Harwood et al v. Uponor, Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MARK HARWOOD, and 	)
ASHLEY HARWOOD, 	)
)
)
Plaintiffs, 	) 	Case No. 25-CV-90-GLJ
)
v. 	)
)
UPONOR, INC., 	)
)
Defendant. 	)
OPINION AND ORDER
Plaintiffs Mark Harwood and Ashley Harwood bring this class action alleging
Defendant Uponor Inc.’s PEX pipes are defective and leak. Before the Court is the Motion
of Defendant Uponor Inc. to Strike Class Allegations [Docket No. 37]. For the reasons
stated below, the Court finds that the Motion is DENIED.
BACKGROUND
In 2016 Plaintiffs purchased a home in Coweta, Oklahoma, equipped with a potable
water supply system fitted with PEX flexible tubing. Docket No. 2, at ¶ 11. The PEX
products were designed, manufactured, marketed, distributed and sold by Defendant
Uponor, Inc. and installed in Plaintiffs’ residence. Id. at ¶ 8. Plaintiffs allege that Defendant
utilized a unique process to apply cross-linked color coatings to its PEX tubing which
damaged the tubing causing it to prematurely deteriorate, fail, and damage Plaintiffs’ and
the putative class members’ properties and plumbing systems. Id. at ¶¶ 9-13.
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Plaintiffs initiated this consumer class action on March 24, 2025, alleging three
causes of action against Uponor Inc. and Uponor North America, Inc.: (i) strict product
liability, (ii) breach of implied warranty of merchantability, and (iii) violations of the
Oklahoma Consumer Protection Act. 	Docket No. 2. Defendant Uponor North America,
Inc. was dismissed from this action on September 3, 2025. Docket No. 35. Defendant
Uponor Inc. moves to strike the class allegations in the Complaint. The Court finds the
motion should be denied.
ANALYSIS
“The class action is ‘an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S.
27, 33 (2013). Federal Rule of Civil Procedure 23(a) requires that a plaintiff seeking to
certify a class-action lawsuit establish:
(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) The representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a). “In other words, the class must demonstrate the requisite numerosity,
commonality, typicality, and adequacy to proceed with a class action.” CGC Holding Co.,
LLC v. Broad and Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (emphasis in original).
Plaintiffs “must also satisfy through evidentiary proof at least one of the provisions of Rule
23(b).” Comcast Corp., 569 U.S. at 33. “Although courts typically assess the viability of
class claims at the certification stage, district courts ‘are permitted to make such
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determinations on the pleadings and before discovery is complete when it is apparent from
the complaint that a class action cannot be maintained.’” Falhauber v. Petzl America, Inc.,
656 F. Supp. 3d 1257, 1271 (D. Colo. Feb 14, 2023) (quoting Elson v. Black, 56 F.4th
1002, 1006 (5th Cir. 2023)).
Federal Rule of Civil Procedure 12(f) authorizes the Court to “strike from a pleading
. . . any redundant, immaterial, impertinent, or scandalous matter” and may be used as a
vehicle in which to strike class allegations, essentially functioning as a “preemptive”
motion to deny class certification. Fed. R. Civ. P. 12(f); Murphy v. Aaron’s Inc., 2020 WL
2079188, at *4 (D. Colo. Apr. 30, 2020) (“Rule 12(f) is a permissible vehicle in which to
file an early motion to deny class certification.”). Such preemptive motions are not
precluded by Rule 23. See Wornicki v. Brokerpriceopinion.com, Inc., 2015 WL 1403814,
at *4 (D. Colo. Mar. 23, 2015) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d
935, 939 (9th Cir. 2009).
“In making the determination of whether striking . . . class allegations is appropriate,
‘courts apply the same standards applied at the certification stage, asking whether a
complaint’s allegations satisfy Federal Rule of Civil Procedure 23’s requirements.’” West
v. BAM Pizza Mgmt., Inc., 2025 WL 1737920, at *6 (D.N.M. June 23, 2025) (quoting
Faulhaber, 656 F. Supp. 3d at 1271). Courts in this circuit hold “motions to strike class
allegations to a high standard of proof.” Adams-Chevalier v. Spurlock, 2017 WL 5665149,
at *6 (D. Colo. Sept. 25, 2017) (quoting Wornicki, 2015 WL 1403814, at *4). Indeed, a
motion to strike is a drastic remedy which is “disfavored by courts[, and a] motion to strike
class allegations is ‘even more disfavored,’ because it seeks to ‘terminate the class aspects
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of litigation, solely on the basis of what is alleged in the complaint,’ and before a plaintiff
may complete discovery.” Tullie v. Quick Cash, Inc., 2014 WL 12782961, *2 (D.N.M.
