In our ongoing goal to report more defense victories when we are tipped to them, Bremer Whyte Brown & O'Meara recently got Judge Jones to dismiss a potentially huge class action suit in U.S. District Court against Uponor, Inc. We know ... who the hell is Uponor, Inc., and why do we care, right? Depending on how you look at it, this suit had ties to the well-known class litigation going on against Kitec, Inc. for faulty plumbing fittings which tended to, well, fail. Both companies use PEX (cross-linked polyethylene) piping, though Uponor uses a different (apparently less-faily) means of attaching the pipe to the fitting.
Uponor was being sued for their plumbing fittings as well but instead of failing, plaintiffs claimed that Uponor's zinc-heavy brass fittings were leaching zinc when exposed to water, clogging pipes.
BWB&O was able to get the suit dismissed with prejudice by essentially severing the head of the class: They got Judge Jones to rule that any plaintiffs who had sought relief under our Notice and Opportunity to Repair statute (Chapter 40) had effectively opted out of the class. Not coincidentally, the named class members had filed for such relief. Net result: No class.
Given that the Kitec litigation led to settlements in excess of $90 million, BWB&O deserves a pat on the back for this victory. Congratulations! (National firm Fisher Kanaris was also involved, but with no local office - who cares about them?)
The case is Slaughter et al. v. Uponor, Inc. et al., Case No. 08-cv-01223.
(Thanks, Tipster!)
"BWB&O deserves a pat on the back for this victory."
ReplyDeleteUh, why? Becuase they managed to screw a bunch of people out of what may very well have been just claims? What CD firm do you work for?
They didn't screw anyone out of anything. The class members requested repairs. Repairs were a complete remedy for their just claims.
ReplyDeleteBWB&O also didn't screw its client. It could have milked this case for hundreds of thousands just in fees.
Been working in the CD field since 2003 and never seen a ruling like this before. But I also haven't seen a CD case in Federal Court, either.
ReplyDeleteI still don't understand how making a Ch 40.600 et seq. Notice severs your right to participate in a class. But I'm sure there are plenty of Plaintiff CD firms that are very anxious today, and happy that most CD litigation happens in State court.
In response to the comment this decision “managed to screw a bunch of people out of what may very well have been just claims,” it should be noted none of the Uponor plaintiffs had any water leaks, obstructions in their pipes, or any other problems with their homes. In fact, none of the Uponor plaintiffs even knew their homes had yellow brass pipe fittings until the plaintiff-CD firms came knocking on their doors and telling them horror stories based purely on speculation and conjecture. Justice has been served by this dismissal, for it protects the defendants from having to pay a pretty penny for replumbing homes that, per plaintiffs’ own admission, currently have no problems whatsoever and potentially won’t in the future. The lesson to be learned is that you shouldn’t file a lawsuit based solely upon the prospect of possible damages in the future; rather, you should make sure you have some actual damages before dragging defendants into court.
ReplyDeleteAs for the comment “I still don't understand how making a Ch 40.600 et seq. notice severs your right to participate in a class,” it all has to do with the election of remedies and claims-splitting. Here, the Uponor plaintiffs both served Chapter 40 notices and filed a strict products liability class action (which Uponor removed to federal court under the Class Action Fairness Act), all in hopes of pursuing two parallel proceedings in different forums against the same defendants and related to the same operative facts. Judge Jones ruled this constitutes impermissible claims splitting and said that in serving Chapter 40 notices, the Uponor plaintiffs elected their remedies under Chapter 40 and, thus, could not continue with a separate strict products liability class action. In essence, the plaintiff-CD attorneys in the Uponor case brought this upon themselves by trying to pursue two separate actions in different forums against the same defendants and based upon the same operative facts.
I'm surprised they dismissed it with prejudice because of a problem with the class reps. The next plaintiffs lawyer can probably just rephrase the class definition (exclude people who made a claim under Ch. 40.600) and give it another shot though.
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ReplyDeleteThank you very much for actually answering the question. So many times when I see what I think is a valid question, people respond with "obviously you're stupid/green/not an attorney/not from Nevada," without answering the question.
I don't mind being insulted if the question is also answered. It's especially nice to see a question ansewred AND without an insult once in awhile.
It's interseting that people are so quick to bash CD attorneys on this blog, yet don't understand the basis for a ruling which is impacted by Ch.40.600 et seq. Guess it's not as easy as you think.
