Dishman et al v. Atlas Roofing Corporation

Filing 64

OPINION AND ORDER denying Motion to Certify Class (57) in case 1:13-cv-02195-TWT and (296) in case 1:13-md-02495-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/8/2017. Associated Cases: 1:13-md-02495-TWT, 1:13-cv-02195-TWT(jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE ATLAS ROOFING
MDL DOCKET NO. 2495
CORPORATION CHALET SHINGLE 1:13-md-2495-TWT
PRODUCTS LIABILITY
LITIGATION
DIANE DISHMAN, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:13-CV-2195-TWT

ATLAS ROOFING CORPORATION,
Defendant.

OPINION AND ORDER

This is a multi-district class action arising out of the marketing and sale of
allegedly defective roofing shingles. It is before the Court on the Plaintiffs Diane
Dishman, Rodney Dishman, and Anthony Costanzo’s Motion for Class Certification
[Doc. 57]. For the reasons set forth below, the Plaintiffs’ Motion for Class
Certification [Doc. 57] is DENIED.

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I. Background
The Plaintiffs and putative class members are purchasers of Atlas Chalet and
Stratford Shingles (“Shingles”).1 The Defendant Atlas Roofing Corporation (“Atlas”)
designed, manufactured, and sold the Shingles.2 Atlas represented and continues to
represent that the Shingles are durable, reliable, free from defects, and compliant with
industry standards and building codes.3 The Plaintiffs allege that the Shingles were
defective at the time of sale due to a flaw in the manufacturing process.4 Specifically,
the manufacturing process “permits moisture to intrude into the Shingles, creating a
gas bubble that expands when the Shingles are exposed to the sun resulting in
cracking, blistering and premature deterioration of the Shingles.”5 This premature
deterioration supposedly leads to damage to other components of the house or
building, including the interior.6 The Plaintiffs further allege that despite Atlas’s

1

It should be noted that – for purposes of this lawsuit – Chalet/Stratford
Shingles are indistinguishable. See Thomas Dep., at 35. The differences between the
two Shingles relate to aesthetics, not design. Id.
2

Compl. ¶ 2.

3

Id.

4

Id. ¶ 3.

5

Id. ¶ 54.

6

Id. ¶ 3.

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knowledge of the defect, Atlas did nothing to correct the defective design and
continued to market and warrant the Shingles as durable.7
Atlas provided four different limited warranties throughout the eleven-year
class period.8 The initial limited warranty was a twenty-five-year warranty, and it
provided that the Shingles were “free from manufacturing defects, which would
reduce the useful life of the product.”9 The warranty was transferrable to future
property owners.10 On January 1, 2002, Atlas began issuing thirty-year limited
warranties.11 The thirty-year warranty provided that the Shingles were “free from
manufacturing defects, which results in leaks.”12 Atlas also limited the number of
transfers of the warranty. For the thirty-year warranty, the coverage could only be
transferred once and the second owner had to provide Atlas notice of the transfer of
coverage.13

7

Id. ¶¶ 7, 15, 18.

8

Mot. for Class Cert., Exs. Tab 23-26.

9

Id., Ex. Tab 23.

10

Id.

11

Id.

12

Id., Exs. Tab 24-26.

13

Id.

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The named Plaintiffs Diane and Rodney Dishman, who are residents of Dallas,
Georgia, purchased their Chalet Shingles in 2010.14 Three years later, they noticed that
their Shingles were suffering from blistering and granule loss and filed a warranty
claim with Atlas.15 Atlas denied the claim, stating that the blistering was cosmetic and
not the result of a manufacturing defect.16 The other named Plaintiff Anthony
Costanzo, who is a resident of Douglasville, Georgia, had Chalet Shingles installed
on his original construction home.17 In 2010, the Plaintiff discovered a water leak in
his home, which he states was caused by blistering, cracking, and granule loss on his
Shingles.18 Like the Dishmans, he filed a warranty claim with Atlas, but his claim was
denied.19
On July 1, 2013, the named Plaintiffs filed suit on behalf of themselves and
others similarly situated in the state of Georgia.20 They seek to bring their suit as a
class action. Because similar consumer class actions were filed in five other states, the
14

Compl. ¶ 22.

15

Id. ¶ 23.

16

Id.

17

Id. ¶ 24.

18

Id. ¶ 25.

19

Id.

20

See [Doc. 1] under No. 1:13-cv-02195-TWT.

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Judicial Panel on Multidistrict Litigation transferred all related class actions pending
in federal court to this Court for coordinated or consolidated pretrial proceedings.21
After the Motion to Dismiss stage, the Plaintiffs’ remaining claims in this class action
are for Breach of Express Warranty (Count I), Breach of Implied Warranty of
Merchantability (Count II), and Fraudulent Concealment (Count VI).22 As damages,
the Plaintiffs seek the cost of replacing the Shingles. They propose two methods for
calculating the replacement costs. First, they state that a common formula that
calculates replacement costs on a square foot basis could be employed, allowing class
members to recover by merely showing the size of their roofs.23 This method accounts
for “each class member’s damages are the expense of removing and discarding the
defective shingles, including the cost of the replacement shingles plus all associated

21

See Transfer Order [Doc.1] under No. 1:13-md-02495-TWT.