Dec. 2, 2014) (quoting Francis v. Mead Johnson & Co., 2010 WL 3733023, at *1 (D. Colo.
Sept. 16, 2010)). “[T]o prevail on a motion to strike class allegations, a defendant ‘must
demonstrate from the face of plaintiffs’ complaint that it will be impossible to certify the
classes alleged by the plaintiffs regardless of the facts the plaintiffs may be able to prove.’”
Anderson Living Tr. v. WPX Energy Prod., LLC, 2016 WL 5376325, at *7 (D.N.M. Aug.
27, 2016) (quoting Francis, 2010 WL 3733023 at *1); Ramsay v. Frontier, Inc., 2020 WL
4557545, at *24 (D. Colo. July 30, 2020) (“[T]he Court will only grant Frontier’s motion
to strike if it is able to show conclusively that plaintiffs will be unable to establish facts
that would make class treatment appropriate.”).
Defendant moves to strike the class allegations in Plaintiffs’ Complaint arguing (i)
the proposed class members are not easily ascertainable, (ii) the class allegations would
require mini-trials on causation, (iii) the economic loss doctrine bars recovery in tort for
injury solely to the product itself, and (iv) Oklahoma law requires an identifiable injury.
The court finds these arguments unpersuasive at this stage of litigation.
Ascertainability. 	In the Tenth Circuit, ascertainability is treated “as a sub-
requirement of numerosity. To show numerosity, ‘there must be presented some evidence
of established, ascertainable numbers constituting the class[.]’” Evans v. Brigham Young
Univ., 2023 WL 3262012, *5 (10th Cir. May 5, 2023) (quoting Rex v. Owens ex rel Okla.,
585 F.2d 432, 436 (10th Cir. 1978)); Shook. v. El Paso, 386 F.3d 963, 972 (10th Cir. 2004)
(“[T]he lack of identifiability is a factor that may defeat Rule 23(b)(3) class certification.”).
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“For class members to ascertainable, the class definition (1) must be defined clearly and
cannot be defined too vaguely, and (2) be defined objectively and cannot be based on
subjective criteria, such as by a person’s state of mind.” Cline v. Sunoco, Inc. (R&M), 159
F.4th 1171, 1196 (10th Cir. 2025) (citing Mullins v. Direct Digit., LLC, 795 F.3d 654, 659-
60 (7th Cir. 2015)).
Here, the proposed class is defined as “[a]ll persons or entities who own homes or
other structures in Oklahoma with Uponor PEX used as the lines and components of a
potable water plumbing system.” Docket No. 2, at ¶ 22. Plaintiff asserts the members of
the class can be easily identified because, determining whether a building uses Uponor’s
PEX pipes, “requires only an observation of the building’s stub outs—the supply
connections to toilets, sink valves, and hot water heaters.” Docket No. 41, at p. 12.
Conversely, 	Defendant 	argues 	the 	proposed 	class 	is 	not 	easily 	ascertainable 	or
administratively feasible because: (i) Uponor’s PEX piping is not readily known or
observable by property owners, (ii) the pipes are typically acquired by builders or
contractors and installed into the property rather than sold directly to the property owners,
and (iii) it is insufficient for owners to look for the pipes and submit an affidavit. Docket
No. 38, at pp. 7-8.
Although not raised by either party, the Tenth Circuit recently declined to adopt
administrative feasibility as “a required element of [the acertainability] test, ‘particularly
given the strong criticism it has attracted from other courts.’”. Cline, 159 F.4th at 1195-96
(quoting 	Rikos 	v. 	Proctor 	& 	Gamble 	Co., 	799 	F.3d 	497, 	525 	(6th 	Cir. 	2015)).
“‘[A]dministrative feasibility may bear on whether class resolution is superior to individual
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resolution,’ but it should not operate as a trump card that outweighs all other factors under
Rule 23.” Id. at 1196 (quoting Freund v. McDonough, 114 F.4th 1371, 1378 (Fed. Cir.
2024)). Ultimately, at class certification Plaintiffs must show that “class members can
ultimately be identified (i.e., they are ascertain-able but not necessarily ascertained at the
time of class certification) using ‘reasonable – but not perfect – accuracy.’” Id. (quoting
Rikos, 799 F.3d at 526).
