(NOTICE AND ABATEMENT CONSIDERATIONS INCLUDED)    12.  At all relevant times herein, Steven and Joanna Cone were the owners of the  residence located at 12237 Bethel Drive, Frisco, Collin County, Texas 75033 (the  “Property”).  Plaintiffs home contained multiple toilet tanks marked with the Vortens, Inc.  logo believed to be distributed or otherwise manufactured by Vortens and/or Sanitarios  Lamosa S.A. DE C.V.     13.  There are four model no. 3464 Vortens toilet tanks installed at the Property.  5   14.  The relevant Toilet Tanks installed at the Property were designed,  manufactured, distributed, sold, and/or otherwise placed into the stream of commerce by  the Named Defendants.  In the alternative, the Toilet Tanks were designed, manufactured,  distributed, sold, and/or otherwise placed into the stream of commerce by Defendant  Vortens, and contemporaneous with and/or subsequent thereto, Defendant Sanitarios, by  way of merger, consolidation, acquisition, and/or an asset purchase agreement expressly,  impliedly, and/or by operation of law acquired and assumed any and all of Vortens’  liabilities arising out of the design, manufacture, distribution, and sale of all or a portion of  Vortens’ toilet tanks, including any and all liabilities arising from any defective condition  and/or failure of the Toilet Tanks.   15.  Under any of these alternatives, both Defendants are legally liable for the  claims, causes of action, and damages asserted in this Complaint.  Vague Admissions of “Technical Issues.”   16.  Plaintiffs discovered that a manufacturing defect affecting multiple models  of toilet tanks designed, manufactured, marketed and distributed by the Named Defendants  caused such tanks to spontaneously crack, causing extensive damage both to real and  personal property.    17.  Indeed, through the release of a recent public announcement, Vortens  conceded in relevant part:  • “Tank models #3464 and #3412 may have been affected by certain  technical issues that allegedly caused fractures.”  • “Vortens has adjusted that manufacturing process to further minimize  the probability of technical issues that might affect them.”  6  See EXHIBIT A.   18.  Vortens’ representative Carlos Andrés Ríos Pinto further publically  confirmed:  “Vortens has ceased production of tank reference #3464 and has improved the  manufacturing process of tank reference #3412 to correct and eliminate the possible  technical issues that might affect them.” See EXHIBIT B.     19.  Upon information, investigation, and belief, the spontaneous cracking caused  by a defect in the manufacturing process is not limited to a single admitted production year  or to only two models. To the contrary, such manufacturing defect has manifested the same  failure mode fracturing in toilet tanks under the manufacturing, distribution, and marketing  control of the Named Defendants in production batches dating at least as far back as 2004.   20.  The four Vortens toilet tanks installed in the Plaintiffs’ home are all reference  #3464 models.  In light of the acknowledgement that “technical issues” in the  manufacturing of these models can cause spontaneous fractures, Plaintiffs realized their  property was in ongoing and imminent danger of extensive damage and that the continued  possession and use of such toilet tanks held a substantial risk or credible threat of  impending harm.    Defective and Unreasonably Dangerous Condition    21.  Expert investigation reveals that multiple toilet tank models manufactured,  marketed, and distributed by the Named Defendants over the course of several years are  prone to spontaneous and catastrophic failure and cracking.  The problem appears to begin  7  with a crack in the porcelain tank that holds the water, which ultimately causes more  extensive cracking and breakage due to the water pressure inside the tank.    22.  Examination and testing of the affected tanks establishes that the tanks were  either fired too rapidly or allowed to cool down too quickly or in an uneven fashion.  This  flaw in manufacturing caused residual stresses to be formed in the ceramic materials.    23.   23.  These stresses are concentrated around inclusions in the ceramic material  with large stress concentration factors.  This in turn causes minute cracks that propagate  due to normal and anticipated use.  During the continued emptying and fill cycles of the  water in the tank, the cyclic stress on the toilet tank continues to slowly propagate these  cracks until fracture and failure.    24.  This defective, unfit, and unreasonably dangerous condition exists in the  affected toilet tanks at the time same leave the possession or control of the manufacturer.    Knowledge of the Defective Condition   25.  