(pled in the alternative)   13.   Sealy manufactures and distributes for sale mattresses under various brand names,  including the Sealy brand, Sealy Posturepedic, Optimum, and Stearns & Foster.   15.   Sealy provides an express written warranty to every consumer who purchases one  of its mattress products, by which warranty Sealy suggests that it wants purchasers to be  completely satisfied with its mattresses.    16.   Sealy manufactures and distributes for sale mattresses throughout the United  States and provides an express limited warranty (“express warranty”) to the original purchaser of  the mattress and foundation set.  The express warranty covers manufacturing defects in a  mattress or foundation when the set is subject to proper handling and normal use in conjunction  with a bed frame that provides Continuous Support.   17.   The express warranty provides for the repair or replacement, at Sealy’s discretion,  of a mattress that exhibit excessive sagging, while excluding indentations caused by misuse,  abuse, factors other than a product defect, and normal body indentations as indicated by Sealy’s  provided measurements.   18.  The express warranty was drafted entirely by Sealy and neither Plaintiff nor any  Class member had any input or ability to negotiate any portion of the warranty.   19.   A consumer who wants to make a warranty claim must first, contact the retail  store where he/she purchased their sleep set, and if he/she cannot reach the store, write directly to  Sealy’s the Consumer Services Department.   20.   In or about January 2012, Plaintiff purchased a Sealy brand Stearns & Foster  mattress (the “Mattress”) from a Mattress Firm store in Overland Park, Kansas.  The mattress has  a 10-year limited warranty.   22.  After much difficulty, this Original Mattress was eventually replaced with another  mattress on or about January 12, 2016, at additional cost to Plaintiff.   23.  The Replacement Mattress has a similar defective condition resulting in excessive  sagging, so Plaintiff again contacted the Mattress Firm store and submitted a warranty claim.   24.   As Sealy’s instructions provide, claims pursuant to Sealy’s warranty must be  made through the retail store where the consumer purchased the concerned Sealy mattress.  The  retail store has its authorized inspector determine the validity of consumers’ claims made  pursuant to Sealy’s warranty.  Thus, the retail store is an independent co-warrantor of the Sealy  mattresses.   25.   Mattress Firm and Sealy denied Plaintiff’s warranty claim, refusing to repair or  replace Plaintiff’s mattress, refusing to provide an adequate explanation, and ultimately refusing  to respond to Plaintiff’s inquiries.   26.   On information and belief, valid warranty claims by consumers are routinely  ignored or denied by the Defendants without justification.   27.   As a result of Defendants’ conduct, Plaintiff and other Class members are  damaged and have suffered economic loss, in terms of, inter alia, being left with a defective  product after their valid warranty claims are denied, and being out-of-pocket for the time and  associated costs of making their claims.  28.   Plaintiff brings this suit as a class action pursuant to Rule 23 of the Federal Rules  of Civil Procedure, on behalf of himself and all other similarly situated persons.   30. The Rule 23(b)(2) Injunctive Relief Class, with respect to Sealy, initially may be  defined as follows: All original purchasers of a mattress manufactured by Sealy, who purchased  a Sealy mattress in the United States on or after January 12, 2016, and have maintained original  ownership of said mattress.  Excluded from the Class are the current and former directors,  officers, employees, agents and representatives of Sealy, and members of their immediate  families, and the Court and Court personnel.     31.  A Rule 23(b)(2) Injunctive Relief Subclass with respect to Mattress Firm, initially  may be defined as follows: All original purchasers of a mattress manufactured by Sealy, who  purchased from Mattress Firm a Sealy mattress in the United States on or after January 12, 2016,  and have maintained original ownership of said mattress.  Excluded from the Class are the  current and former directors, officers, employees, agents and representatives of Sealy, and  members of their immediate families, and the Court and Court personnel.   32.   The Rule (b)(3) Class initially may be defined as follows: All original purchasers  of a mattress manufactured by Sealy, who purchased a Sealy mattress in the United States on or  after January 12, 2016, and made a warranty claim that was denied, or about which Sealy refused  to respond, without justification.  Excluded from the Class are the current and former directors,  officers, employees, agents and representatives of Sealy, and members of their immediate  families, and the Court and Court personnel.    34.   A Rule (b)(3) Kansas Subclass with respect to Sealy, initially may be defined as  follows: All original purchasers of a mattress manufactured by Sealy, who purchased a Sealy  mattress in Kansas on or after January 12, 2016, and made a warranty claim that was denied, or  about which Sealy refused to respond, without justification.  