Gentek Fails in Bid to Have Defective Siding Class Action Lawsuit DismissedSep 12, 2011 | Parker Waichman LLP
A lawsuit filed by nine plaintiffs claiming Gentek siding products are defective will be allowed to proceed. In an order dated August 23, U.S. District Judge Benita Y. Pearson of the Northern District of Ohio refused a motion by the defendant to dismiss the Gentek siding lawsuit and strike its class action allegations.
According to the order, the Court will set up a status conference via phone this month to determine an appropriate discovery cut-off date.
The original Gentek lawsuit was filed last November. The complaint charged that Gentek aluminum and steel siding has a manufacturing defect that causes it to chip and peel prematurely. All of the plaintiffs alleged that when they tried to exercise their rights under Gentek's warranty, the company only offered to repaint the affected area or pay the owner a “small amount of compensation.”
All nine homeowners named as plaintiffs in the lawsuit claim the Gentek siding they purchased was covered by a "Lifetime Warranty" that requires Gentek TO repair, refinish or replace the defective siding at no cost to the property owner if the siding fails within three years of installation. The same warranty requires that Gentek assume the cost of material and labor for any warranted work upon Gentek’s receipt of $100 payment by the property owner for each incident covered by the warranty, the lawsuit states.
In moving to have the Gentek siding lawsuit dismissed, Gentek claimed the plaintiffs’ allegations failed to suggest actionable conduct. But in the August 23 order, Judge Pearson writes that, “Plaintiffs have nudged each alleged cause of action across the line from conceivable to plausible by asserting facts that substantiate each claim and suggest actionable conduct.”
Judge Pearson called Gentek’s motion to strike class certification premature. “Whether the commonality requirement has been demonstrated cannot be determined until discovery has taken place and choice of law provisions applied,” the order states.