UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

(EASTERN DIVISION)

 

MARK A. STOLZENBURG, individually   

and on  behalf of a class of similarly-situated           

individuals,                                                      

                                                                                   JURY TRIAL DEMANDED

            Plaintiff                                              

                                                                       

v.                                                                               Civil Action No. 4:14-cv-1533

                                                                       

BIEWER LUMBER, LLC, doing business    

as BIEWER LUMBER LLC, BIEWER         

LUMBER COMPANY, and BIEWER          

LUMBER,                                                     

                                                                       

and                                                                  

                                                                        

GREEN TREE COMPOSITES, L.L.C.         

doing business as GREEN TREE                   

COMPOSITES, LLC                                     

                                                                        

            Defendants                                          

 

CLASS ACTION COMPLAINT ALLEGING (1) VIOLATIONS OF THE MAGNUSON-MOSS WARRANTY ACT, (2) BREACH OF EXPRESS WARRANTY, (3) BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY, AND (4) VIOLATIONS OF MISSOURI MERCHADISING PRACTICES ACT

 

            For his complaint against Defendants Biewer Lumber, LLC (“Biewer”) and Green Tree Composites, L.L.C. (“Green Tree”), Plaintiff Mark A. Stolzenburg (“Stolzenburg”), on behalf of himself and all others similarly situated, alleges as follows:

INTRODUCTION

1.              This class action seeks damages, injunctive and declaratory relief on behalf of a class of all persons who purchased Monarch Composite Decking (“Monarch Decking”) during the Class Period, defined below.

2.              Through a common and uniform course of conduct, Defendants manufactured, supplied, promoted, and sold Monarch Decking when they knew or should have known that the decking would split, crack, warp, rot and/or cup, discolor, or otherwise generally fail for its warranted and intended purpose.

3.              Through a common and uniform course of conduct, Defendants failed to adequately disclose to the consuming public the fact that its Monarch Decking would require replacement within the first 20 years of purchase.

4.              Through a common and uniform course of conduct, Defendants failed to adequately disclose to the consuming public that Defendant Green Tree Composites, L.L.C., was the alter ego of Defendant Biewer Lumber, LLC, and that the former maintained no financial capability of honoring the warranties that it marketed with the sales of Monarch Decking.

5.              Furthermore, through a common and uniform course of conduct, Defendants failed to honor both federally mandated and voluntarily offered warranties that would have required them to repair, correct, or replace, at no cost to the consuming public, the nonconforming and/or defective decking.

6.              The purpose of this action is to hold accountable, and to obtain maximum legal and equitable relief from, Defendants for producing and placing into the stream of commerce Monarch Decking.  This decking does not conform to the durability and longevity of decking reasonably expected by retail consumers or to the statements and affirmations made by Defendants in connection with the sale and delivery of the tires to retail consumers.

JURISDICTION AND VENUE

7.               This Court has jurisdiction over this matter pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1711, et seq., and 28 U.S.C. § 1332(d), which vests original jurisdiction in the district courts of the United States for any multi-state class action where the aggregate amount in controversy exceeds $5 million and where the citizenship of any member of the class of plaintiffs is different from that of any defendant.  The amount-in-controversy and diverse-citizenship requirements of CAFA are satisfied in this case.  Given that Defendants sell their products nationwide, that there are widespread reports of the misrepresentations and defects alleged herein, and given the damage-multipliers available under various state consumer protection laws, Plaintiff believes, and therefore alleges, that the aggregate amount in controversy well-exceeds $5 million.  As to CAFA’s diverse citizenship requirement, Plaintiff is a citizen of Missouri and Green Tree and Biewer are considered citizens of Michigan.

8.              Venue is proper in this district because Plaintiff resides in this District and the claims arose in this District.  In addition, Biewer and Green Tree, limited liability companies, transact business in this judicial district and otherwise are subject to personal jurisdiction in this judicial district, where they sell a good deal of their products.  Accordingly, venue is appropriate in this Court per the terms of 28 U.S.C. § 1391(b).