ReplyDelete@2:48
ReplyDeleteYou're right, a problem can't exist unless every person with the product knows they have a problem. Wait a minute, what about the accelerator problem Toyota is having? I guess that's not a real problem because only a few people have crashed their cars so far.
8:22, the issue is not whether or not there is a problem. The issue is whether or not you can get double recovery for the problem. The court (and the law) say "no". The people did not get screwed out of their claims. They got their problem repaired. The only problem for the homeowners is that the plaintiff CD attorneys are mad that they did not get double recovery and extra fees.
ReplyDelete10:29, it's nice to see you've dropped your first defense-biased argument (products aren't defective until they damage property) because it has no basis in reality.
ReplyDeleteRegarding your claims-splitting argument, that's also not true based on what I've heard about the case. The plaintiffs were not pursuing the same plaintiffs in separate forums and were not seeking double recovery. It sounds like you need to check your facts.
The way you talk about these issues makes me think you're working on the case. This makes it even more surprising that you don't understand what happened.
The recent dismissal really boils down to the simple fact the Slaughter plaintiffs made two grave mistakes - 1) they filed a class action complaint in state court without pursuing Chapter 40, and 2) they asserted a claim for products liability against all defendants. Here's why those decisions were massive blunders and affected the outcome of the case.
ReplyDeleteAs for the class action complaint, the plaintiffs attorney did this to beat other plaintiffs firms in a race to the courthouse. Word spread about the 100 million dollar riches obtained in Kitec, so hoards of plaintiffs firms planned to serve Chapter 40 notices for claims against defendants associated with other brands of yellow brass pipe fittings (like coke and pepsi, different companies make essentially the same product). The Slaughter plaintiffs attorneys figured they could get the exclusive rights to such litigation by skipping Chapter 40 and instantly filing a class action complaint on behalf of all Clark County residents. This decision, however, allowed Uponor to remove the case to federal court under the Class Action Fairness Act, which the plaintiffs' attorneys did not anticipate. Once they lost a remand motion and realized they were stuck in federal court, the plaintiffs attorneys began serving Chapter 40 notices in anticipation of instituting a parallel Chapter 40 proceeding in Nevada state court involving the same homes as part of the putative class in the federal class action (ie, they wanted parallel proceedings in two different forums against the same defendants and based upon the same operative facts). Rawlings Olson Cannon then filed a motion to restrain and enjoin the Chapter 40 proceedings, and Judge Jones concluded 1) plaintiffs were engaged in impermissible claims splitting, and 2) any plaintiff who had served a Chapter 40 notice had elected their remedies and, therefore, could not also proceed with a duplicative class action. This ruling severed the head of the class action because all proposed class representatives had served Chapter 40 notices.
As for the cause of action for products liability, this was idiotic for two reasons. Firstly, the economic loss doctrine says a plaintiff cannot sue for products liability if a product did not cause injury to person or other property. If your toaster fails but only damages itself and not your kitchen or yourself, then you cannot sue for products liability (10:29, this is where your post completely misses the mark - good luck with that upcoming tort final, 1L). The Slaughter plaintiffs attorneys hung themselves in this snare by openly admitting there was no evidence of any water leaks, bursting pipes, clogged pipes, or damage to person or other property. Rawlings Olson Cannon sought summary judgment on this issue. Secondly, in Nevada and elsewhere, products liability is governed by Restatement Second Torts 402A, and 402A says it only applies to "sellers" of products. There are hundreds of cases stating mere installers of products, such as plumbers and contractors, are not "sellers" under 402A and, therefore, cannot be sued for products liability. The Slaughter plaintiffs' claim for products liability failed as a matter of law against all defendants except for the manufacturers and distributors, such as plumbers and contractors. This was part of Rawling Olson Cannon's summary judgment motion.
That, my friends, is how one of the first construction defect cases in our local federal court collapsed like a house of cards. It is worth mentioning the Slaughter plaintiffs may be paying the defendants their fees and costs as well (Judge Jones ordered additional briefing on fees and costs).
11:18, thanks for your eloquent explanation and your condescending tone. I'm well aware of the law and understand the strategies employed by both sides. I suggest talking to the partner about what is really going on before pounding your chest and acting as the anonymous tipster claiming victory.
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