Upon information and belief, prior to (and ongoing since) marketing and  selling the Toilet Tanks installed in the Plaintiffs’ Home, both Defendants possessed actual  or constructive knowledge, or otherwise knew or should have known, that the toilet tanks  in the production lines of certain models manufactured as early as 2004 and up through  2012, which included the Toilet Tanks at issue in this lawsuit, were manufactured in a  defective or faulty manner and/or were defective, unreasonably dangerous, and were  catastrophically failing and cracking, causing damages to the consumers and end users of  these products.  8   26.  Defendants had specific prior knowledge of such a defect in the  manufacturing process of these toilet tanks and the defective and unreasonably dangerous  condition in these toilet tanks based on their own test results and reports of the exact same  type of catastrophic failures and cracking in numerous other toilet tank models  manufactured during this time period.   27.  Despite such prior knowledge, both defendants made a conscious decision  not to issue or supply any warnings to the public or anyone else adequately alerting or  notifying installers or end users of these defects, or that same were manufactured in a  defective manner, prone to failure, or had a high risk of catastrophically failing and  cracking under normal, expected, and foreseeable uses prior to 2016.  Furthermore, these  Defendants made a conscious decision against openness as to the extent of the consumer  complaints as to all of the affected models and for the full scope of the affected years of  production.     28.  Despite such prior knowledge, both Defendants decided not to take any  feasible measures to promptly and timely correct the defective or faulty manner in which  the Toilet Tanks were manufactured, and they also made a conscious decision not to take  any feasible measures to promptly and timely correct the defective and unreasonably  dangerous condition in these toilet tanks or any feasible measures to promptly and timely  prevent catastrophic failures and cracking in these toilet tanks, including those installed in  and sold with the Plaintiffs’ Home.   29.  Instead of issuing any such warnings or taking any such feasible measures,  the defendants continued to market, distribute, and sell these defective toilet tanks for a  9  number of years without warning about the danger or timely making feasible modifications  to eliminate the danger.   30.  The defective and unreasonably dangerous condition in the production line  of toilet tanks manufactured 2004-2012, including those installed in the Plaintiffs’ Home,  was not obvious, open, visible, or discoverable by a reasonable inspection by any persons  or entities, including building contractors, plumbing contractors, installers, building  inspectors, or ordinary consumers, such as the Plaintiffs.   31.  Both Defendants knew or had reason to know that the Toilet Tanks installed  in and sold with the Plaintiffs’ Home were defective and likely dangerous for the use for  which they were supplied, and they had no reason to believe that those for whose use the  toilet tanks were supplied would realize their dangerous condition.   32.  Plaintiffs, and the anticipated Class Members, are faced with the unfair and  untenable choice of simply waiting for the failure to occur and risk extensive damage to  real and personal property or otherwise incur personal expenses to repair or remediate the  impending danger.  37.  Plaintiffs bring this cause of action individually and on behalf all other  similarly situated individuals and/or persons, pursuant to Federal Rule of Civil Procedure   38.  Plaintiffs anticipate defining this Class as:  Any and all consumers of toilet tank models #3464, #3412, #3404,  #3425, #3408 and #3571 manufactured, produced, designed,  marketed, or distributed by the named Defendants  between 2004-2012.  It is further anticipated that additional sub-class definitions and classifications may  ultimately be necessary upon class certification based upon the whether the toilet tanks  have already been replaced or remain in need of replacement.  11   39.  The following persons and/or entities are excluded from the Class:  a)  Persons and/or entities who timely opt-out of this proceeding  using the correct protocol for opting-out that will be formally  established by this Court;  b)  Persons and/or entities who have settled or otherwise resolved  claims against the Defendants arising out of or in connection with  individual water or flooding damages alleged to be caused by a  fractured tank of one of the relevant models, to the extent of the  resolution of those claims;  c)  Any and all federal, state, and/or local  governments, including,  but not limited to, their departments, agencies, divisions, bureaus,  boards, sections, groups, counsels and/or subdivisions; and  d)  Any currently sitting Texas state court judge and/or justice in the  current style and/or any persons within the third degree of  consanguinity to such judge and/or justice.   