Haley, Mary et al v. Kolbe and Kolbe Millwork Co., Inc. et al

Filing 492

OPINION and ORDER denying 284 Motion to Certify Class under Rule 23. Plaintiffs may have until January 15, 2016, to file a renewed motion for class certification with respect to the limited issues concerning liability and equitable relief identifie d in this order. Defendant may have until January 29, 2016 to file a response, and plaintiffs may have until February 8, 2016 to reply. If plaintiffs do not respond by January 15, 2016, the case will proceed on the individual claims of the named plai ntiffs only. The February 1, 2016 trial date is stricken. The court will set a telephonic conference to revise the schedule in this case after the issue of class certification is resolved. The motions in limine filed by the parties, 317 , 375 , 380 , 388 , 394 , 400 , 402 , 410 , 411 , 412 , 415 , 419 , 420 , 422 and 429 , are DENIED without prejudice. Signed by District Judge Barbara B. Crabb on 12/18/2015. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
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MARY HALEY and MICHAEL HALEY,
LESLIE BANKS and JAMES HAL BANKS,
ANNIE BUINEWICZ and BRIAN BUINEWICZ,
TERRANCE McIVER and JEAN ANN McIVER,
SUSAN SENYK and CHRISTIAN SENYK,
MATTHEW DELLER and RENEE DELLER,
PATRICIA GROOME, GARY SAMUELS and
MARIE LOHR, on behalf of themselves and
others similarly situated,
Plaintiffs,

OPINION AND ORDER
14-cv-99-bbc

v.
KOLBE & KOLBE MILLWORK CO., INC.,
Defendant,
and
FIREMAN’S FUND INSURANCE COMPANY
and UNITED STATES FIRE INSURANCE COMPANY,
Intervenor Defendants.
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Plaintiffs have brought this action under Wisconsin law on behalf of themselves and
similarly situated individuals, alleging that defendant Kolbe & Kolbe Millwork Co., Inc.
breached express and implied warranties under state law related to allegedly defective
windows installed in their homes. Before the court is plaintiffs’ motion to certify (1) four

1

national subclasses under Fed. R. Civ. P. 23(b)(3) for monetary damages on behalf of
consumers with windows that have exhibited rot; and (2) a similar Rule 23(b)(2) class
seeking declaratory and injunctive relief on behalf of consumers with windows that have not
yet manifested the alleged defects. Dkt. #284. Defendant opposes certification on the
grounds that the proposed classes and subclasses are neither well defined nor manageable
and the breach of warranty claims require the resolution of too many individual questions
of law and fact. The parties also disagree about the scope of plaintiffs’ claims. In particular,
they dispute whether plaintiffs have any claims related to (1) express warranties that
defendant’s windows meet certain manufacturing and building standards and (2) an implied
warranty of the windows’ fitness for a particular purpose. Jurisdiction is present under the
Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
I am denying plaintiffs’ motion for class certification because plaintiffs have failed to
satisfy the requirements of Rule 23(a) (prerequisites) and (b) (types of actions). I conclude
that plaintiffs have waived their claims related to an express warranty that defendant’s
windows met certain standards and building codes and that they have failed to plead and
waived any claims for breach of the implied warranty of fitness for a particular purpose.
Plaintiffs have proposed overly broad and confusing class definitions and have not
provided sufficient information from which the court can conclude that their claims are
subject to class-wide proof or fit for resolution on a class-wide basis under either Rule
23(b)(2) or (3). With respect to the Rule 23(b)(3) class, the parties’ submissions show that
the predominant questions would be those affecting only individuals, at least as to several

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aspects of this case, including questions related to choice of law, notice of breach, privity,
accrual, tolling, equitable estoppel, warranty conditions, causation and damages. Plaintiffs’
proposed Rule 23(b)(2) class faces similar problems because the individual inquiries about
defendant’s actions and refusals to act that are necessary to determine whether the class is
entitled to the requested declaratory and injunctive relief make the class unmanageable as
it has been proposed. Further, plaintiffs have failed to demonstrate that a single declaratory
judgment or injunction would provide final relief to each member of the class.
Plaintiffs note correctly that the Court of Appeals for the Seventh Circuit has made
it clear in several recent cases that “the fact that the plaintiffs might require individualized
relief or not share all questions in common does not preclude certification of a class” under
either Rule 23(b)(2) or (3). Bell v. PNC Bank, National Association, 800 F.3d 360, 379
(7th Cir. 2015) (citing Chicago Teachers Union Local No. 1 v. Board of Education of City
of Chicago, 797 F.3d 426, 442 (7th Cir. 2015); In re IKO Roofing Shingle Products Liability
Litigation, 757 F.3d 599, 602 (7th Cir. 2014); Pella Corp. v. Saltzman (Pella II), 606 F.3d
391, 394 (7th Cir. 2010); Arreola v. Godinez, 546 F.3d 788, 801 (7th Cir. 2008); Allen v.
International Truck and Engine Corp., 358 F.3d 469, 471–72 (7th Cir. 2004)). Rule
23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a
class action with respect to particular issues.” A court may limit the class action to questions
of liability and hold separate hearings to determine the damages of individual class members
or homogeneous groups of class members. McMahon v. LVNV Funding, LLC, __ F.3d __,
2015 WL 8119786, at *3 (7th Cir. Dec. 8, 2015) (“It is well established that, if a case

3

requires determinations of individual issues of causation and damages, a court may ‘bifurcate
the case into a liability phase and a damages phase.’”) (quoting Mullins v. Direct Digital,
LLC, 795 F.3d 654, 671 (7th Cir. 2015)); Butler v. Sears, Roebuck & Co., 727 F.3d 796,
800 (7th Cir. 2013) (noting this is “sensible way to proceed”); Carnegie v. Household
International, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (“Rule 23 allows district courts to
devise imaginative solutions to problems created by the presence in a class action litigation
of individual damages issues.”).
In this case, however, plaintiffs have not asked for “issue” certification, have not
explained how any question could be resolved for all class members with common proof and
have not shown that individual proceedings with respect to issues involving multiple state
laws, fact-specific inquiries, causation and timeliness would be manageable. Marshall v. H
& R Block Tax Services Inc., 270 F.R.D. 400, 407 (S.D. Ill. 2010) (noting same in denying
class certification involving consumer fraud and breach of fiduciary duty claims). In lieu of
a full discussion of the Rule 23 requirements, plaintiffs make vague and conclusory
statements and point to cases in which other federal courts have certified “similar” class
actions. For example, they rely heavily on a case in which the District Court for the
Northern District of Illinois certified Rule 23(b)(2) and (3) classes of window buyers who
alleged that defendants fraudulently concealed an inherent product defect that resulted in
rot of the windows’ wood components. Saltzman v. Pella Corp. (Pella I), 257 F.R.D. 471
(N.D. Ill. 2009), aff'd 606 F.3d 391. Although Pella is instructive in some respects, it cannot
serve as a substitute for a Rule 23 analysis, particularly because of the significant differences

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between the facts in this case and those in Pella, which involved only one fraud claim in six
states and a single defect in a specific type of window. Id. at 474.
Although class certification of all of the issues in this case would be unmanageable
under Rule 23(b)(2) or (3), it may be possible for plaintiffs to propose a class for which
limited issues of liability may be determined.

Accordingly, I will give them a final

opportunity to file a renewed request for certification of a limited issue class or classes that
addresses the concerns outlined in this opinion. Along with that motion, plaintiffs must
submit a proposed trial plan that describes in detail the issues likely to be presented at trial,
discusses whether and how those are susceptible to class-wide proof and explains how
individual inquiries could be handled.
The decision to give plaintiffs a second chance makes the February 1, 2016 trial date
unworkable. Accordingly, I am striking the trial date and denying the parties’ motions in
limine without prejudice. After I resolve plaintiffs’ renewed motion for class certification,
I will set a new schedule for the remainder of the case.
In determining whether the proposed classes and subclasses should be certified, I have
considered the allegations in the second amended complaint and the affidavits and
depositions that the parties have submitted. Sharpe v. APAC Customer Services, Inc., 2010
WL 135168, *1 (W.D. Wis. Jan. 11, 2010); Sjoblom v. Charter Communications, LLC, 571
F. Supp. 2d 961, 964 (W.D. Wis. 2008).

