of the defective

Toilet Connectors constitutes a consumer transaction for purpose of the OKCPA. Okla. Stat.

tit. 15, §752(2).

177. Defendants’ conduct, as described herein, constitutes a deceptive trade practice in

violation of Okla. Stat. tit. 15, §§ 753(20) & 752(13).

178. Defendants’ deceptive conduct includes, but is not limited to, their knowing

failure to disclose that the Toilet Connectors they sold and/or distributed contained an inherent

defect. Moreover, Defendants never advised Plaintiffs and the Class that it had remediated the

defects with its Toilet Connectors and that their defective Toilet Connectors should be replaced.

All the while, Defendants continued to knowingly misrepresent that their Toilet Connectors were

“free from defects in material and workmanship.”

179. Defendants’ conduct has caused Plaintiffs and the members of the Class to suffer

a detriment and loss in the amounts paid to purchase and install the defective Toilet Connectors.

180. Defendants conduct has also caused Plaintiffs and the Class to suffer a detriment

and loss due to the damages caused to their property by the failure of the defective Toilet



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Connectors. Those damages include, but are not limited to, monies paid to repair and replace

damaged property; costs associated with water removal and clean-up; expenses incurred to

acquire alternative housing, food and other items for activities of daily living during

displacement from residence; unreimbursed home insurance deductible payments; post-failure

mold testing; and all other un-insured and under-insured losses.

181. In addition to the claims for damages, Plaintiffs seek declaratory and injunctive

relief as well as their costs of litigation including reasonable attorneys’ fees as provided for by

the Act.

182. Plaintiffs demand judgment against Defendants and on behalf of both themselves

and the members of the Class.

NINTH CAUSE OF ACTION

Violation of the Oklahoma Implied Warranty Laws (Okla. Stat. tit. 12A, §§ 2-314 & 315)

Alternatively, On Behalf of a Rule 23(b)(3) Oklahoma Damages Sub-Class Against All Defendants


forth herein.

184. The Oklahoma Implied Warranty of Merchantability, Okla. Stat. tit. 12A, § 2-314,

provides that, unless conspicuously excluded or modified, a warranty that the goods shall be

merchantable is implied in a contract for their sale if the seller is a merchant with respect to the

goods of that kind.

185. The Oklahoma Implied Warranty of Fitness for a Particular Purpose, Okla. Stat.

tit. 12A, § 2-315, provides that where the seller at the time of contracting has reason to know of

any particular purpose for which the goods are required and that the buyer is relying on the

sellers’ skill or judgment to select or furnish suitable goods, unless conspicuously excluded or

modified, then there is an implied warranty that the goods shall be fit for such purpose.

186. Oklahoma law permits a consumer to bring a claim for breach of the implied

warranty against the manufacturer to recover the benefit of the bargain if the product was

defective at the time it left the manufacturer’s possession or control.



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187. Defendants failed to make a meaningful effort to conspicuously disclose the

Toilet Connectors’ limited warranty. The Toilet Connector’s label fails to reference or refer the

consumer to the Defendants’ websites for warranty information or to disclose that a warranty

even exists.

188. Moreover, the unreasonable one-year time restriction on the Toilet Connector

warranty is unconscionable on its face. Consumers would reasonably expect plumbing fixtures

to have a lifespan greater than one year.

189. Plaintiffs and the members of the Oklahoma Damages Sub-Class relied upon the

Defendants’ skill or judgment as distinguished from their own skill or judgment to design and

sell Toilet Connectors that were reasonably usable and did not pose a substantial risk of harm to

their property.

190. Defendants knew at the time they designed, sold and/or distributed the Toilet

Connectors that Plaintiffs required the Toilet Connectors to contain and supply water to their

toilets- without leaking. Defendants further knew that Plaintiffs and the members of the Class

would rely on Defendants’ skill, or judgment in manufacturing the Toilet Connector.

191. Defendants breached their implied warranties of merchantability and fitness for a

particular purpose in that the Toilet Connectors contained the inherent defects described herein.

Ultimately, the Toilet Connectors’ defective condition would cause them to fail resulting in

extensive water damage to property.

192. Plaintiffs could not discover the defects with the Toilet Connectors until after they

failed.

193. As a direct and proximate result of Defendants’ breach of implied warranties,

Plaintiffs and other members of the Oklahoma Damages Sub-Class have suffered injury,

including but not limited to, the purchase price of the defective Toilet Connectors.



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TENTH CAUSE OF ACTION Violation of Maryland Consumer Protection Act

(Md. Code Ann., Com. Law §§ 13-101 et seq.) Alternatively, On Behalf of a Rule 23(b)(3) Maryland Damages Sub-Class

Against All Defendants


forth herein.

195. Plaintiffs and the members of the Class are “consumers” as defined by Maryland

Consumer Protection Act (“MCPA”).

196. The MCPA prohibits unfair and deceptive trade practices in the sale of goods,

including the failure to state a material fact if the failure deceives or tends to deceive, as well as

the knowing concealment, suppression, or omission of any material fact. Md. Code Ann., Com.

Law §§ 13-301(3) & (9).

197. Defendants’ deceptive conduct includes, but is not limited to, their knowing

failure to disclose that the Toilet Connectors they sold and/or distributed contained an inherent

defect. Moreover, Defendants never advised Plaintiffs and the Class that it had remediated the

defects with its Toilet Connectors and that their defective Toilet Connectors should be replaced.

All the while, Defendants continued to knowingly misrepresent that their Toilet Connectors were

“free from defects in material and workmanship.”