THE PARTIES

9.              Plaintiff Stolzenburg resides in Chesterfield, Missouri, located in Saint Louis County Missouri.  On or about October 10, 2005, like thousands of consumers across the country, Stolzenburg purchased Monarch Decking manufactured by Defendants, to build a deck at his home.  This material is not a natural wood product; rather it is a composite made from plastic and recycled wood.  Defendants touted Monarch Decking as a “premium” product, guaranteeing that no splitting, cracking, warping, rotting or cupping would ever occur.  But due to a defect or multiple defects, the Monarch Decking did in fact split, cracked, warped, rotted and cupped.

10.           Stolzenburg chose Green Tree decking based on advertisements that described the products as requiring little or no maintenance.  These advertisements promised that the Monarch Decking would not rot, split, splinter, check, or suffer structural damage from termites or fungal decay.  In fact, Defendants expressly warranted that none of these problems would arise within the 20-year warranty period.  Stolzenburg chose Monarch Decking based, in part, on the fact that it came with a 20-year manufacturer warranty.  He had the deck installed by a professional contractor in accordance with Defendants’ instructions. 

11.           Within two years of installation, Stozenburg noticed that large black spots began developing on the decking.  He notified Defendants of this issue and was advised by Defendants to treat the same with a Clorox-based solution.  When that did not work, Stolzenburg contacted Defendants again to notify it of the continuing discoloration.  An employee or agent of Defendants suggested additional sealing and cleaning.  Stolzenburg closely followed these instructions, yet between 2007 and 2013 the decking continued to become discolored, develop mold, split, crack and warp.  Finally, in 2013, the issues had become so problematic and apparent, that Stolzenburg finally demanded either a refund or replacement of the product.  In response, Defendants declined to honor Stolzenburg’s warranty.  The only explanation provided to Stolzenburg by Defendants, for their refusal to honor his warranty, was that Green Tree was no longer in business.  To date, Defendants continue to refuse to honor Stolzenburg’s warranty.  Similarly, and with few exceptions, Defendants have refused, and continue to refuse, to honor the warranties of all purchasers and owners of Monarch Decking.

12.           Upon information and belief, Monarch Decking is so defective that in no circumstance will it adequately function for the duration of its 20-year warranty period.

13.           In response to complaints about defects, which, upon information and belief, Defendants knew about even as they were reaping substantial profits from the sale of Monarch Decking, Defendants advised its customers to clean the decks with harsh products that often fail to work.

14.           In their dealings with the Plaintiff and other consumers, Defendants have violated the federal Magnuson-Moss Warranty Act, state sales laws, and various state consumer protection acts.  Plaintiff brings this suit in order to vindicate his own rights and those of consumers nationwide.

15.           Biewer, a limited liability company, transacts business in this judicial district and otherwise is subject to personal jurisdiction in this judicial district, where it sells a good deal of its products.  Accordingly, venue is appropriate in this Court per the terms of 28 U.S.C. § 1391(b).

16.           Green Tree, a limited liability company, transacts business in this judicial district and otherwise is subject to personal jurisdiction in this judicial district, where it sells a good deal of its products.  Accordingly, venue is appropriate in this Court per the terms of 28 U.S.C. § 1391(b).

17.           Both Biewer and Green Tree conduct business throughout Missouri and the United States.

18.           At all times referenced in this complaint, and continuing through the date of the filing of this complaint, upon information and belief, Biewer owned 100% of all of the stock or shares of Green Tree.

19.           At all times pertinent to this action Green Tree and Biewer were and are the alter egos of each other and in essence constitute one legal entity in which Green Tree operates as a division of Biewer.  The separate incorporation of Green Tree is a sham in that it is merely a corporate veil which insulates Biewer from liability for its products, namely Monarch Decking, sold and manufactured by Green Tree.  Biewer exerted, and currently exerts, extreme influence, complete dominion and/or absolute control over corporate activity and function of Green Tree.  Biewer’s continued operation of Green Tree as a separate entity is a subterfuge designed to defeat public convenience and understanding, justify a wrong, perpetrate a fraud and/or otherwise work an injustice on Plaintiff, Class Members, and the general public.  The conduct of Biewer and/or Green Tree has harmed or will harm Plaintiff, Class Members and the general public, justifying piercing of the corporate veil and holding Biewer liable for the acts and omissions of Green Tree as they are in reality one entity.

