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April 11, 2019Download PDF

Once Upon a PEX Line: A Class Action Happy Ending

When I joined Lite DePalma Greenberg Afanador's consumer rights class action practice in April 2014, I did so with my eyes open. I knew the reputation class actions had in our broader culture. “That’s where everybody gets 17 cents and the lawyers get 10 million bucks.” In fact, when I told the father of one of my childhood friends, a man I had known for 20 years, what I would be doing, his reaction was: “class action lawyer – that’s one step below ambulance chaser, right?”

Five years later, I can safely say that this reputation is not unearned, since there are unscrupulous lawyers and some for frivolous suits. I’m at least willing to hear the argument, and I have witnessed (and sometimes worked with) lawyers who fit or even exceed the worst stereotypes the U.S. Chamber of Commerce could gin up about us. This is, however, only one side of the story, and an interstitial one at that, describing an exceedingly small part of the practice and an exceedingly small number of lawyers within it. Here is the other side:

One of the first cases I worked on after joining Lite DePalma Greenberg Afanador was a class action against Nibco, Inc., a manufacturer of residential and commercial “PEX” (i.e., plastic) plumbing systems that were failing across the country, consistently sprouting leaks and damaging homes. As an associate attorney, I was a grinder on that case. I reviewed tens of thousands of documents. I traveled from Indiana to Oklahoma to Texas to Toronto taking depositions and speaking with the plumbers who installed the products and the homeowners who had paid thousands of dollars of their own money to repair drywall, repaint, and replumb their broken lines. Two such clients, a retired couple in rural Texas, would shut off their main water line every time they traveled for fear of returning to a flooded home. Another had completely replumbed his home, out of his own pocket, after his sixth leak. Another couple in Tennessee had experienced over 30 such leaks, causing mold to form and grow in the moist and unreachable recesses of their home.

These were not people who bought a candy bar that said it had almonds when it really had hazelnuts, or got an 11.75” sandwich from Subway instead of the full 12” (the horror!). These were people who were suffering, in the truest sense of that word, from the fear that their homes could literally be destroyed by the defective infrastructure pulsing through them. This was a case where, presumably, even the staunchest opponents of class actions would have to recognize the merit and utility of the case. This was the other side of the story that you rarely read or hear about.

This week, the court approved a settlement between the parties that compensates homeowners for their property damage, gives many of them the option to replumb their homes if they choose, and rewards the class representatives, like that couple in Texas, who spent the last five years making sure that other homeowners would not have to go through the anxiety, stress, and costs, not all of which were monetary, that they did to right this wrong. The relief for most homeowners will be thousands of dollars, money that will truly compensate them for their very real, and oftentimes very devastating, damage.

This is why I do what I do, and this is why most class action lawyers do what they do. For me personally, it was a reaffirmation of the good consumer advocates can do, that “greedy plaintiffs’ lawyers” can truly serve as a ballast against the machinations of companies that market and sell a bad product, and need to be held accountable for that malfeasance (in fact, one could argue that class actions actually bolster the market system by reducing fraud, adhesion, and incomplete information that work to inhibit competition and free enterprise, but that’s a discussion for another day). That’s not spin and it’s not smoke.

My hope, then, would be that the next time you hear someone, in the mold of my friend’s dad, ragging on class actions and the so-called “robber-baron attorneys who use them to extort productive enterprises and create a blight on our judicial system,” even if you are generally inclined to agree, you will be in a position to at the very least respond: “Yes, but….”