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BACKGROUND
The named plaintiffs live in various states across the country and own homes in which
defendant’s windows have been installed at different times since 1997. Sum. Jmt. Ord., dkt.
#233 at 3-10. All of them experienced one or more problems with some of defendant’s
windows, including leaking, rot or cracking or peeling paint. Id. Defendant’s responses to
plaintiffs’ complaints varied, ranging from doing nothing to replacing a limited number of
window sashes. Id. For a variety of reasons, all of the plaintiffs eventually concluded that
defendant would not honor its written warranty on the windows. Id.
Since 1997, defendant has issued at least seven different versions of a written window
warranty. Window warranties, dkt. #314, exh. 1. Every version of the window warranty
includes the following information:
•

A warranty that the windows shall be free from defects in material and
workmanship that would render them unserviceable or unfit for the
ordinary use for which each window is manufactured.

•

A statement that defendant’s obligation under the warranty is limited at
its option to the repair, replacement or refund of the purchase price of the
window.

•

A statement that the warranty is conditional on the window’s being
installed, finished, maintained and operated in accordance with
defendant’s instructions.

•

Exclusions, including those related to environmental conditions and the
type of structure in which the window was installed.

•

Disclaimers of other written and implied warranties.

•

A requirement that the claimant provide written notice of a warranty
claim.

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The window warranties differ in the following respects:
•

The length of warranty (one year for windows purchased in 1997 and 10
years for windows purchased in or after 1998).

•

The type, form and location of the disclaimers.

•

The number and type of exclusions.

•

The time period within which to file written notice of a warranty claim.

•

The existence of a choice of law provision (beginning in October 2002,
window warranties included a Wisconsin choice of law provision).

Since 1997, defendant has issued at least six different versions of a pre-finishing
warranty.

Dkt. #314, exh. 2.

All versions of the pre-finishing warranty include the

following information:
•

A warranty that the K-Kron system (which includes a preservative wood
treatment, polyurea primer and K-Kron topcoat) will resist cracking,
peeling and flaking of the applied paint film for a period of 10 years after
purchase (in versions before 2012) or shipment (in versions from 2012 or
after).

•

A statement that defendant reserves the right to determine the best
method to correct the situation.

•

Beginning in 2002, a Wisconsin choice of law provision.

•

Disclaimers of other express and implied warranties (although the
disclaimer language varied in content, typeface and location).

•

Various conditions, including a requirement that all faces and edges be
thoroughly finished and that the owner must follow defendant’s written
instructions regarding finishing, maintenance, operation and refinishing.

•

A requirement that warranty claimants must provide written notice of a
claim promptly (for versions manufactured before October 2002) or within
30 days of discovery (for versions manufactured after October 2002).

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Plaintiffs filed this lawsuit on February 12, 2014, alleging in relevant part that
defendant breached the express written warranties, outlined above, as well as implied
warranties that it made about the design and performance of its windows and the products
known as the K-Kron or K-Kron II system used for “pre-finishing” the windows. Dkt. ##1
and 34. In their motion for class certification, plaintiffs identify three different categories
of windows that they believe are defective: (1) wood double-hung and glider windows coated
with K-Kron or K-Kron II; (2) aluminum clad casement, transom and picture windows; and
(3) wood casement, transom and picture windows coated with K-Kron or K-Kron II.
The parts of defendant’s windows relevant to this lawsuit are window sashes, sills,
stiles and rails. A sash frames the glass and slides up and down within the frame. A
double-hung window has two movable sashes and a single-hung window has only one. The
horizontal portions of the sash are called rails and the vertical portions are called stiles. The
sill is at the bottom of the window where the lower sash rests when the window is closed.
The sill is wider than the bottom of the sash and extends both into the house and beyond
the sash outside the home.
According to plaintiffs’ experts, Joel Wolf and Haskell Beckham, the accused windows
contain one or more of the following design defects that cause the bottom rail and adjoining
stiles of the wood sashes to deteriorate and decay from exposure to precipitation: (1) an
inadequate sill slope; (2) an inadequate gap between the sill frame and the bottom of the
sash; (3) a weatherstrip gasket on the bottom of the sash that traps water on the sill; (4) an
exposed wood surface on the underside of the sash that is treated with the ineffective water

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repellent known as K-Kron or K-Kron II; and (5) cracked K-Kron and K-Kron II protective
coatings. Dkt. #281 at 2. Specifically, plaintiffs allege that the double-hung and glider
windows have a defective K-Kron coating (defect number five); the aluminum-clad windows
have all of the defects except for an exposed wood sash (defect numbers one through three
and five); and the wood casement, transom and picture windows have all five defects.

OPINION
I. SCOPE OF PLAINTIFFS’ CLAIMS
Before addressing the motion for class certification, it is necessary to resolve a dispute
between the parties about what claims are left after summary judgment. On February 12,
2015, defendant moved for partial summary judgment, arguing that many of plaintiffs’
claims were barred by the applicable statute of limitations and that plaintiffs had failed to
establish the elements of some of their claims. Dkt. #164. In an order entered on June 15,
2015, I granted defendant’s motion with respect to several of plaintiffs’ claims, including (1)
express warranty claims brought by all of the plaintiffs related to statements made by
defendant in its advertising and product literature; and (2) implied warranty clams brought
by the Banks, Buinewicz, McIver, Senyk, Deller and Lohr plaintiffs.

Dkt. #233.

(Defendant’s motion for summary judgment did not address the implied warranty claims
brought by the Haley, Groome and Samuels plaintiffs.) I denied the motion with respect to
(1) express warranty claims brought by the Banks, Lohr, Senyk and Deller plaintiffs related
to defendant’s representation that the windows would remain free from defects for 10 years

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(“no defect” claims); and (2) express warranty claims brought by the McIver and Senyk
plaintiffs based on defendant’s failure to honor its promise to repair, replace or pay for the
defective windows (“failure to honor” claims). Id.
In support of their motion for class certification, plaintiffs contend that in addition
to the claims that survived defendant’s motion for partial summary judgment, they also have
viable claims that defendant breached (1) an express warranty that its windows met certain
[Window &] and Door Manufacturer’s Association standards and building codes; and (2)
an implied warranty that its windows were fit for a particular purpose. Dkt. #285 at 11
(CM/ECF numbering). Defendant contends that plaintiffs either failed to plead these
additional claims or waived them by not discussing them in response to the motion for
summary judgment. I agree with defendant for the reasons explained below.

A. Manufacturing Standards and Building Code Claims
Defendant notes correctly that plaintiffs do not mention anything in their amended
complaint or in their response to defendant’s motion for partial summary judgment about
the windows’ failure to meet either the Window & Door Manufacturers Association
standards or local building codes. Dkt. ##34 and 199. Plaintiffs do not respond to
defendant’s arguments that they have waived these claims, thus forfeiting the issue. United
States v. Jacques, 345 F.3d 960, 962 (7th Cir. 2003) (forfeiture is failure to make timely
assertion of right); Nichols v. National Union Fire Insurance Co. of Pittsburgh, PA, 509 F.

10

Supp. 2d 752, 760 (W.D. Wis. 2007) (plaintiffs forfeited arguments by failing to respond
in meaningful way).
In addition, plaintiffs seem to base their manufacturing standards and building codes
claims on statements that defendant made in its product manuals. As I explained in the
order on defendant’s motion for summary judgment, dkt. #233, these claims qualify as
“advertising statement” express warranties. I dismissed them at summary judgment either
because they were untimely or because plaintiffs had failed to identify any particular
statements made by defendant. Id. at 30-37. Having waived their “advertising statement”
claims on summary judgment, plaintiffs may not reassert them or add to them at this stage
of the proceedings.
For the sake of completeness, I note that plaintiffs recently moved for reconsideration
of the summary judgment order on the ground that they had discovered new evidence that
defendant made false representations to the public regarding “certification testing” of its
windows. Dkt. #367. Although plaintiffs stated generally in that motion that defendant
“artfully worded materials to falsely assure class members, builders and installers that its
windows complied with building codes,” they argued only that defendant’s actions supported
their previously-dismissed Wis. Stat.§ 100.18(1) claims. Id. See also dkt. #384 (dismissing
motion because plaintiffs failed to show new evidence was material or would produce new
result on summary judgment). Plaintiffs had the opportunity in their recent argument to
argue that the new evidence also supported its previously-dismissed “advertising statement”

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warranty claims, but chose not to do so and therefore, have waived their right to raise this
argument in the future.