20.           Biewer and Green Tree are so intertwined contractually for the liabilities, past, present and future, of each other that they are one entity.  Therefore, the corporate veils of each company should be pierced to properly ascertain the responsible parties for the allegations contained herein. 

21.           Biewer and/or Green Tree expressly and impliedly agreed to assume certain debts and responsibilities, including the product liability of Green Tree by virtue of the handling of warranty claims of Green Tree and well as their continuing relationship.  Consequently, Biewer is the corporate successor to the product liability and other claims asserted, now and in the future, against Green Tree, including this particular lawsuit.

22.           Biewer and Green Tree have shared the same buildings, employees, executives, organization, contracts, customers, suppliers, advertising, and software.

23.           Biewer and Green Tree acted fraudulently with respect to the issuance of warranties by Green Tree in that its purpose was to avoid and/or limit the responsibility of Biewer and Green Tree for the debts of Green Tree, particularly its product liability.  Consequently, Biewer is the corporate successor to the product liability claims asserted, now and in the future, against Green Tree, including this particular lawsuit.

{C}24.           Key employees of Green Tree are in fact employees of Biewer.  Biewer ensured that Green Tree disgorged its profits to Biewer.  Biewer also ensured that Green Tree did not maintain sufficient capital reserves to satisfy warranty claims made by purchasers of Monarch Decking.

{C}25.           At all times pertinent to this action, agents of Biewer, acting within the course and scope of their agency relationship, controlled Green Tree, thereby making Green Tree’s acts and omissions those of their principal, Biewer, either by exercising direct control over Green Tree, or by adopting and ratifying Green Tree’s acts or omissions.

TOLLING

26.           Because the defect with Monarch Decking is latent and not detectable until manifestation, Plaintiff and members of the proposed Class and Subclass were not reasonable able to discover them until after installation, despite their exercise of due diligence, and even then Defendants failed to disclose that its product was inherently defective.  Accordingly, the discovery rule applies to the claims.

27.           Defendants knew of the defect prior to the time of sale, and they concealed that material information from Plaintiff and all consumers.  Any applicable statutes of limitation have, therefore, been tolled by Defendants’ concealment of material facts.

28.           Defendants are estopped from relying on any statutes of limitation because of their concealment of the defect.

CLASS ALLEGATIONS

29.           Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3) on behalf of the following Class (the “Class”) for counts I - III:

All consumers in the United States who, through the date of entry of judgment, themselves or via an agent, purchased any Monarch Decking material for any consumer or household use, or who were transferred ownership of the decking material or any structures containing it, where such decking material has exhibited any rotting, splitting, checking, structural damage from termites, or structural damage from fungal decay.  Excluded from the class are officers, representatives, or agents of Green Tree and Biewer, as well as the judge or magistrate presiding over this case along with his or her immediate family members. 

Plaintiff also brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3) on behalf of the following Subclass (the “Subclass”) for count IV:

All consumers in the State of Missouri who, through the date of entry of judgment, themselves or via an agent, purchased any Monarch Decking material for any consumer or household use, or who were transferred ownership of the decking material or any structures containing it, where such decking material has exhibited any rotting, splitting, checking, structural damage from termites, or structural damage from fungal decay.  Excluded from the subclass are officers, representatives, or agents of Green Tree and Biewer, as well as the judge or magistrate presiding over this case along with his or her immediate family members.

 

Plaintiff is prepared as necessary to amend this class and subclass definition by way of defining appropriate multi-state sub-classes.  Plaintiff anticipates, however, that due to the nature and particulars of applicable laws, the relief sought will be available nationwide.

30.           It is estimated that the Class consists of thousands of persons throughout the United States.  It is estimated that the Subclass consists of hundreds throughout the State of Missouri.  The members of the Class and the Subclass are so numerous that joinder of all members, whether otherwise required or permitted, is impracticable.  The exact number of Class and Subclass members is presently unknown to Plaintiff, but can easily be ascertained from the sales and warranty claim records of Defendants.