40.  In the unlikely event that the Court should determine not to certify a  nationwide Class, then in the alternative, Plaintiffs seek certification of a Texas-only class.   41.  Numerosity – Rule 23(a)(1). Plaintiffs do not know the exact size or identities  of the members of the proposed Class, since such information is in the exclusive control of  the Defendants.    42.  Upon information and belief regarding the manufacture, distribution,  marketing, and installation of affected Toilet Tanks by these Defendants, the class likely  encompasses thousands of consumers.  It I believed that the improper temperature and lack  of appropriate quality control in the manufacturing process extends at least as far back as  production references in 2004 with ongoing and continuing production using the same  defective processes up through 2012.  Plaintiffs believe that the Class can be readily  12  ascertained from Defendants’ books and records reflecting model manufacturing, sales,  and distribution accounts. Additionally, based on information and belief, the Class is  comprised of persons disbursed across the United States, as well as in the State of Texas.  As a result, joinder of persons is impracticable.    43.  The disposition of Plaintiffs’ claim will provide a substantial benefit to the  persons and the court system by using Rule 23 as the vehicle to adjudicate the rights of  thousands of individuals and/or entities in one cause of action. Joining and naming each  Class Member as a co-plaintiff is unreasonable and impracticable. Such a requirement  would only result in Defendants’ retention of money which is necessary to compensate this  Class.    44.  Predominance and Commonality – Rule 23(a)(2); (b)(3). As to the Class,  there are common questions of law and fact which predominate over any questions  affecting individual Class Members which include, but are not limited to:  (a)  Appropriate corporate liability structures in light of mergers,  acquisitions, sales, and manufacturing control;  (b)  Identification of the manufacturing process and quality control  processes for firing the ceramic toilet tanks by the Named  Defendants;  (c)  Whether the manufacturing process and quality control processes  for firing the ceramic toilet tanks by the Named Defendants was  improper or otherwise defective;  (d)  Identification of all toilet tank models and years of production  subjected to the improper manufacturing process;  13  (e)  Whether the designated Toilet Tanks are defectively designed and  unreasonably dangerous;  (f)  Whether the designated Toilet Tanks are defectively manufactured  and unreasonably dangerous;  (g)  Whether the designated Toilet Tanks are prone to failure;  (h)  Whether Defendants adequately warned, or continue to adequately  warn, distributors, installers, and consumers regarding the  defective nature of the designated Toilet Tanks;   (i)  Whether Defendants’ manufacture, sales, and distribution of the  designated Toilet Tanks occurred despite actual or constructive  knowledge of the defects;   (j)  Whether the Plaintiffs’ use of the designated Toilet Tanks was  foreseeable;  (k)  Whether Defendants will be in a better position than the consumer  to prevent circulation of defective products;  (l)  Whether Defendants can distribute the cost of compensating for  repair or replacement resulting from defects by charging for it in  the marketplace;  (m)  Whether the designated Toilet Tanks were inspected and reached  the user and/or consumer without substantial alteration in the  condition that the product was designed, manufactured, marketed,  sold, and/or distributed;  (n)  Whether Defendants failed to adequately warn consumers that the  designated Toilet Tanks were defective and/or reasonably  dangerous at the time it left Defendants’ control;  (o)  Whether the imposition of strict liability upon Defendants serves  as an incentive to properly design, manufacture, market, and/or  distribute safe products;  (p)  Whether restitution is an appropriate remedy for the Plaintiffs and  Class Members;  14  (q)  Whether remediation and removal of the designated Toilet Tanks  is an appropriate remedy to Plaintiffs and Class Members;   (r)  Whether Class Members are entitled to monetary damages for  Defendants’ wrongful conduct;  (s)  Whether Class Members are entitled to an injunction requiring  Defendants to cease and desist from selling, marketing,  distributing, and/or placing into the stream of commerce any  remaining inventory of the designated Toilet Tanks;  (t)  Whether Defendants are required to pay reasonable and necessary  attorney’s fees and costs associated with prosecuting this lawsuit.   