10.  In June 2017, Plaintiff purchased his Restore Products at the Sutherland’s store  located in Cass County, Missouri.   11.  Plaintiff purchased several Restore Products, including Restore Deck Start Wood  Primer, Restore 2X, and Restore 4X.   12.  Plaintiff purchased four gallons of Restore Deck Start Wood Primer; Plaintiff paid  $37.89 for each gallon.   13.  Plaintiff purchased four gallons of Restore 2X; Plaintiff paid $33.97 for each gallon.   14.  Plaintiff purchased three one-gallon containers of Restore 4X; Plaintiff paid $34.25  for each gallon.    15.  Plaintiff also purchased one five-gallon container of Restore 4X; Plaintiff paid $137  for the container.    16.  In total, Plaintiff spent $527.19 on Restore Products.   17.  Plaintiff completed applying the Restore Products to his cedar wooden deck in  September 2017.   18.  By May 2018, the Restore Products already were detaching from several spots on  the deck. Plaintiff repaired those spots.   20.  Below are a series of illustrative photographs of Plaintiff’s deck; the pictures were  taken in August 2019:   23.  Rust-Oleum markets its Restore 4X product as the “Ultimate Refinish” that is “4X  thicker than ordinary paint” and a “premium ultra solid coating.” According to Rust-Oleum,  Restore 4X “[r]efinishes weathered surfaces” and “[c]onceals hairline cracks.” Restore 4X  purports to provide “[s]uperior coverage” and “long lasting protection.”2   24.  Similarly, Rust-Oleum markets its Restore 2X as being “2X thicker than ordinary  paint” that “requires only one coat for total coverage.”3   25.  According to Rust-Oleum, Restore 2X provides “superior water repellency” with  special “algae and mildew resistant coating.”4   26.  Restore 2X also purportedly has “NeverWet Properties Inside” designed to  “extend[] the life of your deck.”5   27.  Plaintiff also purchased and applied Restore Deck Start Wood Primer. Restore  Deck Start Wood Primer is a compatible product with Restore 4X and Restore 2X.   28.  The label of Deck Start Wood Primer states that it “simplifies prep & promotes  topcoat adhesion;” Rust-Oleum’s marketing materials make the same assertion.6   30.  Rust-Oleum also asserts that Deck Start Wood Primer “works on weathered and  worn wood.”8   31.  As outlined above, Rust-Oleum’s representations are false because Restore  Products:  a.  Separate, crack, peel, bubble, flake, pucker, chip and otherwise prematurely fail  shortly after application;  b.  Are not superior to ordinary deck paint or stain;  c.  Cannot withstand harsh weather;  d.  Do not provide “superior water repellency”; and  e.  Do not contain special “algae and mildew resistant coating.”   32.  Similarly, Rust-Oleum knew about these conditions related to Restore Products and  omitted the information and/or concealed it from consumers.  Rust-Oleum’s Knowledge   33.  Rust-Oleum knew or should have known about the defects in its Restore Products.  Indeed, Rust-Oleum previously defended litigation concerning several offerings within its Restore  family of products.   35.  Although technically the MDL encompassed different Restore products than those  at issue here, the claims in that case also concerned the products’ adhesive qualities and durability,  superiority to other products, and ability to withstand flaking, bubbling, and peeling.   36.  Thus, the earlier litigation put Rust-Oleum on notice about the quality of its Restore  products, and the company knew or should have known about the defects in its other Restore  products, including those at issue here.  Consumer Complaints About Rust-Oleum’s Products   37.  Customer complaints about Rust-Oleum’s products are rampant, demonstrating  that Plaintiff’s experience with Rust-Oleum’s products is not unique.   38.  In late September 2019, one customer wrote: “I bought the Restore 4x and applied  it in October 2016 (I live in Florida). Fast forward 2 years and my deck has started to peel and  crack. Horrible product. Pressure washed the deck a month ago and 1/3 of the paint just blew off.  Ugghhhhhh. I won’t be buying this product again…”10   39.  Another customer wrote:  Rust-oleum Restore DO NOT USE THIS PRODUCT IT IS  TERRIBLE! Unfortunately I didn’t take heed of all the negative  reviews on the failure of this product. early summer of 2018 I  prepped my deck as the instructions said and applied it to the deck.  Looked great all summer but early spring 2019 I could see how the  finish starting to flake off from spots all over. It was not in any  particular place and not in well used spots. The pictures I have added  to  this  post  were  taken  today  09/08/19.  