22

See Order granting in part and denying in part the Defendant’s Motion
to Dismiss [Doc. 45] under No. 1:13-cv-02195-TWT.
23

See Mot. for Class Cert., Ex. Tab 21, at 7 (stating that “[s]hingle
replacement for most homes will cost $2.85 to $3.35 per square feet of roof area, with
this square foot cost modified up or down based on a standard location adjustment
factors that accounts for variations in local labor and material costs”).
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labor costs.”24 In the alternative, they propose that individual class members can prove
their actual replacement costs through a claims process.25
II. Class Certification Standard
To maintain a case as a class action, the party seeking class certification must
satisfy each of the prerequisites of Rule 23(a) and at least one of the provisions of
Rule 23(b).26 Rule 23(a) sets forth the four prerequisites to maintain any claim as a
class action:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if: (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.27
These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.28 Failure to establish any one of the

24

Mot. for Class Cert., at 35-36.

25

Id. at 36.

26

Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004), abrogated
in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008).
27

FED. R. CIV. P. 23(a).

28

Cooper v. Southern Co., 390 F.3d 695, 711 n.6 (11th Cir. 2004),
overruled in part on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58
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four factors precludes certification. In addition, under Rule 23(b), the individual
plaintiffs must convince the Court that: (1) prosecuting separate actions by or against
individual members of the class would create a risk of prejudice to the party opposing
the class or to those members of the class not parties to the subject litigation; (2) the
party opposing the class has refused to act on grounds that apply generally to the class,
necessitating final injunctive or declaratory relief; or (3) questions of law or fact
common to the members of the class predominate over any questions affecting only
individual members and that a class action is superior to other available methods for
fair and efficient adjudication of the controversy.29

The party seeking class

certification bears the burden of proving that these requirements are satisfied.30
The decision to grant or deny class certification lies within the sound discretion
of the district court.31 When considering the propriety of class certification, the Court
should not conduct a detailed evaluation of the merits of the suit.32 Nevertheless, the

(2006).
29

FED. R. CIV. P. 23(b).

30

General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Valley
Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
31

Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
32

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

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Court must perform a “rigorous analysis” of the particular facts and arguments
asserted in support of class certification.33 Frequently, that “rigorous analysis” will
entail some overlap with the merits of the plaintiff’s underlying claim.34
III. Discussion

A. Daubert Motions
In support of their Class Certification Motion, the Plaintiffs rely on the expert
testimony of Dean Rutila and Anthony Mattina. The Defendant has filed Daubert
motions challenging the admissibility of both Rutila’s and Mattina’s opinions.
“Because this expert testimony is both challenged and critical to class certification,
the Court cannot grant certification without first engaging in the analysis required by
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.”35
Federal Rule of Evidence 702 governs the admission of expert opinion
testimony. Pursuant to that rule, before admitting expert testimony a court must
consider: (1) whether the expert is competent to testify regarding the matters he
33

Falcon, 457 U.S. at 161; Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th

Cir. 1984).
34

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-52 (2011).

35

In re Delta/AirTran Baggage Fee Antitrust Litigation, No. 1:09-md-2089TCB, 2016 WL 3770957, at *6 (N.D. Ga. July 12, 2016) (citation omitted) (quoting
Local 703, I.B. of T. Grocery & Food Emps. Welfare Fund v. Regions Fin. Corp., 762
F.3d 1248, 1258 n.7 (11th Cir. 2014)).
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intends to address; (2) whether the methodology used to reach his conclusions is
sufficiently reliable; and (3) whether the testimony is relevant, in that it assists the jury
to understand the evidence or determine a fact in issue.36 In ruling on the admissibility
of expert testimony, “[t]he focus must be ‘solely’ on the expert’s ‘principles and
methodology, not on the conclusions that they generate.’”37 If the expert predicates his
testimony on an assumption that is belied by the evidence, the expert’s testimony is
properly excluded.38 The party offering the expert's testimony has the burden to prove
it is admissible by a preponderance of the evidence.39
1. Dean Rutila
The Court finds that Mr. Rutila is qualified to render an expert opinion
regarding the alleged premature failure of the Shingles. Rutila is a civil engineer and
senior principal at Simpson Gumpertz & Heger (“SGH”).40 He has an undergraduate

36

FED. R. EVID. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

589 (1993).
37

KW Plastics v. United States Can Co., 131 F. Supp. 2d 1289, 1292 (M.D.
Ala. 2001) (quoting Daubert, 509 U.S. at 594-95).
38

Ferguson v. Bombardier Services Corp., 244 Fed Appx. 944, 949 (11th

Cir. 2007).
39

Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

40

Mot. for Class Cert., Ex. Tab 21, at 1.