45.  Furthermore, there are common questions of law and fact that are based in  the same core evidence for all members of the Class such as: (1) the timeline of available  knowledge to the Defendants regarding the defective designated Toilet Tanks; (2) the  scope of the sale and installation of designated Toilet Tanks; (3) the defect in designated  Toilet Tanks; and (4) the causal link between the deceptive, intentional and/or reckless  acts of the Defendants and the damages.     46.  Typicality – Rule 23(a)(3). The claims asserted by Plaintiffs are typical of  the claims of the Class.  The Plaintiffs and the proposed Class Members are persons or  legal entities who have one or more of the designated Toilet Tanks installed in their home  or building. To the extent necessary, sub-classes can be defined within the proposed class  definition.   47.  Adequacy of Representation – Rule 23(a)(4). Named Plaintiffs will fairly  and adequately represent the claims of the Class members because Named Plaintiffs have  an interest in seeing their claims through to resolution which will at the same time resolve  15  the claims of the class-members.  The Named Plaintiffs are comprised of consumers of the  designated Toilet Tanks, and have suffered the categories of injury alleged in this cause.     48.  Plaintiffs are represented by competent counsel who have extensive  experience in class action and consumer advocacy generally, and further who have  extensive and specific experience with claims regarding products liability generally and  the defective toilet tanks manufactured, distributed, sold, and installed by these Defendants  specifically.  Such counsel can bear the cost of prosecuting the class action to conclusion.   None of the Plaintiffs is antagonistic with the Class or has an interest in conflict with the  Class.   49.  Superiority – Rule 23(b)(3). This Class Action is not only the appropriate  method for the fair and efficient adjudication of the controversy, but is, in fact, the superior  method to all other available causes of action for the following reasons:  a)  The joinder of thousands of geographically diverse individual Class  Members is impracticable, cumbersome, unduly burdensome, and a  waste of judicial and/or litigation resources;  b)  There is no special interest by Class Members and individually  controlling prosecution of separate causes of action;  c)  Class Members’ individual claims now may be relatively modest  compared with the expense of litigating the claim, thereby making it  impracticable, unduly burdensome, expensive, if not totally  impossible, to justify individual Class Members addressing their loss;  d)  When Defendants’ liability has been adjudicated, claims of all Class  Members can be determined by the court and administered efficiently  in a manner which is far less erroneous, burdensome, and expensive  than if it were attempted through filing, discovery, and trial of all  individual cases;  16  e)  This Class Action will promote orderly, efficient, expeditious, and  appropriate adjudication and administration of class claims to promote  economies of time, resources, and limited pool of recovery;  f)  This Class Action will assure uniformity of decisions in litigation;  g)  Without the Class Action, Class Members will go without restitution,  remediation or money damages;  h)  Without this Class Action, the restitution and/or remediation damages  will be borne by the Class members and Defendants will reap the  benefits of profits from defectively designed, manufactured, marketed,  and/or distributed products;  i)  The resolution of this controversy through this Class Action presents  fewer management difficulties than individual claims filed in which  the parties may be subject to varying adjudications of their rights;  j)  Injunctive relief will be available to protect all future consumers  from the  sale, marketing, and/or distribution defective or  unreasonably dangerous products.   50.  A class action is a superior mechanism in this case to individual actions  because Defendants have acted in a way that is consistent as to all Plaintiffs and Class  Members as to the designated Toilet Tanks, and thus relief would apply to the Class as a  whole.  Furthermore, a class action is a superior mechanism to individualized adjudications  because prosecuting separate actions by individual class members risk creating inconsistent  rulings and standards of conduct.  51.  Plaintiffs incorporate by reference the allegations set forth in paragraphs 1  through 34 of this Complaint, as if fully set forth at length herein.   52.  