B. Implied Warranty of Fitness for a Particular Purpose
Under the Uniform Commercial Code and Wisconsin law, an implied warranty of
fitness for a particular purpose arises where the seller knows or has reason to know of a
particular purpose for which the goods are required and that the buyer is relying on the
seller’s skill or judgment to select or furnish suitable goods. Wis. Stat. § 402.315; UCC §
2-315. The statutory comment explains that
A “particular purpose” differs from the ordinary purpose for which the goods
are used in that it envisages a specific use by the buyer which is peculiar to the
nature of his business whereas the ordinary purposes for which goods are used
are those envisaged in the concept of merchantability and go to uses which are
customarily made of the goods in question. For example, shoes are generally
used for the purpose of walking upon ordinary ground, but a seller may know
that a particular pair was selected to be used for climbing mountains.
§ 402.315 (editors’ notes). See also UCC § 2-314 (implied warranty of merchantability
means goods are fit for ordinary purposes for which goods are used).
Defendant points out correctly that plaintiffs have never alleged that they purchased
their windows for any particular purpose other than their ordinary function as windows. In
count II of their amended complaint, which is entitled “Breach of Implied Warranty,”
plaintiffs allege that defendant “impliedly warranted that the Windows were properly
designed, developed, manufactured, distributed, and marketed; that the designs and
materials were proper and of first-class and workmanlike quality; and the windows were fit

12

for their intended use.” Dkt. #34 at ¶ 121 (emphasis added). They further allege that
defendant “breached its warranties by failing to provide adequate and proper designs and/or
materials for the Windows, failing to inspect and identify windows and/or materials with
defects, and failing to provide defect-free windows to Plaintiffs and the Classes.” Id. at ¶
123. Plaintiffs did not allege any special or particular use for the windows, and their
allegation that the windows were not fit for their intended use suggests the customary uses
of the windows and not a special or particular purpose. Plaintiffs also failed to identify the
scope of their implied warranty claims in response to defendant’s motion for partial
summary judgment challenging the timeliness of some of these claims. Dkt. #165 at 14.
In fact, they failed to mention the implied warranty claims at all, which resulted in a ruling
that the Banks, Buinewicz, McIver, Senyk, Deller and Lohr plaintiffs had abandoned their
claims. (Because defendant did not challenge the implied warranty claims brought by the
Haley, Samuels or Groome plaintiffs, those claims remain at issue in this case.)
In their brief in support of class certification, plaintiffs repeat the vague allegations
in their complaint. Dkt. #285 at 42. However, in their reply brief, plaintiffs attempt to
explain that defendant’s promise that its windows were of “superior quality” is an implied
warranty that “the Windows were properly designed, developed, manufactured, distributed,
marketed, sold, and installed and that the designs and materials were proper and of first-class
and workmanlike quality.” Dkt. #359 at 5 and 31. They also state that defendant’s “claim
that its Windows were properly tested and certified pursuant to standards promulgated by

13

the Hallmark Program and Keystone Program created an implied warranty that its Windows
met the specifications required by those programs.” Id.
Although defendant’s statements that the windows were superior and met certain
standards may qualify as an express warranty (which are claims that plaintiffs have waived),
these representations do not identify or describe a specific use that any of the potential class
members had for the windows apart from their ordinary purpose. In support of their view,
plaintiffs cite Pressalite Corp. v. Matsushita Electric Corp. of America, 2003 WL 1811530,
at *5 (N.D. Ill. Apr. 4, 2003), in which the plaintiff’s claim for implied warranty of fitness
for a particular purpose was based on the defendant’s promises to manufacture “high
quality” batteries. However, plaintiffs ignore an important distinction. In Pressalite, the
plaintiff also alleged that the defendant had promised that the batteries would be suitable
as components in two models of plaintiff’s flashlights but knew its products would not meet
that purpose. Id. at *5. In other words, the defendant knew that the plaintiff had a
particular purpose for the products and that the plaintiff was relying on its ability to produce
high quality products for that purpose. There are no such allegations in this case.
Finally, in a convoluted argument, plaintiffs try to concoct a “particular use” by
reasoning that class members bought the windows “for the purpose of not having to perform
maintenance on them” or “not having to replace them.” However, expecting the windows
not to require maintenance or replacement is not a “use” for the windows.

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Accordingly, I find that plaintiffs have failed to plead any claims for the breach of the
implied warranty of fitness for a particular purpose and have waived their right to do so at
this point in the proceedings.

C. Remaining Claims
In light of these rulings, the following claims remain in this lawsuit and are relevant
to the motion for class certification: (1) the express warranty “no defect” claims brought by
the Banks, Lohr, Senyk and Deller plaintiffs; (2) the express warranty “failure to honor”
claims brought by the McIver and Senyk plaintiffs; and (3) the implied warranty of
merchantability claims brought by the Haley, Groome and Samuels plaintiffs.

II. CLASS CERTIFICATION
Plaintiffs have the burden of showing that their proposed classes satisfy the
requirements of Rule 23 and proving each disputed requirement by a preponderance of
evidence. Messner v. Northshore University Health System, 669 F.3d 802, 811 (7th Cir.
2012) (quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001)).
“On issues affecting class certification . . . a court may not simply assume the truth of the
matters as asserted by the plaintiff. If there are material factual disputes, the court must
‘receive evidence . . . and resolve the disputes before deciding whether to certify the class.”
Id. I have concluded that the question of class certification in this case may be decided on
the parties’ written submissions without holding an evidentiary hearing.

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“Because a class action is an exception to the usual rule that only named part[ies]
before the court can have [their] claims adjudicated, the class representative[s] must be part
of the class and possess the same interest[s] and suffer the same injur[ies].” Bell, 800 F.3d
at 373. Fed. R. Civ. P. 23(a) imposes four requirements that all class actions must satisfy:
(1) numerosity, that “the class is so numerous that joinder of all members is impracticable”;
(2) commonality, that “there are questions of law or fact common to the class”; (3)
typicality, that “the claims or defenses of the representative parties are typical of the claims
or defenses of the class”; and (4) adequacy, that “the representative parties will fairly and
adequately protect the interests of the class.” Although separate, “[t]he commonality and
typicality requirements of Rule 23(a) tend to merge.” Telephone Company of the Southwest
v. Falcon, 457 U.S. 147, 157 n.13 (1982). In addition to these explicit requirements, federal
courts have long recognized an implicit “ascertainability” requirement that a class must be
defined clearly and that membership be defined by objective criteria rather than by, for
example, a class member’s state of mind.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657
(7th Cir. 2015) (“Class definitions have failed this requirement when they were too vague
or subjective.”). Finally, plaintiffs must meet the requirements of at least one of the types
of class actions listed in Rule 23(b). They ask to bring a class action under both Rule
23(b)(2) and (3).

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A. Rule 23(b)(3)
Rule 23(b)(3) requires plaintiffs to show that common questions of law or fact
“predominate” over individual questions and that a class action is “superior” to other
methods of adjudication.

Bell, 800 F.3d at 373.

“While similar to Rule 23(a)’s

requirements for typicality and commonality, the predominance criterion [of Rule 23(b)(3)]
is far more demanding.” Messner v. Northshore University Health System, 669 F.3d 802,
814 (7th Cir. 2012) ((internal quotations omitted). The predominance requirement is
satisfied when common questions represent a significant aspect of the case and can be
resolved with common evidence for all class members in single adjudication.

Id.

In

evaluating the requirements of Rule 23(b)(3), a court must consider the class members’
interests in individually controlling separate actions; the extent and nature of any litigation
already begun by the potential class members; the desirability of concentrating the litigation
in the forum chosen by the named plaintiffs; and the likely difficulties in managing a class
action. Rule 23(b)(3)(A)-(D). Also relevant to the analysis are the substantive elements of
plaintiff’s claims, the proof necessary for those elements and how those issues will be
presented at trial. Farmer v. DirectSat USA, LLC, 2010 WL 3927640, *22 (N.D. Ill. Oct.
4, 2010). The ultimate question is whether the proposed class is “sufficiently cohesive to
warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591,
623 (1997).
Plaintiffs seek to certify the following class under Rule 23(b)(3):
All individuals and entities that have owned, own, or acquired homes,
residences, buildings, or other structures physically located in the United

17

States, in which Kolbe aluminum-clad windows or Kolbe wood windows with
K-Kron or K-Kron II coating are or have been installed since 1997 that have
manifested [sic] defect.
Dkt. #359 at 4. (I have quoted plaintiffs’ reply brief, in which they add the phrase “that
have manifested defect” to the original proposed class definition.) In an attempt to manage
the class, plaintiffs propose dividing it into four nationwide subclasses based on the general
type of warranty (express or implied) and the year of window installation: (1) breach of
express warranty on windows installed from 2002 to the present; (2) breach of express
warranty on windows installed from 1997 to the present; (3) breach of implied warranty of
fitness for a particular purpose on windows installed from 2008 to the present; and (4)
breach of implied warranty of merchantability on windows installed from 2008 to the
present.
Defendant challenges plaintiffs’ proposed class and subclasses, contending that
plaintiffs cannot satisfy the commonality, typicality, predominance, superiority, adequacy
of representation requirements of Rule 23(a) and (b) because the class is unmanageable and
there are too many material factual and legal differences among the proposed class members’
claims.