Excluded from the Class are the  current and former directors, officers, employees, agents and representatives of Sealy, and  members of their immediate families, and the Court and Court personnel.   35.  A Rule 23(b)(3) Kansas Subclass with respect to Mattress Firm, initially may be  defined as follows: All original purchasers of a mattress manufactured by Sealy, who purchased  from Mattress Firm a Sealy mattress in the United States on or after January 12, 2016, and made  a warranty claim that was denied, or about which Sealy refused to respond, without justification.   Excluded from the Class are the current and former directors, officers, employees, agents and  representatives of Sealy Corporation, and members of their immediate families, and the Court  and Court personnel.   36.  Numerosity.  The proposed Classes are sufficiently numerous such that joinder is  impractical.  Upon information and belief, the Rule 23(b)(2) Injunctive Relief Class consists of  tens of thousands of members.  Upon information and belief, the Rule 23(b)(3) Class consists of  at least hundreds of members.   38.   Typicality.  Plaintiff has the same interests in this matter as all other Class  members, and his claims are typical of other Class members.   40.   Superiority.  A class action is superior to other available methods for the fair and  efficient adjudication of this controversy because the joinder of all members of each Class is  impracticable.  Furthermore, the adjudication of this controversy through a class action will  avoid the possibility of an inconsistent and potentially-conflicting adjudication of the claims  asserted herein. There will be no difficulty in the management of this action as a class action.   41.   Defendants have acted or refused to act on grounds generally applicable to all  Class members, thereby making appropriate final and declaratory relief with respect to the Rule  23(b)(2) Injunctive Relief Classes.  42.   Plaintiff repeats and re-alleges the allegations contained in paragraphs 1 through  41 of this Complaint as if fully set forth herein.   43.   Sealy and Mattress Firm provide a limited written warranty (“express warranty”)  to original purchasers of Sealy mattresses.   44.   The express warranty was a part of the basis of the bargain for Plaintiff and the  other Class members in purchasing Sealy mattress products.   45.   The express warranty extends to original purchasers and, thus, Plaintiff and the  other Class members are in privity with Sealy.   47.   Defendants have been put on reasonable notice of their breach of express  warranty by virtue of Plaintiff’s warranty claim and subsequent communications between  Plaintiff and Defendants, including calls and emails between Plaintiff and the Defendants’  customer service departments prior to the filing of this Complaint.   48.  Upon visiting the Mattress Firm store to discuss the ongoing issue, an employee  and agent of Mattress Firm admitted to Plaintiff that the model of the Mattress in question has  pervasive defects affecting a large percentage of said model.   49.   As a direct result of the failure of Sealy’s mattress products to perform as  expressly warranted and Defendants’ unjustified denial of warranty claims, Plaintiff and the  other members of the Rule 23(b)(3) Class and Subclass have been damaged and have suffered  economic loss, in terms of, inter alia, being left with a defective product after their valid  warranty claims are denied, and being out-of-pocket for their time and costs incurred.  WHEREFORE, Plaintiff requests that a Rule 23(b)(3) Class and Subclass (as defined  above) be certified with Plaintiff appointed as the Representative of both Classes, that judgment  be granted against Defendants in an amount that is fair and reasonable, together with  prejudgment interest as provided by law, and that Plaintiff receives such other relief as the Court  deems proper and just under the circumstances, including payment of costs and expenses in  filing this suit, and reasonable attorneys’ fees.  51.   The Uniform Commercial code § 2-313 provides that an affirmation of fact or  promise made by the seller to the buyer that relates to the goods or becomes part of the basis of  the bargain, creates an express warranty that the goods shall conform to the promise.   52.   The Magnuson-Moss Warranty Act provides for a civil action by consumers for  the failure of a supplier, warrantor, or service contractor, to comply with a written warranty  arising under state law.   53.   As demonstrated above, Defendants have failed to comply with the terms of the  express warranty with regard to the defective Sealy mattresses.   54.   Sealy’s mattress products are consumer products as defined in § 2301(a) of the  Magnuson-Moss Warranty Act.   55.   Defendants are warrantors.    56.   Defendants breached express warranties because, as alleged herein, they failed to  offer repairs or replacement products to Plaintiff and the other members of the Rule 23(b)(3)  Class and Subclass, pursuant to the terms of the express warranty.   58.   Plaintiff repeats and re-alleges the allegations contained in paragraphs 1 through  57 of this Complaint as if fully set forth herein.   59.   The Kansas Consumer Protection Act (“KCPA”), K.S.A. §§ 50-623, et seq.,  prohibits the use of deceptive an unconscionable acts and practices before, during, or after a  consumer transaction in the state of Kansas.   