Defendant Vortens and Defendant Sanitarios, are in the business of  designing, manufacturing, distributing, and selling, among other things, “ceramic” toilet  17  tanks for consumer use in residential homes, including toilet tanks of the same make and  model as the Toilet Tanks installed in and sold with the Plaintiffs’ Home.   53.  The Toilet Tanks installed in and sold with the Plaintiffs’ Home were  designed, manufactured, distributed, and/or sold by Defendant Vortens, and/or Defendant  Sanitarios.   54.  In the alternative, the Toilet Tanks were designed, manufactured, distributed,  and/or sold by Defendant Vortens, and contemporaneous with and/or subsequent thereto,  Defendant Sanitarios, by way of merger, consolidation, acquisition, and/or an asset  purchase agreement expressly, impliedly, and/or by operation of law acquired and assumed  any and all of Vortens’ liabilities arising out of the design, manufacture, distribution, and  sale of these two Vortens toilet tanks, including any and all liabilities arising from any  defective condition and/or failure in these toilet tanks.   55.  The Toilet Tanks installed in the Plaintiffs’ Home were unreasonably  dangerous, not reasonably safe for use, and were defective at the time they left the  possession or control of the manufacturer because they contained a manufacturing defect  and a marketing defect.   56.  The Toilet Tanks contained a manufacturing defect and were unreasonably  dangerous or otherwise unfit for the intended purpose because these products deviated in  their construction or quality from the specifications or planned output in a manner that  rendered them unreasonably dangerous or unfit. More specifically, tank references #3464,  #3412, #3404, #3425, #3408 and #3571 manufactured, produced, designed,  marketed, or distributed by the named Defendants between 2004-2012 were  18  subjected to improper temperature controls and further not properly tested under  appropriate quality control checks.  Such improper manufacturing resulted in defects in the  designated reference models unknown to the consumer, such as the Plaintiffs, but which  was known or should have been known by the Named Defendants.   57.  The Toilet Tanks also contained a marketing defect and were unreasonably  dangerous because the risk of harm was inherent in these products or could arise from the  intended or reasonably anticipated use of these products, and Defendants actually knew or  reasonably foresaw this risk of harm at the time the products were marketed, or the  Defendants, by the application of reasonably developed skill and foresight, should have  known about the inherent risk and danger in these products, but marketed and sold same  without any adequate warnings that would alert any party or end user that they were  manufactured in a defective manner, prone to failure, or had a high risk of catastrophically  failing and cracking, which rendered the toilet tanks unreasonably dangerous or unfit for  intended use to the ultimate user or consumer of the toilet tanks, such as the Plaintiffs.   58.  These Toilet Tanks were expected to and did reach the consumers, the  Plaintiffs and Class Members, without substantial change in the condition in which they  were sold.   59.  The manufacturing defect and the marketing defect in the Toilet Tanks  installed in and sold cause catastrophic failure and cracking, and were producing causes  and/or proximate causes of the damages of repair and remediation suffered by the  Plaintiffs’ as described herein.  Such damages include, but are not necessarily limited to,  19  additional costs for the repair and/or replacement of designated Toilet Tanks.  Additional  costs are further pending for final repair or removal of remaining designated Toilet Tanks.   60.  The cost of removing or remediating the designated Toilet Tanks is  prohibitive to many homeowners, and the act of shifting the costs such measures is the very  type of market failure and economic harm consumer protection laws was designed to  prevent.  Plaintiffs and the class members are left with few options – accept the risk to real  and personal property and any associated diminution in value of their structures, or  undertake personal costly measures to mitigate the damages caused by the Defendants’  conduct.   61.  As a direct, producing, and proximate result of the defective condition of the  designated Toilet Tanks, the Plaintiffs and Class Members have suffered damages in  amounts equal to inspection, replacement, and remedial installation plumbing services, and  further to any increase in risk insurability or alternative diminution in value, and neither  the defendants nor any other third party, person, or entity has compensated the Plaintiffs or  Class Members for such damages.  62.  Plaintiffs incorporate by reference the allegations set forth in paragraphs 1  through 34 and of paragraphs 51 through 61 of this Complaint, as if fully set forth at length  herein.   