31.           There are numerous questions of law or fact common to the members of the Class and Subclass which predominate over any questions affecting only individual members and which make class certification appropriate in this case, including:

a.     Whether the Monarch Decking materials at issue in this lawsuit are defective;

b.     Whether the mix of materials, or any material, used to make Monarch Decking is a cause of the defects alleged;

c.     Whether the manufacturing process is a cause of the defects alleged;

d.     When Defendants realized that the Monarch Decking material at issue was defective;

e.     Whether Defendants continued to market and sell defective Monarch Decking after it learned of the defects;

f.      Whether any purported exclusions or disclaimers of liability in the warranty conspicuous and enforceable;

g.     Whether a statute of limitation or statute of repose applies to the claims of any portion of the Class or Subclass;

h.     Whether the defects in the Monarch Decking were latent;

i.      Whether the limited remedies that Green Tree purports to have offered failed of their essential purpose;

j.      Whether Defendants have a program in place to discourage consumers who bought defective Monarch Decking from seeking all remedies lawfully available to them;

k.     Whether Defendants have placed products on the market with the knowledge that they were defective, or likely to be defective;

l.      Whether Defendants have advertised Monarch Decking as having characteristics that it does not have;

m.   Whether Defendants have acted deceptively, unfairly, or unconscionably in the marketing of its products;

n.     Whether Defendants have acted deceptively, unfairly or unconscionably in addressing the complaints of consumers who purchased or acquired defective Monarch Decking materials;

o.     Whether Defendants’ warranty documents are subject to reformation;

p.    Whether Biewer and Green Tree are the alter egos of each other;

q.     Whether Biewer is liable for the debts of Green Tree;

r.      Whether any other individual or entity other than Biewer is liable for the debts of Green Tree;

32.           Plaintiff’s claims are typical of the Class and Subclass because he was injured in the same manner by Defendants’ violations of provisions of the Magnuson-Moss Warranty Act; by their violations of provisions of Article 2 of the Uniform Commercial Code, as enacted in Missouri, and related principles; and by their unfair, deceptive or unconscionable acts and practices as defined by the consumer protection laws of Missouri.

33.           Plaintiff will protect fully and adequately the interests of all members of the Class and Subclass.  Plaintiff has retained counsel who is experienced in consumer and class action litigation.  Plaintiff has no interest which is adverse to, or in conflict with, other members of the class.

34.           The questions of law and fact common to the members of the Class and Subclass predominate over any questions which may affect only individual members.

35.           A class action is superior to other available methods for the fair and efficient adjudication of this controversy.  The Class and Subclass are readily definable, and prosecution as a class action will eliminate the possibility of duplicative litigation, while also providing redress for claims which otherwise would be too small to support the expense of individual litigation.

36.           Furthermore, Defendants have acted or refused to act, as alleged herein, on grounds generally applicable to the Class and Subclass, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class and Subclass as a whole.

CLAIMS FOR RELIEF

COUNT I – VIOLATION OF MAGNUSON-MOSS WARRANTY ACT (MMWA)

37.           Plaintiff restates the preceding paragraphs and allegations and incorporates them here by this reference.

38.           Congress enacted the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the “MMWA”) in 1975 in response to widespread complaints from consumers that many warranties were misleading and deceptive, and were not being honored.  To remedy this problem of deception and failure to honor warranties, the MMWA imposes civil liability on any “warrantor” for, inter alia, failing to comply with any obligation under a written warranty and/or implied warranty.  See 15 U.S.C. § 2310(d)(1).  The MMWA authorizes a “suit for damages and other legal and equitable relief.”  Id.  The MMWA authorizes the award of attorney fees, and expressly authorizes class actions.  Id. and 15 U.S.C. § 2310(e).

39.           Defendants are “warrantor[s]” within the meaning of Section 2301(5) of the MMWA. 

40.           As set forth in Count II, below, the allegations of which are incorporated herein by reference, Defendants expressly warranted the Monarch Decking, which warranties are “written warranties” within the meaning of Section 2301(6) of the MMWA, and the Uniform Commercial Code.  Defendants breached their express warranties in the manner described above and below.