198. Defendants’ conduct has caused Plaintiffs and the members of the Class to suffer

a detriment and loss in the amounts paid to purchase, install, and/or replace the defective Toilet

Connectors.

199. Defendants conduct has also caused Plaintiffs and the Class to suffer a detriment

and loss due to the damages caused to their property by the failure of the defective Toilet

Connectors. Those damages include, but are not limited to, monies paid to repair and replace

damaged property; costs associated with water removal and clean-up; expenses incurred to

acquire alternative housing, food and other items for activities of daily living during

displacement from residence; unreimbursed home insurance deductible payments; post-failure

mold testing; and all other un-insured and under-insured losses.



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200. In addition to the claims for damages, Plaintiffs seek declaratory and injunctive

relief as well as their costs of litigation including reasonable attorneys’ fees as provided for by

the Act.

201. Plaintiffs demand judgment against Defendants and on behalf of both themselves

and the members of the Class.

ELEVENTH CAUSE OF ACTION

Violation of the Maryland Implied Warranty Laws (Md. Code Ann., Com. Law, § 2-314)

Alternatively, On Behalf of a Rule 23(b)(3) Maryland Damages Sub-Class Against All Defendants


forth herein.

203. Plaintiff and members of the Class are “buyers” as that term is defined in Md.

Code Ann., Com. Law § 2-103.

204. Plaintiff and members of the Class are persons whom the Defendant might

reasonably expect to use or be affected by the defective Toilet Connectors.

205. Defendants are a “seller” as that term is defined in Md. Code Ann., Com. Law

§ 2-103.

206. 44. Defendant also is a “merchant” of Refrigerators as that term is defined in Md.

Code Ann., Com. Law § 2-104.

207. The Toilet Connectors are “goods” as that term is defined in Md. Code Ann.,

Com. Law § 2-105.

208. Defendants impliedly represented and warranted that the Toilet Connectors were

free of defects, merchantable, fit for their intended purpose and fit for the ordinary purposes for

which such goods are used. Defendants made and/or allowed these misrepresentations to be

made with the intent of inducing Plaintiff and the other members of the Class to purchase Toilet

Connectors.

209. Defendants breached these representations and implied warranties, as the Toilet

Connectors contain and suffer from a latent defect, which is due to fundamental design and



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labeling errors well within Defendants’ area of experience and expertise and which is present

when the Toilet Connectors leave their control.

210. Plaintiff Turner provided notice to Defendants of the defect in his Toilet

Connector and the breach of the implied warranty of merchantability.

211. As a result of the foregoing, Plaintiff and the members of the Class have suffered

damages (in the form of out-of-pocket expenditures for repairs, replacements, and property

damage to their homes) that were directly and proximately caused by the defective Toilet

Connectors. Moreover, if Plaintiff and the Members of the Class had known the true facts about

the defect in the Toilet Connectors, they would not have purchased the Toilet Connectors.

212. Plaintiff and the Members of the Class thus are entitled to damages in an amount

to be determined.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf all others similarly situated,

respectfully request that this Court enter a judgment against Defendants and in favor of

Plaintiffs, and grant the following relief:

A. Determine that this action may be maintained as a class action with respect to the

Classes identified herein; certify a class action pursuant to both Rules 23(b)(2) and (3) with

respect to particular issues if appropriate; and designate and appoint the named Plaintiffs herein

and their counsel to serve as Class Representatives and Class Counsel;

B. Grant Plaintiffs and the Declaratory Relief Class members pursuant to Rule

23(b)(2) declaratory, equitable, and/or injunctive relief and require Defendants to stop the

unlawful, unfair and deceptive conduct alleged herein and/or notify the Declaratory Relief Class

members about the Toilet Connector defect at Defendants’ expense, and to pay for replacements

of all the defective Toilet Connectors;

C. Grant Plaintiffs and the Rule 23(b)(3) Damages Classes awards of damages in

such amount to be determined at trial or as provided by applicable law;

D. Grant the Plaintiffs and the members of the Classes their costs of suit, including

reasonable attorneys’ fees, and expenses as provided by law; and



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E. Grant the Plaintiffs and the members of the Classes such other, further, and

different relief as the nature of the case may require or as may be determined to be just,

equitable, and proper by this Court.

JURY TRIAL DEMAND

Plaintiffs, by their counsel, requests a trial by jury on those causes of actions set forth

herein.

Date: May 3, 2013 BERMAN DEVALERIO

By: /s/ Todd. A. Seaver Todd. A. Seaver

Joseph J. Tabacco, Jr. One California Street, Suite 900 San Francisco CA 94111 Email: [email protected]

[email protected] Liaison Counsel for the Putative Classes Simon Bahne Paris Patrick Howard Charles J. Kocher SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Telephone: (215) 575-3986 Facsimile: (215) 496-0999 Email: [email protected]


Interim Lead Counsel for the Putative Classes



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Daniel E. Gustafson Jason S. Kilene Michelle J. Looby GUSTAFSON GLUEK PLLC 650 Northstar East 608 Second Avenue South Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 Email: [email protected]


Steve W. Berman Anthony D. Shapiro HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: [email protected]

[email protected] Jeff D. Friedman (SBN 173886) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 Email: [email protected] Elaine T. Byszewski (SBN 22204) HAGENS BERMAN SOBOL SHAPIRO LLP 301 N. Lake Avenue, Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 Email: [email protected]



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Donald L. Perelman Gerard A. Dever FINE, KAPLAN AND BLACK, P.C. 1835 Market Street, 28th Floor Philadelphia, PA 19103 Telephone: (215) 567-6565 Facsimile: (215) 568-5872 Email: [email protected]

[email protected] Counsel for Plaintiffs and the proposed Classes


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