63.  Defendants are merchants with respect to goods of the kind as the designated  Toilet Tanks installed in and sold with the Plaintiffs’ Home.  20   64.  By selling these designated Toilet Tanks, Defendants impliedly warranted  that these tanks were fit for the ordinary purposes for which such goods are used.   65.  Defendants breached this implied warranty of merchantability.   66.  Pleading in the alternative, Defendant Vortens sold the designated Toilet  Tanks and breached the implied warranty of merchantability arising out of the sale of same,  the liability for which was expressly, impliedly, and/or by operation of law acquired and  assumed by Defendant Sanitarios.   67.  As a direct, producing, and proximate result of the defective condition of the  designated Toilet Tanks, the Plaintiffs and Class Members have suffered damages in  amounts equal to inspection, replacement, and remedial installation plumbing services, and  further to any increase in risk insurability or alternative diminution in value, and neither  the Defendants nor any other third party, person, or entity has compensated the Plaintiffs  or Class Members for such damages.  68.  Plaintiffs incorporate by reference the allegations set forth in paragraphs 1  through 34 and of paragraphs 51 through 61 of this Complaint, as if fully set forth at length  herein.   69.  Defendants owed the Plaintiffs and Class Members a duty of care to  manufacture, market, distribute, and sell the designated Toilet Tanks in a safe and non- defective manner so as to avoid injury or damage to the Plaintiffs, Class Members, and  their property.  21   70.  Defendants breached this duty of care and were negligent because these  designated Toilet Tanks were manufactured, marketed, distributed, and sold in a defective  and unreasonably dangerous condition that cause the toilet tanks to catastrophically fail  and crack.   71.  Specifically, Defendants were negligent by committing, among others, the  following negligent acts of commission and omission:  a. Negligently using a faulty manufacturing process to manufacture the  designated Toilet Tanks, which causes these toilet tanks to catastrophically  fail and crack because they underwent uneven heating/curing and were not  properly fired or cured during the manufacturing process;  b. Negligently failing to properly and timely inspect and test any of the toilet  tanks that were part of the production line of toilet tanks manufactured 2004- 2012 to ensure that these toilet tanks were manufactured in a safe and non- defective manner, and that the toilet tanks did not deviate in their  construction or quality from the specifications or planned output in a manner  that rendered them unreasonably dangerous or unfit for the intended purpose.  c. Negligently failing to warn or adequately warn any party, consumer, or end  user that the ceramic toilet tanks manufactured 2004-2014 were  manufactured in a defective manner, prone to failure, or had a high risk of  catastrophically failing and cracking, which render the designated Toilet  Tanks unreasonably dangerous to the Plaintiffs or are other unfit for the  intended purpose.  d. Committing other negligent acts of commission and omission that may be  revealed through further investigation, including discovery.   72.  Pleading in the alternative, Defendant Vortens breached the aforesaid duty  of care and was negligent for the reasons stated above, the liability for which was expressly,  impliedly, and/or by operation of law acquired and assumed by Defendant Sanitarios.   73.  As a direct and proximate result of the breach of duty and negligent acts of  commission and omission, the Plaintiffs and Class Members have suffered damages in  22  amounts equal to inspection, replacement, and remedial installation plumbing services, and  further to any increase in risk insurability or alternative diminution in value, and neither  the Defendants nor any other third party, person, or entity has compensated the Plaintiffs  or Class Members for such damages.  74.  Plaintiffs incorporate by reference the allegations set forth in all prior  paragraphs of this Complaint, as if fully set forth at length herein.   75.  As a direct and proximate result of the catastrophic failures and cracking in  the designated Toilet Tanks installed in and sold with the Plaintiffs’ Home and real  property owned by Class Members, the Plaintiffs and Class Members suffered damages as  described herein.   76.  Prior to marketing and selling the designated Toilet Tanks at issue in this  case, and/or prior to the catastrophic failures and cracking of same, both Defendants, upon  information and belief, knew for an extended period of time that the toilet tanks in the  production line manufactured between 2004 and 2012 were manufactured in a defective or  faulty manner and/or were defective, unreasonably dangerous, and were catastrophically  failing and cracking under normal, expected, and foreseeable uses, causing water and  property damages to the consumers and end users of these products.   