60.   Plaintiffs are each a “consumer” for purposes of the KCPA.   61.   Defendants are each a “supplier” for purposes of the KCPA.   62.  The mattress purchases described herein were “consumer transactions” for  purposes of the KCPA.   63.  As a direct and proximate result of the Defendants’ conduct, as alleged herein,  Plaintiffs have been damaged and are “aggrieved.”   64.  The KCPA should be liberally construed to promote its policies of protecting  consumers against suppliers that commit deceptive and unconscionable acts and practices.   K.S.A. § 50-623, et seq; Williamson v. Amrani, 283 Kan. 227, 234 (2007).   65.  Violations of the KCPA can occur before, during, or after the consumer  transaction.     67.  Defendants’ violations of K.S.A. § 50-627, Unconscionable Acts and Practices,  include, but are not limited to, the following:  a. The consumer was unable to receive a material benefit from the subject of the  transaction, in violation of K.S.A. § 50-627(b)(3);  b. The transaction the supplier induced the consumer to enter into was excessively  onesided in favor of the supplier, in violation of K.S.A. § 50-627(b)(5);  c. The supplier made misleading statements of opinion on which the consumer  was likely to rely to the consumer's detriment, in violation of K.S.A. § 50- 627(b)(6); and  d. The supplier excluded, modified or otherwise attempted to limit either the  implied warranties of merchantability and fitness for a particular purpose or any  remedy provided by law for a breach of those warranties, in violation of K.S.A. §  50-627(b)(7).   68.  Plaintiffs are authorized to recover their actual damages and/or statutory damages  in the amount of $10,000.00 per violation.  K.S.A. §§ 50-634 and 50-636.   69.  In this case, Plaintiffs’ actual damages include, but are not limited to, their  emotional distress.   71.   Plaintiff repeats and re-alleges the allegations contained in paragraphs 1 through  70 of this Complaint as if fully set forth herein.   72.   Defendants have been unjustly enriched by retaining moneys from the sales of  Sealy mattresses that are defective in quality and workmanship.   73.   Plaintiff and the other Class members have conferred benefits upon Defendants  by purchasing Sealy mattress products.   74.   Defendants have knowingly and willingly accepted these benefits from Plaintiff  and the other Class members.   75.   Under the circumstances, it is inequitable for Defendants to retain these benefits  at the expense of Plaintiff and the other Class members.   76.   Defendants have been unjustly enriched at the expense and detriment of Plaintiff  and the other Class members by wrongfully collecting and retaining money to which Defendants,  in equity, are not entitled.   77.   Plaintiff and the other Class members are entitled to recover from Defendants all  amounts wrongfully collected and improperly retained by Defendants, plus interest thereon.   79.   Plaintiff repeats and re-alleges the allegations contained in paragraphs 1 through  78 of this Complaint as if fully set forth herein.   80.   There is an actual controversy between Defendants, on the one hand, and Plaintiff  and the other Class members, on the other hand, concerning the validity of Defendants’ asserted  defenses whenever a stain is on a Sealy mattress, to otherwise valid warranty claims.   81.   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.”   82.   Defendants have wrongfully denied warranty claims based solely upon  unjustifiable reasons, despite the root cause of the sagging or indentation being due to a defect in  quality and workmanship of the mattress products.   84.   Plaintiff further requests that this court declare:  (a) That the warranty against failures in quality or workmanship is not voided by  spills, burns, bent or broken border/grid wires, mattress or foundation damage due  to abuse or abnormal use, damage due to use with inappropriate foundation, and  damage due to bed frames that do not provide Continuous Support, unless such  condition directly caused the covered warranty defect in quality or workmanship  complained of by the consumer.   85.   Plaintiff asks the Court to declare that a valid warranty claim for defects in quality  or workmanship is not defeated simply because a separate condition exists in the mattress for  which a warranty claim is not being made.  WHEREFORE, Plaintiff requests that a Rule 23(b)(2) Injunctive Relief Class and  Subclass (as the classes are defined above) be certified with Plaintiff appointed as the  Representative of both Classes, that the Court issue an injunction requiring Defendants to abide  by the terms of the written warranty in the manner set forth above, that Defendants be financially  responsible for notifying all Class members that their warranty is not void as against failures in  quality or workmanship regardless of the condition of their mattress otherwise, that judgment be  granted against Defendants in an amount that is fair and reasonable, together with prejudgment  interest as provided by law, and that Plaintiff receives such other relief as the Court deems  proper and just under the circumstances, including payment of costs and expenses in filing this  suit, and reasonable attorneys’ fees. 