41.           As set forth in Count III below, the allegations of which are incorporated herein by reference, Defendants impliedly warranted the Monarch Decking as being merchantable and fit for a particular purpose, which warranties are implied warranties within the meaning of Section 2301(7) of the MMWA, and Sections 2-314 and 2-315 of the Uniform Commercial Code.  Defendants breached these implied warranties in the manner described above and below.  Any limitation period, limitation on recovery or exclusions of implied warranties, are unconscionable within the meaning of Section 2-302 of the Uniform Commercial Code and, therefore, are unenforceable, in that, among other things, Plaintiff and members of the Class and Subclass lacked a meaningful choice with respect to the terms of the written warranties due to unequal bargaining power and a lack of warranty competition.

42.           Defendants’ knowledge of the fact that their Monarch Decking would exhibit rotting, splitting, checking, structural damage from termites, or structural damage from fungal decay, has given Defendants more than adequate opportunity to cure the problem, which opportunity they have not taken to date.

43.           Plaintiff and other members of the Class and Subclass were damaged by Defendants’ failure to comply with their obligations under the applicable express and implied warranties, Plaintiff and other Class and Subclass members have suffered actual economic damages and are threatened with irreparable harm.

COUNT II – BREACH OF EXPRESS WARRANTY AND VIOLATIONS OF ARTICLE 2 OF THE UNIFORM COMMERCIAL CODE (UCC)

 

44.           Plaintiff restates the preceding paragraphs and allegations and incorporates them here by this reference.

45.           Monarch Decking was subject to express warranties as described herein, including affirmations, nondisclosures and related representations as to the ordinary characteristics that may be reasonably expected from the Monarch Decking.

46.           Defendants breached the express warranties in the manner described above.

47.           The express warranties were part of the “basis of the bargain” as that term is used in the Uniform Commercial Code and are presumed to be part of the contract between each of the Class and Subclass members, and Defendants as warrantors.  Plaintiff and the Class and Subclass have been damaged by Defendants’ breaches of the express warranties in the manner described above.

COUNT III – BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

 

48.           Plaintiff restates the preceding paragraphs and allegations and incorporates them here by this reference.

49.           Under common and statutory law, a warranty of merchantability and a warranty of fitness for a particular purpose are implied in all sales transactions where the seller has reason to know the particular purpose for which the product is to be used and that the consuming public is relying on the skill or judgment of the seller to furnish a suitable product.  A warranty of merchantability is a warranty implied by law that a product is fit for the ordinary purposes for which it is used, is properly labeled and conforms to the representations made about it.  See Uniform Commercial Code § 2-314.

50.           Monarch Decking was subject to both an implied warranty of merchantability and implied warranty of fitness for a particular purpose.

51.           Defendants breached these warranties in the manner described above.  In particular, the Monarch Decking would not have been merchantable or fit for its particular purpose at the premium prices charged by Defendants had Defendants disclosed the fact that Monarch Decking tended to rot, split, check, or suffer structural damage from termite or fungal decay.

52.           Plaintiff and Class and Subclass members have been damaged by Defendants’ breaches of warranties in the manner described above.

COUNT IV – VIOLATION OF THE MISSOURI MERCHANDISING PRACTICES ACT (MMPA)

 

53.           Plaintiff restates the preceding paragraphs and allegations and incorporates them here by this reference.

54.           Section 407.010, et seq., the Missouri Merchandising Practices Act (“MMPA”) prohibits certain activity in the State of Missouri, and provides various remedies for its violations.  Section 407.020 of the MMPA declares an unlawful practice any act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.

55.           Any act, use or employment declared unlawful by Section 407.020 of the MMPA violates that subsection whether committed before, during or after the sale, advertisement or solicitation.

56.           Section 407.010(4) of the MMPA defines “merchandise” as any objects, wares, goods, commodities, intangibles, real estate or services.  The Monarch Decking, along with its warranty, amounts to merchandise under this provision of the MMPA.  Defendants have, therefore, sold merchandise in the State of Missouri as that term is defined in Section 407.010.4.