77.  Defendants had specific prior knowledge of such a defect in the  manufacturing process of these toilet tanks and the defective and unreasonably dangerous  condition in these toilet tanks based on their own test results and reports of the exact same  23  type of catastrophic failures and cracking in numerous other toilet tanks manufactured,  distributed, and/or sold by them between 2004 and 2012.   78.  Upon information and belief, both Defendants had prior knowledge that there  was a high probability that the designated Toilet Tanks manufactured between 2004 and  2012 would catastrophically fail and crack under normal, expected, and foreseeable uses,  and cause damages to the ultimate user or consumer, including the Plaintiffs and Class  Members.   79.  Despite such prior knowledge, both Defendants knowingly and/or  intentionally made a conscious decision not to issue or supply any warnings adequately  alerting or notifying the public or any persons or entities, including building contractors,  plumbing contractors, installers, building inspectors, or ordinary consumers and end users  of these designated Toilet Tanks, such as the Plaintiffs, that these toilet tanks were  manufactured in a defective manner, prone to failure, or had a high risk of catastrophically  failing and cracking under normal, expected, and foreseeable uses.  Indeed, to the contrary,  the Named Defendants are providing limited information as to the scope of the defect, the  affected references, and the production span.   80.  Despite such prior knowledge, both Defendants also knowingly and/or  intentionally made a conscious decision not to take any feasible measures to promptly and  timely correct the defective or faulty manner in which the designated Toilet Tanks were  manufactured, and they also knowingly and/or intentionally made a conscious decision not  to take any feasible measures to promptly and timely correct the defective and  unreasonably dangerous condition in these designated Toilet Tanks or any feasible  24  measures to promptly and timely prevent catastrophic failures and cracking in these toilet  tanks   81.  Each of the Defendants also engaged in willful and wanton conduct and/or  were grossly negligent, in that the conduct of each Defendant in marketing and selling the  products at issue was so reckless or wanting in care that it constituted a conscious disregard  or indifference to the welfare, safety, and/or rights of persons exposed to such conduct,  including the Plaintiffs and Class Members.   82.  Pleading in the alternative, Defendant Vortens committed the willful,  wanton, and wrongful conduct and/or gross negligence described above, the liability for  which was expressly, impliedly, and/or by operation of law acquired and assumed by  Defendant Sanitarios.   83.  As a direct and proximate result of the aforesaid willful, wanton, and  wrongful conduct and/or gross negligence described above, the Plaintiffs and Class  Members are entitled to recover punitive damages from Defendant Vortens, and/or  Defendant Sanitarios.  84.  Plaintiffs incorporate by reference the allegations set forth in paragraphs 1- 34 and 51-83 of this Complaint as if fully set forth at length herein.   85.  The Plaintiffs and proposed Class Members  are “consumers” within the  meaning of § 17.45(4) of the Texas Deceptive Trade Practices Act (DTPA), in that they  are individuals who acquired by purchase the goods or products that form the basis of this  25  lawsuit, and suffered damages for which they did not receive compensation from any third  party, person, or entity.   86.  The Plaintiffs seek to recover damages against both Defendant Vortens and  Defendant Sanitarios under the Texas DTPA, Tex. Bus. & Com. Code Ann. § 17.41 et.  seq., because the Defendants knowingly and/or intentionally breached their implied  warranties with respect to the designated Toilet Tanks at issue in this lawsuit, and also  engaged in the following false, misleading, or deceptive acts or practices in the conduct of  their trade or business:  a. Representing that the designated Toilet Tanks at issue had characteristics,  ingredients, uses, or benefits which they do not;  b. Representing that the designated Toilet Tanks at issue were of a particular  standard, quality, or grade, when they were in fact of another.   87.  