Defendant does not challenge the class with respect to the numerosity or

ascertainability requirements.
Because the requirements of Rule 23(a) and (b)(3) overlap in ways that make them
difficult to analyze separately in this case, I will start by discussing the common issues
identified by plaintiffs and then analyze the problems with class manageability and

18

individual inquiries that defendant says prevent certification of the class and subclasses.
Bell, 800 F.3d at 374 (noting same in analyzing proposed class action).

1. Alleged common issues
Plaintiffs’ claims must depend on “a common contention . . . that is capable of
classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(“What matters to class certification . . . is not the raising of common ‘questions'—even in
droves—but, rather the capacity of a classwide proceeding to generate common answers apt
to drive the resolution of the litigation.”). However, the Court of Appeals for the Seventh
Circuit has made clear that “Rule 23(b) requires only common evidence and common
methodology, not common results.” Bell, 800 F.3d at 379.
Plaintiffs list several “fundamental questions” that they say are common to the claims
of all class members, including:
1. Whether defendant designed, manufactured, sold, and entered defective
windows into the stream of commerce.
2. Whether and when defendant found that the windows were not meeting
ordinary expectations for the durability and performance of windows.
3. Whether defendant continued to claim that its windows would remain free
from defect for 10 years after that was plainly no longer true.
4. Whether defendant processed warranty claims in a manner that evaded its
express or implied warranty obligations.
5. Whether defendant failed to honor its promise to repair, replace or pay for
defective windows.

19

6. Whether defendant’s windows were merchantable at the time they were
sold.
7. Whether it is reasonable to expect consumers to inspect and repair window
coatings on an annual basis.
8. Whether the windows’ premature failure is attributable to improper
installation or maintenance.
Dkt. #285 at 5 and 23. (Plaintiffs also included two questions related to defendant’s alleged
warranties that their windows meet manufacturing standards and building codes and the
implied warranty of fitness for a particular purpose. I have not included those questions
because plaintiffs do not have any claims based on those warranties.)
Plaintiffs do not explain in their supporting brief how these questions can be resolved
for all class members with common proof or why some of the questions are central to the
claims of the class members. Although they state generally that class members purchased
similar products, received the same written warranty and were subject to the same conduct
by defendant, these vague assertions are insufficient to show that their proposed classes are
subject to a common contention that is capable of class-wide resolution.
As discussed at length below, plaintiffs propose broad and overlapping classes that do
not align with their claims and fail to address or account for the individualized proof and
inquiries that appear to be necessary to resolve the questions they pose. Questions (1) - (3)
seem to relate to the “no defect” claims. Although plaintiffs suggest in their reply brief that
they will rely on expert testimony to show that the accused windows contain up to five
design defects that cause rot in the bottom sash of the windows, they ignore individual issues
related to accrual, tolling, equitable estoppel, warranty conditions, causation and damages.

20

It is unclear whether questions (2) and (3) are even relevant because they seem to relate to
defendant’s knowledge and intent, which are not elements of a breach of warranty claim.
Questions (4) and (5) relate to the “failure to honor” claims, which involve the same
individual questions as the “no defect” claims and necessarily raise fact-specific inquiries
with respect to how defendant handled each individual class member’s warranty claim. The
implied warranty of merchantability claims discussed in question (6) are subject to
individual inquiries related to choice of law, tolling, equitable estoppel, causation and
damages.

Question (7) asks about the reasonableness of a condition in the written

warranties that requires consumers to inspect and repair window coatings on an annual
basis. Even if plaintiffs had a means of answering this question on a class-wide basis, it is
not clear why the answer would be relevant to plaintiffs’ breach of express warranty claims.
Finally, question (8) relates to the central issue of causation, which requires a number of
fact-specific inquiries of each class member.
Considering these questions, I will turn to defendant’s specific contentions about the
lack of common issues among potential class members and the predominance of individual
inquiries necessary to resolve their claims.

2. Class definitions and manageability concerns
Defendant contends that the broad class and subclass definitions proposed by
plaintiffs are unmanageable and make it difficult to identify potential class members. I
agree. The proposed class spans 18 years and all 50 states and includes multiple claims

21

involving several types of windows with varying design defects. Although plaintiffs have
attempted to divide the class into more manageable subclasses, they provide a limited and
confusing explanation of the scope of the proposed subclasses in their supporting brief. On
an initial reading, the first two subclasses seem to overlap: both are titled “breach of express
warranty,” and the first subclass includes windows installed from 2002 to the present and
the second subclass includes windows installed from 1997 to the present. It is not until a
footnote in their reply brief that plaintiffs make clear that the first subclass includes the “no
defect” and “failure to honor” express warranty claims and the second subclass is limited to
warranties based on defendant’s statements in its product literature concerning
manufacturing standards and building codes. Dkt. #359 at 35 n. 11. Because I have
determined that plaintiffs waived any express warranty claim based on statements in
defendant’s product literature, the second subclass will not be certified. Similarly, the third
subclass can not be certified because I have found that plaintiffs have no claims related to
the breach of an implied warranty of fitness for a particular purpose. This leaves only two
proposed subclasses—one for all of the express warranty claims and one for the implied
warranty claims.
As discussed in more detail below, the structure of the remaining two subclasses is
unmanageable in light of the wide variety of claims, applicable law, products and alleged
defects in this case. For example, the first subclass includes both the “no defect” and “failure
to honor” claims, which call for different evidence and raise separate questions with respect
to defendant’s conduct, causation, defenses, accrual of the statute of limitations, tolling and

22

equitable estoppel. The subclass does not account for the fact that in order to bring a
“failure to honor” claim, a class member would have had to file a warranty claim. As written,
the class definition includes anyone who had windows installed in certain years and does not
make clear who is eligible to bring a “failure to honor claim.” Plaintiffs fail to explain how
they planned to manage these differences or whether further subclasses (or subclasses of
subclasses) will be needed.
The proposed subclasses also fail to account for what kind of windows were installed
in the class members’ homes and lump together three different product lines (double hung
and glider; aluminum-clad; and wood casement, transom and picture) that allegedly contain
various combinations of five separate defects. Defendant argues that determining whether
the windows are defective on a class-wide basis is further complicated by the fact that the
designs for the three accused product lines have changed substantially over the past 18 years.
Plaintiffs fail to address these concerns in any meaningful way. In their reply brief, they cite
Leonard v. Sears, Roebuck & Co., 2015 WL 4476620, at *5 (N.D. Ill. July 20, 2015), as an
example of a class action that successfully included 29 different models of Kenmore washing
machines in one class. However, the plaintiffs in that case alleged that one defect permitted
mold to accumulate and generate noxious odors. Id. at 8-9. See also Butler, 727 F.3d at 798
(remanding Leonard). For that reason, the court specifically declined to create subclasses
“[u]nless and until it appears to the Court that different washer models had meaningfully
different mold problems.” Leonard, 2015 WL 4476620 at *9. Although the number of
products and defects alleged by plaintiffs in this case may not prevent class certification

23

altogether, it is unclear from plaintiffs’ submissions how they would manage such a diverse
class.

At a minimum, it would seem that more carefully defined subclasses would be

necessary.
With respect to the main class definition, defendant questions why plaintiffs define
the class period with reference to the installation date of the windows and not the delivery
date, which is the triggering date for the statute of limitations for warranty claims under the
Uniform Commercial Code § 2-275. As I determined in the summary judgment order, the
statute of limitations on plaintiffs’ implied warranty claims runs from the date of delivery,
and the statute of limitations on plaintiffs’ express warranty claims accrue when the class
member discovered or should have discovered the breach. Dkt. #233 at 17-18, 30, 38
(citing Wis. Stat. § 402.725(2) and UCC § 2-275). Therefore, I agree with defendant that
the date of installation seems irrelevant to the class definition. (Also noteworthy is the fact
that defendant’s express written warranties run from the date of purchase and not the date
of delivery or installation. However, it is unclear whether the date of purchase will be
relevant to plaintiffs’ express warranty claims in light of the discovery rule.)