There are areas all over the deck that have flaked off. I have no idea  what I’m going to do it looks awful. I understand there is a class  action suit against Rust-oleum for the failure of this product and  wish I could get some kind of resolve from the company to fix this  mess.11  10   https://www.deckstainhelp.com/class-action-lawsuit-against-rust-oleum-deck-restore/#more-7196 (Casie  46.  Plaintiff seeks to represent the following Class:  All persons who purchased Restore Products in Missouri   between October 17, 2014 to the present.   47.  Excluded from the proposed class is Rust-Oleum; any affiliate, parent, or subsidiary  of Rust-Oleum; any entity in which Rust-Oleum has a controlling interest; any officer, director, or  employee of Rust-Oleum; any successor or assign of Rust-Oleum; anyone employed by counsel  for Plaintiff in this action; any judge to whom this case is assigned, his or her spouse, and all  persons within the third degree of relationship to either of them, as well as the spouses of such  persons; members of the judge’s staff; and anyone who purchased Restore Products for the purpose  of resale.   48.  Numerosity. Rust-Oleum sells Restore Products in Missouri through major  retailers. Members of the proposed class likely number in the hundreds or thousands and are thus  too numerous to practically join in a single action. Class members may be notified of the pendency  of this action by mail, supplemented by published notice (if deemed necessary or appropriate by  the Court).   50.  Typicality.  Plaintiff’s claims are typical of the claims of the proposed class.   Plaintiff and the proposed class purchased Restore Products that contain the same defects, giving  rise to substantially the same claims.   51.  Adequacy.  Plaintiff is an adequate representative of the proposed class because  his interests do not conflict with the interests of the members of the class he seeks to represent.   Plaintiff has retained counsel competent and experienced in complex class action litigation, and  Plaintiff will prosecute this action vigorously by monitoring and directing the actions of class  counsel.  The interests of members of the class will be fairly and adequately protected by Plaintiff  and her counsel.   53.  In the alternative, the proposed class may be certified because:  a.  the prosecution of separate actions by the individual members of the proposed class  would create a risk of inconsistent or varying adjudication with respect to individual  class members which would establish incompatible standards of conduct for Rust- Oleum;  b.  the prosecution of separate actions by individual class members would create a risk  of adjudications with respect to them which would, as a practical matter, be  dispositive of the interests of other class members not parties to the adjudications,  or substantially impair or impede their ability to protect their interests; and  c.  Rust-Oleum has acted or refused to act on grounds generally applicable to the  proposed class, thereby making appropriate final and injunctive relief with respect  to the members of the proposed class as a whole.  54.  Plaintiff, on behalf of himself and the proposed class, hereby re-alleges the  paragraphs above as if fully set forth herein.   55.  Declaratory relief is intended to minimize “the danger of avoidable loss and  unnecessary accrual of damages.” 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,  Federal Practice and Procedure § 2751 (3d ed. 1998).   57.  Pursuant to 28 U.S.C. § 2201, the Court may “declare the rights and legal relations  of any interested party seeking such declaration, whether or not further relief is or could be sought.”   58.  Plaintiff seeks a declaration that Restore Products are defective as set forth herein.  The defective nature of Restore Products is material and requires disclosure to all consumers who  purchased them.   59.  The declaratory relief requested herein will generate common answers that will  settle the parties’ controversy. There is an economy to resolving these issues as they have the  potential to eliminate the need for continued and repeated litigation.  60.  Plaintiff, on behalf of himself and the proposed class, hereby re-alleges the  paragraphs above as if fully set forth herein.   61.  The Missouri Merchandising Practices Act (“the MMPA”) provides that “[t]he act,  use or employment by any person of any deception . . . [or] unfair practice, or the concealment . . .  