57.           Each Defendant is a “person” as that term is defined in Section 407.010(5) of the MMPA and used in Section 407.020.1 of the MMPA.  For purposes of these sections, a “person” includes “any natural person or his legal representative, partnership, firm, for-profit or not-for-profit corporation, whether domestic or foreign, company, foundation, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust”.  Similarly, Plaintiff and all members of Class and Subclass are each considered a “person” as that term is defined in Section 407.010(5).

58.           Defendants have violated and continue to violate Section 407.020 of the MMPA by their act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression or omission of any material fact in connection with the sale and advertisement of Monarch Decking in sale or commerce.  Specifically, Defendants have:

a.     Deceived customers about the qualities of Monarch Decking;

b.     Deceived customers about the warranties offered by Defendants;

c.     Falsely promised that the products would not rot, split, splinter, check, or suffer structural damage from termites or fungal decay;

d.     Falsely promised to warrant, for 20 years, the rotting, splitting, splintering, checking, or structural damage caused by termites or fungal decay;

e.     Misrepresented the quality of Monarch Decking by stating that it is “great”;

f.      Stated in promotional material and advertising that Monarch Decking will “look like new for years to come” with “only minimal cleaning”;

g.     Stated in promotional material and advertising that Monarch Decking will “last year after year with minimal maintenance” and “requires very low maintenance”;

h.     Stated in promotional material and advertising that Monarch Decking “won’t split, crack, warp or rot”;

i.      Stated in promotional material and advertising that Monarch Decking “is covered by a 20-year warranty”;

j.      Failed to disclose that Green Tree was the alter ego of another entity;

k.     Failed to disclose that Green Tree would refuse to honor it 20-year warranties.

PRAYER FOR RELIEF

            WHEREFORE, having stated the foregoing allegations and claims, Plaintiff prays that this Court:

A.            Determine and order that this action may be maintained as a class action pursuant to Rule 23(a)(2) of the Federal Rules of Civil Procedure with respect to Plaintiff’s and class claims for equitable and injunctive relief;

B.             Determine and order that this action may be maintained as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to Plaintiff’s and class claims for damages;

C.             Certify this case as a class action;

D.            Appoint Plaintiff to act as representative of the Class and Subclass;

E.             Declare Neil Smith of The Smith Law Firm, LLC, to act as class counsel for the Class and Subclass;

F.             Order that the Monarch Decking warranty documents be re-formed as necessary, or that certain provisions therein be disregarded as invalid or unenforceable, to permit the Class and Subclass the full panoply of remedies available to them for breach of express and implied warranties or contract under Article 2 of the UCC as adopted in their respective states, or otherwise, including pursuant to the MMWA;

G.            Award to Plaintiff and members of the Class and Subclass all remedies available to them in law or equity, including but not limited to: awards of damages, declaratory relief as appropriate, replacement of defective decking material with non-defective material of suitable type and class, restitution, or disgorgement in such amounts to be determined at trial, with punitive damages, treble or other multiple damages, or penalties where permitted by law, in amounts determined at trial;

H.            Order that Defendants be enjoined from continuing the illegal activities alleged herein, and that a permanent injunction issue requiring Defendants to perform as requested herein, including pursuant to MMWA;

I.               Award Plaintiff and members of the Class and Subclass their costs of suit, including any reasonable attorneys’ fees and expenses, to include expert witness fees, as provided by law, including MMWA;

J.              Permit Plaintiff to amend his complaint as necessary, including to conform to evidence produced at trial; and

K.            Award to Plaintiff, the Class and Subclass such other, further, and different relief as the nature of the case may require, or as may be determined to be just, equitable, and proper by this Court.

DEMAND FOR JURY

            Plaintiff and the prospective Class and Subclass respectfully demand a jury trial on all issues so triable.

Respectfully submitted,

THE SMITH LAW FIRM, LLC

 

 

___________________________

Neil Smith, #56789MO

3407 S. Jefferson Ave.

St. Louis, MO 63118

Phone: (314) 725-4400

Cellular: (314) 974-3266

neil@smithlawfirm.com

 

Attorney for Plaintiff and proposed Class and Subclass