3. Individual inquiries
a. choice of law
Because plaintiffs’ breach of warranty claims are governed by state law and plaintiffs
have proposed a nationwide class, it is possible that as many as 50 state laws could apply to
some of the class members’ claims in this case. 7AA Charles Alan Wright, Arthur Miller and

24

Mary Kay Kane, Federal Practice and Procedure § 1780.1 (3d ed. 2005) (in multi-state class
action, choice of law analysis implicates predominance and superiority requirements). The
choice of law analysis affects both the substantive law concerning breach of warranty and the
statute of limitations.

1) express warranty claims
Choice of law should not be an issue for the breach of express warranty claims. As
noted above, defendant added a choice of law provision to its express written warranty in
October 2002. The parties agree that Wisconsin substantive law applies to these warranties,
and I determined in the summary judgment order that claims under these warranties were
subject to Wisconsin’s statute of limitations. Dkt. #233 at 14-17, 28-29 (declining to apply
borrowing statute, which is triggered in diversity cases in which laws of foreign jurisdiction
may be implicated). Plaintiffs attempt to limit their first proposed subclass to express
warranties with a choice of law provision by defining the subclass to include only those
windows installed since 2002. Dkt. #359 at 16 (“[T]he first subclass . . ., which covers
Windows installed from 2002 to the present, is exclusively governed by the laws of
Wisconsin.”). However, by definition, the first subclass encompasses nine months (January
through October 2002) during which defendant’s written warranties did not contain the
choice of law provision. Although plaintiffs did not correct this problem in their reply brief,
it is easily amended if they intend to proceed only on their claims for breach of express
warranties with a choice of law provision.

25

2) implied warranty claims
More problematic is the choice of law issue related to plaintiffs’ implied warranty of
merchantability claims.

As defendant points out, plaintiffs seem to assume that their

implied warranty claims are governed by the choice of law provision in the written
warranties. In their reply brief, plaintiffs cite a portion of this court’s summary judgment
order, in which I discussed the “contractual choice of law provision” in the Senyk and Deller
plaintiffs’ written warranties. However, plaintiffs fail to explain why that provision would
apply to the implied warranty of merchantability. Express written warranties are created by
an agreement between the parties, whereas implied warranties are created by law. Valley
Refrigeration Co. v. Lange Co., 242 Wis. 466, 471, 8 N.W.2d 294, 297 (1943). As made
clear in the summary judgment order, the choice of law provision is part of the express
written warranty and states that “[t]his Express Limited Warranty shall be governed by and
construed in accordance with the laws of the State of Wisconsin.” Dkt. #233 at 16 (citing
dkt. #167, exh. C) (emphasis added). Therefore, it applies only to the express warranty
claims and not to the implied warranty claims.
In a convoluted argument, plaintiffs contend that the court ruled in its summary
judgment order that the implied warranty claims are subject to Wisconsin law. They are
incorrect. In the summary judgment order, I noted that defendant argued that the implied
warranty claims filed by the Banks, Buinewicz, McIver, Senyk, Deller and Lohr plaintiffs
were barred by Wisconsin’s statute of limitations. Dkt. #233 at 37. Defendant assumed
for the purposes of its argument that the Wisconsin statute of limitations (which is longer

26

than those in the named plaintiffs’ home states) applied to these claims. However, because
plaintiffs did not respond to that argument, I found that the Banks, Buinewicz, McIver,
Senyk, Deller and Lohr plaintiffs had abandoned their implied warranty claims.

Id.

Although I followed defendant’s lead and cited Wisconsin law in discussing defendant’s
argument, I did not determine as a matter of law that “Wisconsin law applies to all implied
warranty claims across the class,” as plaintiffs contend. Dkt. #359 at 27. Therefore, a
choice of law analysis must be performed before any class may be certified with respect to
the implied warranty claims.
If the implied warranty claims are governed by the substantive laws and statute of
limitations of the class members’ home states, as defendant contends, plaintiffs’ fourth
proposed subclass is not manageable as proposed because up to 50 state laws could govern
those claims. Although courts can divide multi-state classes into state subclasses to address
such choice of law issues, this would be unmanageable with 50 different state laws. In re
Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002) (“Because these [breach
of consumer product warranty] claims must be adjudicated under the law of so many
jurisdictions, a single nationwide class is not manageable.”); Szabo v. Bridgeport Machines,
Inc., 249 F.3d 672, 677 (7th Cir. 2001) (“[F]ew warranty cases ever have been certified as
class actions—let alone as nationwide classes, with the additional choice-of-law problems
that complicate such a venture.”); Pella I, 257 F.R.D. at 477; Manual for Complex Litigation
(4th) § 22.634, p. 412 (2004), 2004 WL 258892, 1 (“If the choice-of-law and subsequent
analysis show little relevant difference in the governing law, or that the law of only a few

27

jurisdictions applies, the court might address these differences by creating subclasses or by
other appropriate grouping of claims.”). In Pella I, 257 F.R.D. at 485 n.12, the district court
divided the class into six state subclasses, but noted that the laws in those six states had
nearly identical elements.
Finally, I note that plaintiffs have submitted a notice of supplemental authority in
which they point out that defendant has proposed a single set of jury instructions for the
named plaintiffs’ implied warranty claims. Dkt. #441 at 2. However, defendant has stated
only that the states of Wisconsin, Pennsylvania, Michigan and New Hampshire have similar
laws with respect to the implied warranty of merchantability. Id. Plaintiffs have failed to
show how the choice of law issue can be dealt with on a class-wide basis with respect to the
implied warranty claims of class members in the remaining 46 states.

b. accrual, tolling and equitable estoppel
Further complicating the statute of limitations analysis are the issues of accrual and
tolling. In the summary judgment order, I determined that the “no defect” express warranty
claims accrued when plaintiffs discovered or should have discovered that the windows were
defective and the “failure to honor” express warranty claims accrued when plaintiffs
discovered or should have discovered that defendant was not going to honor their warranty.
Dkt. #233 at 19 and 30. As demonstrated in that order analyzing the timeliness of several
of the named plaintiffs’ express warranty claims, determining when a claim accrues requires
inquiries into the state of mind and knowledge of individual class members and the specific

28

circumstances surrounding the failure of their windows. Id. at 21-24. (The discovery rule
does not apply to claims for the breach of implied warranty because those claims accrue
when tender of delivery is made.)
In addition, for any express or implied warranty claims that fall outside the applicable
statute of limitations period, class members may argue that tolling or equitable estoppel
applies. Both doctrines involve multi-factor tests that require fact-intensive and individual
inquires that will vary from class member to class member. Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 451 (7th Cir. 1990) (explaining types of inquiries required under both
doctrines).
Plaintiffs do not address any of these questions in their briefs or explain how they
could be managed on a class-wide basis. Resolving such questions through individual
hearings is unworkable for such a large class. In their reply brief, plaintiffs argue that many
courts have rejected a per se prohibition against certification based on different statutes of
limitations. Pella I, 257 F.R.D. at 486; Sebo v. Rubenstein, 188 F.R.D. 310, 316 (N.D. Ill.
1999); Sparano v. Southland Corp., 1996 WL 681273, at *4 (N.D. Ill. Nov. 21, 1996)
(different states’ statute of limitations and punitive damage laws can be handled by creating
subclasses). Although this is true as a general principle, courts facing similar individual
inquiries regarding accrual, tolling and equitable estoppel have refused to certify a class, at
least with respect to the statute of limitations issue. Pella II, 606 F.3d at 393; Broussard v.
Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir. 1998) (tolling depended
on individualized showings of misrepresentations and obfuscations unique to each class

29

member). In this case, resolving issues of accrual, tolling and equitable estoppel would
require an analysis of each potential class member’s individual experiences and interactions
with defendant. Cf., Sebo, 188 F.R.D. at 316 (equitable tolling and fraudulent concealment
defenses to statute of limitations involved facts common to all class members and related to
proving price-fixing conspiracy). Accordingly, I find that the large number of individual
questions of law and fact necessary to determine the accrual and tolling of the limitations
period for each class member precludes certification of any class with respect to those issues.

c.

notice of the breach
According to defendant, another insurmountable individual issue for all class

members is the requirement in § 2-607(3)(a) of the Uniform Commercial Code that a buyer
must notify the seller of a breach of express or implied warranty within a reasonable time
after the buyer discovers or should have discovered the breach. According to defendant, the
notice requirement varies widely from state to state and requires fact-specific inquiries
related to the timing, content and recipient of each class member’s notice.
Plaintiffs argue that the notice requirement does not apply to consumers who
purchased their windows through independent distributors, a group that plaintiffs say make
up the majority of the proposed class. They base their argument on the following comment
to the Uniform Commercial Code:
Under this Article various beneficiaries are given rights for injuries sustained
by them because of the seller's breach of warranty. Such a beneficiary does not
fall within the reason [sic] of the present section in regard to discovery of
defects and the giving of notice within a reasonable time after acceptance,

30

since he has nothing to do with acceptance. However, the reason of this
section does extend to requiring the beneficiary to notify the seller that an
injury has occurred. What is said above, with regard to the extended time for
reasonable notification from the lay consumer after the injury is also
applicable here; but even a beneficiary can be properly held to the use of good
faith in notifying, once he has had time to become aware of the legal situation.