of any material fact in connection with the sale or advertisement of any merchandise in trade or  commerce . . . is declared to be an unlawful practice.”  Mo. Rev. Stat. § 407.020.1.   63.  Under the MMPA, the term “merchandise” is broadly defined to include “any  objects . . . or services.”  Mo. Rev. Stat. § 407.020.4. Rust-Oleum’s Restore Products are  “merchandise” within the scope of the MMPA.   64.  The MMPA authorizes private causes of action, and class actions.  Mo. Rev. Stat.  §§ 407.025.1; 407.025.2. Plaintiff and members of the proposed class are individuals entitled to  bring suit and recover under the MMPA.   65.  Plaintiff purchased his Restore Products for personal use at his residence.   66.  When Rust-Oleum designed, developed, manufactured, marketed, and sold Restore  Products, it was involved in the conduct of trade and commerce under the MMPA.   67.  At the time Rust-Oleum developed, manufactured, marketed, and sold Restore  Products, it knew or should have known that they were defective.   68.  Nonetheless, Rust-Oleum concealed its knowledge of the defects from consumers  like Plaintiff and class members, and instead sold Restore Products as ordinary for normal use.   69.  Furthermore, Rust-Oleum misrepresented the characteristics of Restore Products.   70.  Rust-Oleum’s misrepresentations, omissions and concealments of material fact  constitute unfair and/or deceptive practices in violation of the MMPA.   72.  Plaintiff, on behalf of himself and the proposed class, hereby re-alleges the  paragraphs above as if fully set forth herein.   73.  As a result of its wrongful and fraudulent acts and omissions, as set forth above,  Rust-Oleum obtained monies that rightfully belong to Plaintiff and the class members to the  detriment of the Plaintiff and the class members.   74.  Rust-Oleum appreciated, accepted and retained the non-gratuitous benefits (i.e.  profits) conferred by Plaintiff and the class members who had no knowledge of the defective  characteristics of Restore Products.    75.  Plaintiff and the class members either (1) paid a higher price for Restore products  which actually had lower value or no value at all, or (2) paid Rust-Oleum monies for Restore  Products that Plaintiff and the class members would not have purchased had they been aware of  the defective characteristics of Restore Products.   76.  It would be inequitable and unjust for Rust-Oleum to retain these wrongfully  obtained profits.   77.  Rust-Oleum’s retention of these wrongfully-obtained profits would violate the  fundamental principles of justice, equity, and good conscience.   79.  Plaintiff, on behalf of himself and the proposed class, hereby re-alleges the  paragraphs above as if fully set forth herein.   80.  Mo. Rev. Stat. § 400.2-314, which codifies section 2-314 of the Uniform  Commercial Code (“UCC”), imposes an implied warranty of merchantability on the sale of goods  by a merchant.   81.  Under Missouri law, a plaintiff may recover under the provisions of section 400.2- 314 by proving:  a.  that a merchant sold goods;   b.  which were not “merchantable” at the time of sale;  c.  injury and damages to the plaintiff or his property;  d.  caused proximately and in fact by the defective nature of the goods; and   e.  notice to the seller of the injury.  Metty v. Shurfine Cent. Corp., 736 S.W.2d 527, 530 (Mo. Ct. App. 1987).   82.  Under Mo. Rev. Stat. § 400.2-104, Rust-Oleum is a merchant because it is “a person  who deals in goods of the kind.”   83.  Under Mo. Rev. Stat. § 400.2-105, which codifies UCC section 2-105, Restore  Products are a good, and Rust-Oleum’s sale of Restore Products to Plaintiff was the sale of goods  by a merchant.   84.  Under Mo. Rev. Stat. § 400.2-314, to be “merchantable” goods must be “fit for the  ordinary purposes for which such goods are used.”   86.  As a factual and proximate result of the defective nature of Restore Products,  Plaintiff suffered injury and damages.   87.  Accordingly, Plaintiff is entitled to recover for Rust-Oleum’s violation of Mo. Rev.  Stat. § 400.2-314.  Breach of Implied Warranty of Merchantability  (Plaintiff individually and on behalf of the class)   Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq.  (Plaintiff individually and on behalf of the class)   Plaintiff’s Purchase and Experience with Restore Products   Unjust Enrichment  (Plaintiff individually and on behalf of the class)   Violation of the Missouri Merchandising Practice Act (“MMPA”)  (Plaintiff individually and on behalf of the class)  