PVC Decking Companies Want Class Action Lawsuit Dismissed

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CPG International and AZEK Building Products Inc. have moved to dismiss a punitive class action lawsuit that accuses them of misleading consumers about the durability of their products, claiming that identifying Class Members will be nearly impossible. The plaintiffs allege that the PVC decking products are prone to cracking, rotting or discoloration after minimal use.

Because the class action lawsuit involves consumers who purchase the defendants’ products from contractors, lumberyards and other vendors instead of directly from the defendant companies, CPG and AZEK argue that the lawsuit fails to meet ascertainability requirements. Before a class action lawsuit can be certified, they argue that the proposed class definition must be “sufficiently precise to enable a court to ascertain the identity of Class Members by reference to objective critieria.”

“Nothing in defendants’ records would identify individuals or entities in Illinois, Maryland, Virginia, or Connecticut that have owned, own, or acquired homes, residences, buildings, or other structures on which AZEK PVC products have been installed,” the defendants said in their motion to dismiss the class action lawsuit. “Consequently, there is no objective means by which the court could identify Class Members.”

The class action lawsuit was initially filed in April 2013. It is one of several lawsuits around the United States that accuse the defendants of using misleading advertisements to trick consumers into purchasing defective AZEK decks. The plaintiffs allege that the company advertises the products as a longer-lasting alternative to traditional wood and composite material, even though the products are prone to splitting, cracking, rotting, fading or discoloration after minimal use.

AZEK and CPG argue that, although the plaintiffs claim to have relied on the defendants’ marketing materials, they failed to provide information about the specific materials they relied on. Because “Plaintiffs’ vague and non-specific allegations fail to demonstrate their own actual reliance on anything Defendants said or did not say,” AZEK and CPG argue that the consumer fraud claims in the class action lawsuit should be dismissed.

The plaintiffs also claim that they have been denied warranty coverage because the defendants insist that the warranty only covers performance issues and does not provide coverage for aesthetic qualities. AZEK and CPG sought to dismiss the warranty claims in the class action lawsuit, arguing that the warranties at issue exclude the “normal weathering of surfaces” and do not cover design defects.

In order to certify a class action lawsuit, the “named representative must be a member of the proposed class.” AZEC and CPG claim that the plaintiffs are not representative of the classes they seek to define. For example, one plaintiff purports to have purchased AZEK Deck but seeks to represent a class of individuals who purchased AZEK Rail. The defendants argue that it would require a “series of mini-trials” to identify eligible Class Members, which would be “administratively impractical.”

The plaintiffs are represented by Holland Groves & Stolze LLC, Levin Fishbein Sedran & Berman, Parker Waichman LLP, Climaco Wilcox Peca Tarantino & Garofoli Co. LPA, Geragos & Geragos, and Neblett Beard & Arsenault.

The AZEK PVC Deck Durability Class Action Lawsuit is Glodo, et al. v. CPG International Inc., et al., Case No. 3:13-cv-00402, in the U.S. District Court for the Southern District of Illinois.

Update: The U.S. Judicial Panel on Multidistrict Litigation grouped two AZEK PVC decking class action lawsuits in multidistrict litigation in New Jersey on Feb. 18, 2014.

UPDATE 2: October 2017, the AZEK decking durability class action settlement is now open. Click here to file a claim.