§ 2-607 cmt 5. Plaintiffs cite an unpublished case from the District of South Carolina in
which the court interpreted the provision under South Carolina law to require retail buyers
to notify only the retail seller who tendered the goods, and not wholesalers, distributors,
manufacturers or others who sold the goods further up the chain of commerce. Thomas v.
Louisiana-Pacific Corp., 246 F.R.D. 505, 512-13 (D.S.C. 2007). However, plaintiffs fail to
analyze the law of any other jurisdiction and fail to provide any authority that all
jurisdictions would adopt the same interpretation that South Carolina has adopted.
Because the express warranty class is subject to Wisconsin law, it would be possible
to determine on a class-wide basis whether those class members who purchased windows
through a distributor were subject to the notice requirement. However, resolution of this
issue for the implied warranty class would require an analysis of the notice laws in all 50
states. If there are states in which notice is required, individual fact-specific inquiries would
be necessary with respect to the timing, content and recipient of each class member’s notice.
Cole v General Motors Corp., 484 F.3d 717, 727 (5th Cir. 2007) (“State law varies on what
constitutes reasonable notice and to whom notice should be given, and other courts
considering the issue in the class certification context have noted that these variations impact
predominance.”); Porcell v. Lincoln Wood Products, Inc., 713 F. Supp. 2d 1305, 1316

31

(D.N.M. 2010) (holding notice requirement called for individual determinations of when
each proposed class member discovered or should have discovered breach). As a result, at
least with respect to the implied warranty class, I conclude that the issue of notice under
UCC § 2–607(3) presents a question in which individual questions of fact would
predominate.

d. determining cause of the rot in “no defect” and merchantability claims
The parties seem to agree that there are several causes for rot, including installation
error, humidity, lack of maintenance and, potentially, the alleged defects. As defendant
notes, determining what caused the rot in each window in each class member’s home
requires an individualized inquiry with respect to the climate in their home state, window
maintenance and upkeep, installation and the specific window problems experienced by each
class member. This question is closely associated with the question whether every class
member met the conditions listed in the written warranties with respect to maintenance,
installation, finishing and operation of the windows. (For example, defendant may argue
that rot in a particular home resulted from improper maintenance or installation.)
Plaintiffs seem to assume that causation can be resolved on a class-wide basis because
their expert will argue that all of the five defects cause rot and defendant’s expert will argue
that the rot results from other causes, like condensation or improper installation. Although
the question whether the alleged defects are a potential cause of rot in certain parts of a
window can be answered for the whole class, the actual cause of rot in each of the class

32

member’s windows requires individual analysis and proof. Pella II, 606 F.3d at 394 (noting
that “[p]roximate cause . . . is necessarily an individual issue” because “wood can rot for
many reasons other than window design and is affected by specific conditions such as
improper installation”).

The same is true with respect to whether each class member

satisfied the conditions of their written warranties. As a result, I will not certify the class
with respect to the issue of causation for either the express or implied warranty claims or the
satisfaction of the conditions in the written warranties.

e. “failure to honor” claims
Defendant contends that whether it failed to honor a particular warranty depends on
whether its warranty obligations were triggered in an individual case and how it responded
to the class member’s claim. (The parties agree that defendant responded differently to the
complaints of the named plaintiffs). Individual inquiries would be needed with respect to
the problem identified by the consumer, whether that problem was excluded under the
warranty, whether the consumer met the warranty conditions related to maintenance and
installation and whether defendant acted appropriately under the circumstances. I agree that
whether defendant’s conduct toward an individual class member qualified as a failure to
honor the warranty cannot be resolved on a class-wide basis.
Plaintiffs ignore these issues and respond that defendant processes its warranty claims
in a manner that “evades its duty” to repair or replace its defective windows. As an initial
matter, it is unclear whether “evading its duty” means the same thing as failing to honor the

33

warranty. In other words, would plaintiffs prove their claims if they proved that defendant
had a policy of “evading” its duty?
In any event, plaintiffs seem to suggest that defendant acted uniformly in avoiding
its obligations to repair or replace defective windows. Generally speaking, the question
whether defendant had a corporate process or policy of failing to honor its written warranty
to repair, replace or refund defective windows would be a question common to the entire
class because it relates to standardized conduct toward all class members. Chicago Teachers
Union, 797 F.3d at 437 (finding in employment discrimination context that “company-wide
practice is appropriate for class challenge even where some decisions in the chain of acts
challenged as discriminatory can be exercised by local managers with discretion—at least
where the class at issue is affected in a common manner, such as where there is a uniform
policy or process applied to all”). However, plaintiffs have not said whether they have any
evidence showing a corporate policy of denying warranty claims. In fact, they suggest that
their evidence of a uniform policy or practice is the fact that defendant denied the warranty
claims of the named plaintiffs.
Although the Court of Appeals for the Seventh Circuit held recently that plaintiffs
seeking class certification are not required to prove the existence of a uniform policy or
process at this stage of the proceedings, it pointed out that “[c]ases in which [defendant’s
employees] use their given discretion to make individual decisions without guidance from
an overarching company policy do not satisfy commonality because the evidence varies from
plaintiff to plaintiff.” Bell, 800 F.3d at 374-75. See also In re IKO, 757 F.3d at 602 (“when

34

multiple [store] managers exercise discretion, conditions at different stores do not present
a common question”). Therefore, plaintiffs should be aware that it will not be sufficient to
show that defendant denied the individual warranty claims of various class members without
common proof of a company-wide policy or directive. Dukes, 131 S. Ct. at 2554-55 (Rule
23(a)(2) commonality requirement not met because “[r]espondents have not identified a
common mode of exercising discretion [over employment matters] that pervades the entire
company”).

f. disclaimer of implied warranty
Every version of defendant’s written warranty contained a disclaimer of implied
warranties but the contents and appearance of the disclaimer varied among versions. Section
2-316 of the Uniform Commercial Code permits a seller to exclude the implied warranty of
merchantability if the disclaimer is conspicuous and mentions merchantability. However,
even if the disclaimer is conspicuous, it will not be enforced against a buyer who did not
have notice of it before purchasing the product. Taterka v. Ford Motor Co., 86 Wis. 2d 140,
149, 271 N.W.2d 653 (1978) (disclaimers in warranty provided subsequent to the sale are
not effective). Finally, the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301-12, restricts
the enforceability of warranty disclaimers for “consumer products.” Windows ordered by
a builder as part of the construction of a new home are not considered consumer products,
16 CFR § 700.1(f), but those ordered directly by the class members are consumer products.
16 CFR § 700.1(e); Miller v. Herman, 600 F.3d 726, 735-37 (7th Cir. 2010). Therefore,

35

says defendant, whether a disclaimer is enforceable against a class member requires an
individualized determination of how they acquired their windows, when they saw the
warranty and which version of the warranty they received.
Plaintiffs do not dispute these requirements with respect to disclaimers. Dkt. #359
at 16-17 and 38. They argue that the court can answer the question whether the disclaimer
is conspicuous on a class-wide basis because there was only one version of the disclaimer
since 2008, when the implied warranty class period began. If this is the case, I agree that
this is a common issue that could be resolved on a class-wide basis. Although plaintiffs
suggest creating a subclass to address the Magnuson-Moss Act issue, they make no attempt
to define one. They also fail to explain how they would manage the allegedly “minor
individual issue” of determining whether the buyer had notice of the disclaimer before
purchasing the windows.