Defendants argue that various courts, at the class certification stage, have found a
class unascertainable or administratively infeasible in similar cases alleging defective
products. See Adams Point I, L.P. v. True-Flex Metal Hose Corp., 2020 WL 4199557, at
*8 (W.D. Pa. July 17, 2020) (finding unpersuasive plaintiffs’ argument that the class can
be ascertained by class members looking in their attic or basement); Lee-Bolton v. Koppers
Inc., 319 F.R.D. 346, 385 (N.D. Fla. Mar. 20, 2017) (finding no ascertainable class where
“there is no objective means for determining which property owners are within that class
short of . . . testing every individual home.”); In re Atlas Roofing Corp. Chalet Shingle
Prods. Liability Litig., 2017 WL 2540822, at * 8 (N.D. Ga. June 9, 2017) (finding plaintiffs
failed to demonstrate that the identification of defective shingles was administratively
feasible because the defendant did not sell shingles directly to the owner and the plaintiff
failed to put forth evidence on how class members could be ascertained.).1
1 Of note, the Adams case, arises out of the Third Circuit which has adopted a heightened
administrative feasibility requirement. Carrera v. Bayer Corp., 727 F.3d 300, 307-08 (3d Cir.
2013) (“A plaintiff does not satisfy the ascertainability requirement if individualized fact-finding
or mini-trials will be required to prove class membership. ‘Administrative feasibility means that
identifying class members is a manageable process that does not require much, if any, individual
factual inquiry.’”) (quoting William B. Rubenstein & Alba Conte, Newberg on Class Actions § 3:3
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Although these cases do highlight that Plaintiffs may have some difficulty in
ascertaining class members, the Court finds this is an issue more appropriately resolved on
Plaintiffs’ motion for class certification, after they have had the benefit of complete
discovery. See Carrico v. Uponor, Inc., 2025 WL 967542, at * 24-25 (M.D. Tenn. Mar.
31, 2025) (finding striking class allegations before the filing of a motion for class
certification on the basis of ascertainability premature despite Defendant’s argument that
“ascertaining the class members would require ‘a deep-dive into the unique condition of
each owner’s PEX and property, as well as the nature of each owner’s interactions if any
with [Defendants])’”) (alterations in original); 1625 Riviera Homeowners Association v.
Uponor, Inc., 2026 WL 776964, at *11 (N.D. Cal. Mar. 19, 2026) (“Uponor argues that the
class is not ascertainable. But . . . The Ninth Circuit has not adopted an ‘ascertainability’
requirement. . . . In short, even if ascertainability is a cognizable requirement, it is
premature to determine now whether that requirement can be met.”).
Predominance. 	Once the requirements of Fed. R. Civ. P. 23(a) are established,
Plaintiff must still satisfy the requirements of Fed. R. Civ. P. 23(b)(1), (2), or (3) to
maintain a class action. See Fed. R. Civ. P. 23(a) & (b). Rule 23(b)(3) permits class
certification where “the court finds that the questions of law or fact common to the class
(5th ed. 2011); see also C. Wright & A. Miller, Federal Practice & Procedure § 1760 & n.13 (4th
ed. 2023) (“The Third Circuit has adopted an enhanced ascertainability requirement, focusing on
the need for plaintiffs to demonstrate a reliable and administratively feasible method for
identifying class members in order to meet certification requirements.”). However, the Lee-Bolton
and Atlas Roofing decisions come out of the Eleventh Circuit, which has declined to adopt the
administrative feasibility requirement. Cherry v. Dometic Corp., 986 F.3d 1296, 1304 (11th Cir.
2021) (“We hold that administrative feasibility is not a requirement for certification under Rule
23. In doing so, we limit ascertainability to its traditional scope: a proposed class is ascertainable
if it is adequately defined such that its membership is capable of determination.”).
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members predominant over any questions affecting only individual members, and that a
class action is superior to the other available methods for fairly and efficiently adjudicating
the 	controversy.” 	Fed. 	R. 	Civ. 	P. 	23(b)(3). 	“[P]redominance 	may 	be 	destroyed 	if
individualized issues will overwhelm those questions common to the class[.]” Wallace B.
Roderick Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013).
“Put differently, the predominance prong asks whether the common, aggregation-enabling,
issues in the case are more prevalent or more important than the non-common aggregation-
defeating, individual issues.” In re SandRidge Energy, Inc. Sec. Litig., 2019 WL 4752268,
at *6 (W.D. Okla Sept. 30, 2019) (internal quotations and citations omitted).
Defendant asserts individual questions would predominant as the class allegations
would require mini trials on causation because “PEX products can leak for a myriad
reasons that have nothing to do with any defect in the product[.]” Docket No. 38, at p. 5.
