Right Now, Right Here—Yancey v. Andersen Corp.

Paul R. Gary
April 4, 2007
COLUMN : Legal | Management

On March 19, David Yancey of Homewood, CA, filed a lawsuit in San Francisco Superior Court alleging that he was misled with respect to the performance and insulating qualities of the gas-filled Andersen windows purchased for installation in his home. He challenges representations as to both initial gas fill and gas retention and claims that NFRC ratings of his windows were inaccurate and misleading. Yancey claims he suffered actual damage in the form of energy costs higher than that which would have been incurred had Andersen’s representations been true.

Yancey alleges not only breach of warranty, but also deceptive practices and fraud. He states that he is bringing some claims “on behalf of all persons in the United States whose homes, apartment complexes, commercial buildings, and/or other structures contain inert-gas-filled windows, doors and/or skylights manufactured and distributed by” Andersen. (David Yancey v. Andersen Corp, Superior Court of California, County of San Francisco, Case No. CGC-07-461468.) Our firm is involved in other class action litigation involving window and door products and we hope to apply some of this experience, albeit in the context of observer, to help you understand the fundamentals and future course of this litigation.

While not unprecedented (see prior cases of Delay v Hurd; Barden v Hurd), the case stands as a challenge to an industry that has been called upon at every turn to increase the energy efficiency of its products. In the past 20 years, remarkable improvements have arisen from the development and utilization of new, innovative technology designed to improve thermal performance. This has unquestionably created an overall benefit to the consumer, and that fact will not change because of this or any other litigation.

Yancey has a right to bring a claim with respect to his property (windows) but, as we noted, he did not stop there. He alleges that it is appropriate for him to bring this claim on behalf of every other owner of Andersen gas-filled windows (and doors and skylights) in the United States. It is far from certain that he has the right to pursue his lawsuit on behalf of anyone other than himself. Whether the California court even has a sufficient interest in pursuing a “nationwide class action,” i.e., including more than its own citizens, and, whether the case should be transferred to federal court under the Class Action Fairness Act of 2005 (CAFA) will be seriously questioned.

To be clear, there is no “class action” at this time, but rather a single-family home case. In every claim for a class action, the plaintiff attempts to transform the claims of a few (in this case of one) into the claims of many. No doubt, even the specter of a class action brings a type of “financial leverage” arising from potential class notification costs, disquieting publicity, extended damages and the prospect of court-ordered attorney fees. Besides, every plaintiff attorney would rather have a big case than a small one.

The law moderates the misuse of class action claims by demanding satisfaction of a number of legal requirements before a case can become a “class action.” In passing CAFA, Congress found that abuses of the class action device have undermined the judicial system, adversely affected interstate commerce and undermined public respect for the judicial system. If the legal hurdles to become a class action are not crossed, then the plaintiff (attorney) bears significant costs.

The procedural process by which an individual claim becomes a class action claim is referred to as “certification” (California Civil Rules 3.760 et seq). A case becomes “certified” as a class action only after a contested hearing and a ruling by the court. To get certification, the plaintiff must not only show the existence of legally viable claims for relief, but also both an “ascertainable class” and a “well-defined community of interest” within members of the purported class. These two seemingly simple requirements must be proved by the existence of an underlying common harm, a predominance of typical claims, the superiority of the class action process over the normal situation of individual claims, and other factors related to the management and maintenance of large and complex litigation. The definition of each component is beyond the scope of synopsis here.

Also, Yancey will have to demonstrate that he is an appropriate representative for the alleged claims of the many members of the purported class. For this reason, the sufficiency, and any unique peculiarities, of the facts supporting the individual claims alleged by Yancey will be scrutinized. If his own individual claim is legally inadequate, then he is “out” as named class representative. If he does not individually possess the type of claims that are legally appropriate for class action treatment, he cannot pursue claims on behalf of the class.

If his claims are legally viable only because of the facts specific to Yancey’s situation—and it is found that to proceed with those claims, an individual determination about those facts (such as, reliance on “ads”) is needed from each class member—then certification of a class action is less than likely.

In sum, a case with allegations important to the fenestration industry has recently been filed. The case represents allegations that will be seriously addressed, but it is important to understand that nothing has been proved and nothing has been determined by the court at this time. Whether Andersen is dealing with a single-family home claim or a class action will be determined only after evidence is assembled and presented to the court. We look forward to following the case with you.


Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.