g. privity in implied warranty claims
Defendant notes that state implied warranty laws vary substantially with respect to
the requirement of privity, that is, the legal relationship between the parties. Voelker v.
Porsche Cars North America, Inc., 353 F.3d 516, 525 (7th Cir. 2003) (question of privity
hinges entirely on applicable state law). Defendant argues that if the class members acquired
their windows in any manner other than a direct purchase from defendant, their implied
warranty claims could be barred for lack of privity. For example, “[a] consumer seeking to
sue a product manufacturer who was not involved in the sale of the product to the consumer

36

is said to lack vertical privity with that manufacturer.” Reid v. Unilever U.S., Inc., 964 F.
Supp. 2d 893, 911 (N.D. Ill. 2013). Defendant points out that courts denying certification
of breach of warranty class claims have noted the need for individualized inquiry to
determine whether privity requirements are met. Cole v. General Motors Corp., 484 F.3d
717 (5th Cir. 2007); Kaczmarek v. International Business Machines Corp.,186 F.R.D. 307
(S.D.N.Y. 1999); In re Ford Motor Bronco II Product Liability Litigation, 177 F.R.D. 360
(E.D. La. 1997); Walsh v. Ford Motor Co., 130 F.R.D. 260 (D.D.C. 1990).
Plaintiffs seem to agree that if the implied warranty claims are governed by the laws
of the class members’ home states, the privity requirement will vary state by state. In
response to this issue, they state only that “the Court should certify a subclass of persons
who reside in states that do not require privity as a prerequisite.” Dkt. #359 at 30. It is
unclear whether plaintiffs intend to limited their implied warranty class only to those states
without a privity requirement or if they also seek certification an implied warranty class in
states with a privity requirement. If they are continuing to seek certification of a nationwide
class, they have failed to explain how they would account for the individual inquiries
necessary to determine whether some of the class members have met the privity requirement.

h. damages
Plaintiffs argue generally that damages can be calculated on a class-wide basis because
the “costs of repairing and replacing Windows are fairly uniform” and “straightforward
computer programs exist which allow an individual to obtain a cost estimate by inputting

37

some very basic data such as the type and quantity of Windows involved, the size and shape
of the Windows, and the location of the home to adjust for both local material and labor
costs.” Dkt. #285 at 45. They refer to their expert’s endorsement of “RS Means,” which
one court has defined as “a cost estimator that accounts for regional differences in labor and
materials costs by using zip codes to factor in the specific costs of nearly any type of
construction in a particular area of the country.” In re CertainTeed Fiber Cement Siding
Litigation, 303 F.R.D. 199, 205 (E.D. Pa. 2014). Although plaintiffs say little about it,
apparently RS Means “has been used in the construction/building industry for almost 40
years.” Id.
Defendant contends that each potential class member’s damage award will depend
on the following individual questions: how many windows suffered rot caused by the
defects; whether those windows need replacement or merely repairs; the nature of the repairs
needed, such as window framing, wallboard or replacement trim; the cost of repairs, which
will depend on the number of windows, extent of damage, geographic location and the
particular features of the class member’s home; whether the defects caused consequential
damages to other parts of the class member’s home; whether class members incurred out-ofpocket expenses in making their own efforts to address the problem; and determining which
type of owner (former versus) current is entitled to what recovery. Defendant says that
plaintiffs’ computer models address only the cost of repair or replacement and still require
individual judgments and factual determinations relating to each class member. As an
example, it points out that experts must enter a number of details into the program about

38

each home and make “adjustments” to correct for limits in the program. Dkt. #333 at 11112.
Although it is possible that the computerized model might address many of the
individualized inquiries associated with proving damages, plaintiffs fail to explain the model
to be used in this case in any detail and do not address the other questions raised by
defendant. Of particular concern to the court is (1) the question whether the so-called
“adjustments” call for decisions that should be made by a jury or the court instead of a thirdparty expert, and (2) how plaintiffs propose to address damages outside the scope of repair
and replacement, such as damage to the interior of the home. Without further information,
it is impossible to determine whether damages could be resolved on a class-wide basis. It is
also unclear whether it makes sense to resolve damages on a class-wide basis if the issue of
causation is subject to an individualized inquiry.

4. Conclusion
Regardless whether one views the problem as the absence of a common question of
law or fact, atypicality of the claims, the lack of predominating common questions or the
failure to show that a class action is not a superior method of adjudication, plaintiffs have
not shown that their proposed class and subclasses meet the requirements of Rule 23(a) and
(b)(3). As proposed, the class and subclasses are unmanageable and do not reflect the
multiple claims, accused products, alleged defects and state laws at issue in this case.
Although plaintiffs have identified some issues with respect to liability that may be common

39

to a class of individuals, numerous individual questions of fact and law remain, related to
timeliness (accrual, tolling and equitable estoppel), causation, damages and the implied
warranty claims (choice of law, notice of breach and privity) that cannot be addressed on a
class-wide basis. Plaintiffs have not filed an alternative motion under Rule 23(c)(4) to
certify a limited-issue class. Instead, they insist that their class and subclasses should be
certified with respect to all issues. That is not possible, for the reasons explained above.
However, because there may be common questions related to (1) whether some of
defendant’s products contain defects that can result in rot; (2) whether defendant disclaimed
the implied warranty of merchantability; and (3) whether defendant had a uniform policy
or practice of failing to honor its duty to repair, replace or refund under its written warranty,
I will give plaintiffs one more opportunity to renew its motion for class certification with
respect to those issues. Plaintiffs should take particular care to define manageable classes or
subclasses that reflect the multiple claims, products, alleged defects and state laws at issue.
In addition, they are to submit a plan for trial, in which they describe in detail the issues
likely to be presented at trial, discuss whether and how those issues are susceptible to
class-wide proof and explain how individual inquiries could be handled. Espenscheid v.
DirectSat USA, LLC, 705 F.3d 770, 775 (7th Cir. 2013) (trial plan is reasonable request in
class action suit); 2 William B. Rubenstein, Newberg on Class Actions § 4:79 (5th ed. 2012)
(trial plan is method for addressing recurring concerns of manageability—individualization
and choice of law complexities). Plaintiffs will not be successful if they rely on the same
vague and conclusory statements that they made in support of this motion.

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The individual inquiries are of particular concern.

As discussed, the staggering

number of individual hearings that might be required in this case seems to be unmanageable.
However, the Court of Appeals for the Seventh Circuit has encouraged courts and litigants
to devise imaginative solutions to these problems, including appointing a magistrate judge
or special master to preside over individual damages proceedings or decertifying the class
after the liability trial and providing notice to class members concerning how they may
proceed to prove damages. Carnegie v. Household International, Inc., 376 F.3d 656, 661
(7th Cir. 2004). Although it is unlikely that a manageable class can be proposed in this case,
I am willing to consider any feasible options that plaintiffs may present, so long as plaintiffs
describe in sufficient detail how their plan would work in practice.
Because I have determined that class certification is not appropriate at this time, it
is unnecessary to address all of defendant’s arguments with respect to adequacy of
representation.

Rule 23(a)(4) (class representative and class counsel must “fairly and

adequately protect the interests of the class”); Secretary of Labor v. Fitzsimmons, 805 F.2d
682, 697 (7th Cir. 1986) (representative plaintiffs must not have interests antagonistic to
other class members and class counsel must be qualified, experienced, and able to conduct
proposed litigation). However, a few matters deserve attention.
First, defendant contends that plaintiffs’ lack of a rigorous Rule 23 analysis and
egregious misstatements regarding easily verifiable facts demonstrate that their attorneys
cannot protect adequately the interests of potential class members.