In response Plaintiffs argue that the Court must accept the allegations in the Complaint as
true and, as such, striking the class allegations is improper here because they have alleged
Defendant’s manufacturing process resulted in defective PEX that were the direct and
proximate cause of damages. Docket No. 41, at pp. 10-11.
Defendants cite various cases in which courts, in the context of defective products
class actions, have found the question of causation predominates over any common
questions. See City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 640-641
(S.D. Fla. Feb. 10, 2010) (“[T]his case involves many different variables requiring
individualized proof. FlexPipe was manufactured and distributed by various entities over
a 15-year period. . . . In addition, each class member will likely have encountered different
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installation, maintenance, and environmental conditions in using FlexPipe. . . . [T]his case
simply involves more than can be decided through a showing of generalized proof that a
product is generally defective.”); Atlas Roofing Corp., 2017 WL 2540822, at *7-8 (“To
begin, there are numerous reasons a roof may fail, including commonplace events and
ordinary wear and tear. There are also numerous reasons a shingle may blister, crack, or
suffer from granule loss. Thus, it is likely that the Defendant will bring at least one
causation challenge against most—if not all—putative class members. Because the
causation determination for most putative class member will involve individualized
evidence, these individual causation questions will predominate at any trial.”); PB Prop.
Mgmt. v. Goodman Mfg. Co., L.P., 2016 WL 7666179, at *22 (M.D. Fla. May 12, 2016)
(“Even if Plaintiffs could produce evidence that Goodman’s copper evaporator coils
contain a common defect—the propensity to develop formicary corrosion and leak
refrigerant—the question of whether and why a particular coil failed are individual
questions that will be unique to each class member and would overwhelm the litigation.”).
Defendant also cites, West v. Chapparal Energy, LLC, 2018 8264338 (W.D. Okla.
Aug. 16, 2018), in which a sister court granted a motion to strike class allegations finding
causation issues will predominate over any common questions. However, the Court does
not find West entirely on par with this case. Indeed, the Plaintiffs in West alleged the
defendants, by injecting wastewater into the Arbuckle formation, caused earthquakes
resulting in damage to the putative class member’s properties. West, 2018 WL 8264338, at
*1. The causation issues associated with determining whether certain defendants caused a
particular set of earthquakes and whether those particular earthquakes caused damage to a
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putative class member’s property, is a far cry from the allegations in this case that
Defendant’s PEX pipes are defective at the outset and prematurely deteriorate and fail.
Docket No. 2, at ¶ 10. To be clear, it may very well be the case that questions regarding
the cause of certain leaks or property damage may predominate over the common questions
in this action. However, the Court cannot find at this early stage of litigation that class
certification is impossible. See 1625 Riviera, 2026 WL 776964, at *11 (“Whether this
substantial common question predominates over questions regarding the causation of
particular leaks cannot be determined at this early juncture. The Court cannot find at this
early stage that ‘the class requirements cannot possibly be met.’”) (quoting In re Wal-Mart
Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007)); See Carrico,
2025 WL 967542, at * 24-25 (Finding “determining whether defects in the PEX installed
in the putative members’ homes . . . caused the leaks would require individual inquiries[,]”
but allowing the action to proceed to class certification as narrowing the class may cure the
defect.); Francis v. APEX USA, Inc., 406 F. Supp. 3d 1206 (W.D. Okla. Feb. 5, 2019)
(“Defendants’ damages argument is also insufficient grounds upon which to strike the class
allegations. The fact that damages may have to be ascertained on an individual basis is not,
standing alone, sufficient to defeat class certification.”).
Economic Loss Doctrine. 	Next, Defendant maintains Plaintiffs’ strict product
liability claim must be stricken under the economic loss doctrine because the putative class
contains members that suffered harm only to the product itself. “[T]he purpose of the
economic loss rule is to preserve the boundary between tort and contract by precluding
recovery for purely economic losses where contract remedies exist[.]” Mills v. J-M Mfg.