The Defendants engaged in the foregoing false, misleading, or deceptive acts  or practices because (a) they knew for an extended period of time that the designated Toilet  Tanks at issue were part of an entire production line of products that were manufactured in  a defective manner, prone to failure, and had a high risk of catastrophically failing and  cracking, which rendered the toilet tanks unreasonably dangerous to the Plaintiffs; and (b)  despite this knowledge, the Defendants (i) knowingly and/or intentionally did not warn the  public or any other person or entity about this unreasonably dangerous condition; (ii)  knowingly and/or intentionally used and promptly or timely failed to correct the defective  the faulty manner in which the designated Toilet Tanks were manufactured; (iii) knowingly  and/or intentionally failed to take any feasible measures to promptly and timely correct the  26  defective and unreasonably dangerous condition in these toilet tanks; and (iv) knowingly  and/or intentionally failed to take any feasible measures to promptly and timely prevent  catastrophic failures and cracking in these toilet tanks.   88.  The Defendants’ conduct in engaging in such false, misleading, or deceptive  acts or practices constituted a producing cause of the damages suffered by the Plaintiffs  such that the Plaintiffs have the right and standing to maintain an action against Defendants  under the Texas DTPA pursuant to § 17.50   89.  The Plaintiffs also have the right and standing to maintain an action against  Defendants under the Texas DTPA pursuant to § 17.50(a) (2) of the Act, because they  breached their implied warranties as stated in Count II of this complaint, and such a breach  constituted a producing cause of the damages suffered by the Plaintiffs at issue in this  lawsuit.   90.  With respect to the foregoing described warranties, the Defendants  knowingly breached their implied warranties because they had actual awareness of the  defective and unreasonably dangerous condition in the designated Toilet Tanks at issue  and the faulty manufacturing process that created this defective and unreasonably  dangerous condition, and Defendants also had actual awareness of their failure to warn  about and take feasible measures to timely correct or prevent this defective and  unreasonably dangerous condition and/or the aforesaid faulty manufacturing process.   91.  The Defendants also intentionally breached their implied warranties because  they had actual awareness of the conditions, defects, and failures in the toilet tanks as  described above, coupled with the specific intent that the consumer, such as the Plaintiffs,  27  act in detrimental ignorance of the unfairness of the Defendants’ conduct in manufacturing,  marketing, and selling the designated Toilet Tanks at issue, as evidenced by Defendants’  knowing and/or intentional failure to warn about the defective and unreasonably dangerous  condition in the toilet tanks at issue and the faulty manufacturing process that created this  defective and unreasonably dangerous condition.   92.  The Defendants’ violations of the Texas DTPA proximately caused the  Plaintiffs and Class Members damages in the form of inspection, replacement, and  remedial installation plumbing services and products, and further to any increase in risk  insurability or alternative diminution in value, and neither the defendants nor any other  third party, person, or entity has compensated the Plaintiffs or Class Members for such  damages.   93.  Pursuant to § 17.50(d) of the Texas DTPA, the Plaintiffs and Class Members  are entitled to be awarded court costs and reasonable and necessary attorneys’ fees.   94.  Because the Defendants' conduct as described above in this Count VI was  committed knowingly and/or intentionally, the Plaintiffs and Class Members are also  entitled to be awarded treble damages.   95.  Pleading in the alternative, Defendant Vortens violated the Texas DTPA as  described above, the liability for which was expressly, impliedly, and/or by operation of  law acquired and assumed by Defendant Sanitarios.   96.  Plaintiffs aver that notice under Section 17.505 prior to filing suit was both  impractical and unnecessary considering the public admissions of a defect in the affected  toilet tanks.  Furthermore, Plaintiffs have committed to resolution of the litigated issues not  28  only in their individual capacity but also as Class Representatives.  Therefore, Plaintiffs  are not in a position to individually resolve their claims to the detriment of the putative  class.   97.  In addition to the formal service required by the Federal Rules of Civil  Procedure regarding process, Plaintiffs are providing a courtesy copy of this Complaint  along with an explanatory letter in compliance with the Texas Deceptive Trade Practices  Act.     98.  Plaintiffs will further comply with the requirements of § 17.501 regarding  notice of this Complaint to the Consumer Protection Division within the deadlines  articulated therein. 