Although I share

defendant’s concerns about the shortcomings in plaintiffs’ briefs, I do not agree that this

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alone disqualifies plaintiffs’ attorneys as class counsel. Plaintiffs’ attorneys appear to be
experienced class action litigators and have been appointed lead counsel in numerous cases.
Without more than isolated instances of what defendant considers sloppy lawyering,
defendant can not show that plaintiffs’ attorneys are incapable of conducting class litigation.
Cox v. Sherman Capital LLC, 295 F.R.D. 207, 214 (S.D. Ind. 2013) (“While Plaintiffs’
counsel’s efforts were indeed minimal with regard to this Motion for Class Certification,
such minimalism does not rise to inadequacy of counsel.”). Cf. Gomez v. St. Vincent
Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011) (counsel inadequate because not diligent
in prosecuting proposed class action, engaged in faulty discovery efforts, subjected to orders
to compel and awards of cost, failed to develop full record for summary judgment and were
previously adjudicated inadequate in similar case).
Second, defendant contends that the interests of the named plaintiffs are at odds with
those of the members of the proposed class because plaintiffs have abandoned causes of
action that other class members may wish to pursue, including claims for negligence, unjust
enrichment and breach of warranty based on statements in defendant’s advertising and
product literature. The danger with this type of “claim-splitting” is that res judicata will bar
any future claims by absent class members. Pella I, 257 F.R.D. at 481. Plaintiffs argue that
“[t]he opportunity to opt out as required by Federal Rules of Civil Procedure 23(b)(3) and
(c)(2)(B) solves any res judicata problem.” Id. at 481-82. Although I agree with this general
premise, I have some concern about the effect of res judicata on potential class members in
the event that plaintiffs choose to narrow their proposed class significantly or propose a

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limited issue(s) class. Any ruling on a common issue would bind all members of the class.
However, if a class is certified only for a limited number of issues, it is important to consider
what effect, if any, that class certification would have on the ability of the class members to
bring additional types of claims or pursue other legal theories. Therefore, if plaintiffs decide
to go that route, they are to discuss the effect that the proposed class action would have on
the potential class members with respect to res judicata or issue and claim preclusion.

C. Rule 23(b)(2)
Under Rule 23(b)(2), plaintiffs must demonstrate that 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.” See also Chicago Teachers Union, 797 F.3d
at 441 (“Colloquially, 23(b)(2) is the appropriate rule to enlist when the plaintiffs' primary
goal is not monetary relief, but rather to require the defendant to do or not do something
that would benefit the whole class.”). The Supreme Court has explained that “Rule 23(b)(2)
applies only when a single injunction or declaratory judgment would provide relief to each
member of the class. It does not authorize class certification when each individual class
member would be entitled to a different injunction or declaratory judgment against the
defendant.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011) (emphasis in
original). In addition, Rule 23(b)(2) does not authorize class certification when each class
member would be entitled to an individual award of monetary damages. Id. See also

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Chicago Teachers Union, 797 F.3d at 443 (Rule 23(b)(2) class cannot seek money damages
unless monetary relief is incidental to injunctive or declaratory relief).
Plaintiffs propose a broad class for injunctive and declaratory relief that is almost
identical to the one they propose under Rule 23(b)(3):
All individuals and entities that have owned, own, or acquired homes,
residences,buildings, or other structures physically located in the United
States, in which Kolbe aluminum-clad or wood Windows with K-Kron or
K-Kron II coating are or have been installed since 1997 that have not manifested
[a] defect.
Dkt. #359 at 17 (emphasis added). In their reply brief, plaintiffs added the phrase “that
have not manifested a defect” to its proposed definition to address concerns that defendant
raised about including in the class individuals who could be compensated adequately with
monetary damages. Dkt. #359 at 7 n.5. Defendant has not had an opportunity to consider
the revised definition.
In their opening brief, plaintiffs stated briefly without any supporting analysis or
authority that they were seeking the following relief:
•

Declare that there are inherent design defects in the accused windows, that
defendant’s express and implied warranties extend to each class member,
and that Kolbe breached its express and implied warranties.

•

Declare that defendant performed inadequate testing on its windows.

•

Order defendant to inspect windows installed in the class members’
structures from 1997 to the present for water and air infiltration and
repair any windows that fail inspection.

Dkt. #285 at 34. In their reply brief, plaintiffs revised and expanded their list to include the
following declarations:

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1. That there are inherent design defects in the sill-to-sash interface of
defendant’s casement, transom, and picture windows installed from 1997 to
the present.
2. That there are inherent design defects in the K-Kron and K-Kron II
systems used by defendant on its double-hung, glider, casement, transom, and
picture windows installed from 1997 to the present.
3. That the express and implied warranties created by defendant during the
relevant time period extend to these design defects.
4. That the testing and certification of “ringer” windows by defendant that
were not substantially similar to the windows it sold was improper.
5. That defendant establish an inspection program for windows installed from
1997 to the present to determine if they properly guard against water and air
infiltration.
6. That defendant repair or replace any windows that do not pass water and
air infiltration tests performed in accordance with Hallmark and Keystone
Program standards.
Dkt. #359 at 58. The only analysis plaintiffs provide with respect to the Rule 23(b)(2)
requirements is that their “declarations are consistent with those approved by the Seventh
Circuit” in Pella. Dkt. #359 at 49. This is insufficient to satisfy plaintiffs’ burden under
Rule 23(b)(2).
My finding that plaintiffs have not satisfied the requirements of Rule 23(a) applies
to both the Rule 23(b)(2) and (3) classes.

The proposed class is overly broad and

unmanageable and plaintiffs have failed to adequately identify common issues capable of
class-wide resolution. Although it may be possible with a revised class definition (and
possibly subclass definitions) to reach a decision for the class about whether there are
inherent defects in the accused windows, the questions whether the warranties extended to

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each class member and whether defendant breached the warranties are subject to the
numerous individualized inquires discussed above. (The proposed declaration regarding
defendant’s testing and certification is unnecessary in light of the fact that plaintiffs will not
be proceeding on any claims related to statements made in its product literature.)
Because of the individual issues related to warranty coverage and causation, it is
unlikely that plaintiffs can seek the proposed injunctive relief described in questions (5) and
(6) on behalf of the class. In addition, it is questionable whether the requested injunction
would be appropriate. Plaintiffs ask that defendant inspect every window it has installed
since 1997 to see whether it properly guards against water and air filtration and repair any
window not meeting manufacturing program standards. As an initial matter, I note that it
is unclear what “air filtration” has to do with this case, and although “water filtration”
presumably relates to the rot allegedly caused by the windows’ defects, not all water
infiltration will lead to rot. Although plaintiffs base their Rule 23(b)(2) class on that
certified in Pella, the injunctive relief they seek is much broader and far more burdensome
than that sought by the plaintiffs in Pella.
In Pella, the district court certified a nationwide Rule 23(b)(2) class consisting of all
class members who owned structures containing a particular type of casement window
manufactured from 1991 to the present, whose windows had not yet manifested the alleged
defect or whose windows had some wood rot but had not been replaced. Pella, 606 F.3d at
392. The court noted that if the class members successfully proved consumer fraud, they
would be entitled to ask Pella to pay the cost of inspection to determine whether wood rot

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was manifest, with any coverage disputes adjudicated by a special master. The court noted
that this class adjudication process would be followed by an individual claims process in
which class members could file a claim with Pella for service “[i]f and when their windows
manifest wood rot due to the alleged defect.” Id. The plan was not to order Pella to inspect
every window it sold for problems (like water infiltration) that could lead to the defect.
Class members would have had to ask Pella to pay for (not perform) the windows’ inspection
to determine whether wood rot was present and then ask for service if the rot resulted from
the alleged defect. Although it is not entirely clear from Pella, it appears that the court
envisioned that the special master would resolve the individual issues of causation and
coverage before a class member was entitled to the injunctive relief.

Without any

comparable plan, plaintiffs’ proposed injunction would be unmanageable.
If plaintiffs choose to renew their motion for class certification, they should address
all of the concerns with their Rule 23(b)(2) class that I have noted in this opinion and, as
with the Rule 23(b)(3) class, propose a plan that identifies the issues likely to be presented
at trial, discusses whether and how those issues are susceptible to class-wide proof and
explains how individual inquiries could be handled.

ORDER
IT IS ORDERED that
1. Plaintiffs’ motion for class certification under Fed. R. Civ. P. 23, dkt. #284, is
DENIED.

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2. Plaintiffs may have until January 15, 2016, to file a renewed motion for class
certification with respect to the limited issues concerning liability and equitable relief
identified in this order. Defendant may have until January 29, 2016 to file a response, and
plaintiffs may have until February 8, 2016 to reply. If plaintiffs do not respond by January
15, 2016, the case will proceed on the individual claims of the named plaintiffs only.
3. The February 1, 2016 trial date is stricken. The court will set a telephonic
conference to revise the schedule in this case after the issue of class certification is resolved.
4. The motions in limine filed by the parties, dkt. ##317, 375, 380, 388, 394, 400,
402, 410-12, 415, 419, 420, 422 and 429, are DENIED without prejudice.

Entered this 18th day of December, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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