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Co., Inc., 2025 OK 23, at ¶ 20, 567 P.3d 385, 390. Under Oklahoma law, the economic
loss doctrine provides that “no action lies in manufacturers’ products liability for injury
only to the product itself resulting in purely economic loss.” Waggoner v. Town & Country
Mobile Homes, Inc., 1990 OK 139, ¶ 22, 808 P.3d 649, 653 (citing E. River Steamship
Corp. v. Transmerica Delaval, Inc., 476 U.S. 858 (1986)). As such, manufacturers’ liability
claims are precluded where there is no personal injury or property damage, but only
damage to the product itself. Dutsch v. Sea Ray Boats, Inc., 1992 OK 155, ¶ 31, 845 P.2d
187, 193-94 (1992) (finding plaintiff could collect damages for personal injury and damage
to the product in a products liability action without bringing a separate breach of warranty
claim to recover damages for economic loss). “It is broadly recognized that ‘[i]n its most
widely accept form, the doctrine of economic loss bars the use of negligence or strict
liability theories for recovery of economic losses arising out of commercial transactions
where the loss is not a consequence of an event causing personal injury or damage to other
property.’” T.D. Williamson, Inc. v. Lincoln Elec. Automation, Inc., 2022 WL 16842907,
at *4 (N.D. Okla. Jan. 21, 2022) (quoting 6 Phillip L. Bruner & Patrick J. O’Connor, Jr.,
Bruner & O’Connor On Construction Law § 19:10 (Aug. 2021 update)) (alterations in
original).
Plaintiffs here have alleged they and the putative class suffered damage not just to
their PEX pipes, but also to their personal property such as their plumbing systems,
businesses, and personal residences. Docket No. 2, at ¶¶ 18 & 45. Although it seems likely
that the class will include individuals who suffered no harm beyond the product itself,
based on the Complaint the Court finds this issue is more appropriately addressed at the
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class certification as Defendant has not conclusively shown that Plaintiffs’ are unable to
establish facts making class certification appropriate.
Identifiable Injury. Lastly, Defendant argues Oklahoma law requires an identifiable
injury and, because the proposed class definition includes individuals or entities who
merely own homes or structures with Uponor PEX pipes, the Class includes individuals
who suffered no injury. Although Defendant does not couch this argument in terms of
Article III standing, standing is what is being challenged here. To establish standing,
Plaintiffs must show “injury in fact, a causal relationship between the injury and the
challenged action of the defendant, and a likelihood that the injury will be redressed by a
favorable decision.” Faustin v. City & Cnty. of Denver, Colo., 268 F.3d 942, 947 (10th Cir.
2001) (citing Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998)). “Every
class member must have Article III standing in order to recover individual damages.”
Transunion LLC v. Ramirez, 594 U.S. 413, 431 (2021). As such, “[c]ourts do not allow
consumers to bring claims against manufacturers for products that are perceived to be
harmful, but that have not actually cause[d] an identifiable injury.” Harrison v. Leviton
Mfg. Co., Inc., 2006 WL 2990524, at *5 (N.D. Okla. 2006).
Defendant, relying on Harrison, argues that the class allegations here must be
stricken because the putative class includes individuals who have suffered no harm. In
Harrison the plaintiff alleged he had not suffered any economic or personal injury at the
time he had filed the lawsuit, and the court found dismissal appropriate because the
“[p]laintiff’s 	statements 	that 	he 	will 	suffer 	future 	economic 	harm 	and 	potential
inconvenience from replacing any of defendant’s receptacles in his home d[id] not create
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a justiciable case or controversy.” Id. at *4. Here, Plaintiffs do not merely allege future
theoretical harm but instead allege there was damage to their and the class members’ PEX
pipes and properties. Docket No. 2, at ¶ 10 (“Uponor’s heat treatment during the coating
process is believed to have damaged the flexible tubing and caused it to prematurely
deteriorate and fail, causing water leaks and resulting damage and preventing plumbing
systems from functioning as they are intended.”). The Court finds these allegations
sufficient at this stage to establish Article III standing such that class certification does not
appear inconceivable. See Matzdorf v. Uponor, Inc., 2022 WL 17547941, at *5-6 (D. Colo.
Aug. 24, 2022) (denying Defendant’s motion to dismiss for lack of standing, finding
“Plaintiffs have alleged that their PEX pipes are suffering from damage and that their
homes and property have incurred damage as a result. How they determined such damage
exists and the degree of damage are not issues required to be addressed at the pleadings
stage, and Plaintiffs allegations of the injury themselves are sufficient to establish standing
at this juncture.”).
In sum, the Court finds Defendant has not met its “high standard of proof” to
“demonstrate from the face of plaintiffs’ complaint that it will be impossible to certify the
class [as] alleged by the plaintiffs.” Anderson Living Tr., 2016 WL 5376325, at *7.
Accordingly, the Court finds striking Plaintiffs’ class allegations at this juncture is
premature.
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CONCLUSION
For the reasons discussed herein, IT IS HEREBY ORDERED that the Motion of
Defendant Uponor Inc. to Strike Class Allegations [Docket No. 37] is hereby DENIED.
IT IS SO ORDERED this 9th day of April, 2026.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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