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and graduate degree in civil engineering from the University of Michigan and is a
licensed professional civil engineer.41 Moreover, he has over thirty years of experience
in the construction of buildings, including the investigation and repair of deteriorated
roofing.42 At SGH, he has supervised many investigations into building failures.43
The Defendant first seeks to exclude Rutila’s opinion that all Chalet/Stratford
Shingles have effectively failed. Specifically, the Defendant argues that his testimony
as to “effective failure” or “premature failure” will be unhelpful and confusing to the
trier of fact, because “merely predicting that all the shingles will one day fail at some
unknown time in the future does not answer any potentially relevant questions or
disputed issues.”44 Whether Rutila’s opinion regarding premature failure assists the
trier of fact depends on its relevancy. “Expert testimony which does not relate to any
issue in the case is not relevant and, ergo, non-helpful.”45 “In addition to being
relevant, expert testimony should concern ‘matters that are beyond the understanding

41

Id.

42

Id.

43

Id.

44

Def.’s Resp. Br., at 57.

45

Kilgore v. Reckitt Benckiser, Inc., 917 F. Supp. 2d 1288, 1292 (N.D. Ga.
2013) (quoting Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F. 3d 1333,
1347 (11th Cir. 2003)).
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of the average lay person.’”46 “Proffered expert testimony generally will not help the
trier of fact when it offers nothing more than what lawyers for the parties can argue
in closing arguments.”47
Here, Rutila tenders several opinions in support of his ultimate conclusion that
the Shingles have prematurely failed. One such opinion is that the Shingles should
have a service life of twenty-five to thirty years.48 This opinion is based on an industry
standard – ASTM D3462 – and SGH’s experience testing other shingles that meet the
standard.49 Thus, when stating that the Shingles have prematurely failed, Rutila opines
that the Shingles cannot be expected to fulfill their service life.50 This opinion is
central to the Plaintiffs’ contention that the Shingles need to be replaced and helps
resolve an important, disputed issue: the Shingles’ durability. Whether a shingle is
durable is not something a reasonable lay person not versed in roofing and building

46

Id. (quoting United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir.

2004)).
47

Id. (quoting Frazier, 387 F.3d at 1262-63).

48

Mot. for Class Cert., Ex. Tab 21, at 45.

49

See id. (“Shingles that meet the ASTM D3462 standard are produced by
other manufacturers and our experience shows a reasonable expectation of the 25 to
30 yr service life based on over 20 yrs of SGH experience testing and specifying such
shingles.”).
50

Id.

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standards could easily resolve.51 Thus, the Court rejects the Defendant’s Motion in this
regard.
The Defendant next contends that Rutila’s opinions are based on an unreliable
methodology. “To aid trial courts in assessing the reliability of a proposed expert’s
methodology, Daubert sets forth several non-exclusive factors that must be
considered.”52 The factors include: “(1) whether the expert’s theory can be or has been
tested; (2) whether the theory has been subjected to peer review and publication; (3)
the known or potential rate of error of the particular scientific technique; and (4)
whether the technique is generally accepted in the scientific community.”53 These
factors apply to scientific knowledge as well as technical knowledge, like
engineering.54 But “flexibility is essential in assessing the reliability of expert
testimony, and, as such ‘the law grants a district court the same broad latitude when
51

See Haynes v. Lawrence Transp. Co., No. 1:13-CV-04292-LMM, 2016
WL 1359185, at *4 (N.D. Ga. Feb. 1, 2016) (holding that an expert’s opinion
regarding the steepness of a railroad crossing is helpful because the expert compared
the steepness of the crossing with industry standards).
52

Cornerstone Missionary Baptist Church v. Southern Mut. Church Ins.
Co., No. 5:12-CV-149 (HL), 2013 WL 6712928, at *4 (M.D. Ga. Dec. 18, 2013)
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)).
53

Id. (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256
(11th Cir. 2002)).
54

Id. (citing Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 531
(D.N.J. 2001)).
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it decides how to determine reliability as it enjoys in respect to its ultimate reliability
determination.’”55
“[U]nlike the fields of ‘laboratory or medical testing, which employ rigorous
and replicable protocols, technical fields such as engineering often involve more
idiosyncratic methods of design and testing.’”56 “As a result, it is not unusual for a
technical expert, such as an engineer, to state that his opinions are not based upon any
specific method, but are based solely upon his general experience and knowledge after
a review of the evidence.”57 However, “engineers routinely rely upon established
principles of physics, material sciences, and industrial design and often utilize
technologically sophisticated and carefully calibrated testing methods and devices
when arriving at their conclusions.”58 Thus, “the accepted methodology,
characterizing the practice of an expert in the field of engineering, simply does not
involve guess work or even conjecture; rather, accepted methodology more often

55

McGee v. Evenflo Co., Inc., No. 5:02-CV-259-4(CAR), 2003 WL
23350439, at *4 (M.D. Ga. Dec. 11, 2003) (quoting Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 142 (1999)).
56

Id. (quoting Milanowicz, 148 F. Supp. 2d at 532).

57

Id. (quoting Milanowicz, 148 F. Supp. 2d at 532).

58

Id. at *5.

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involves some inquiry into industry standards, practices, or publications and results
in conclusions based upon concrete data, testing, measurements, or calculations.”59
Before turning to Atlas’s specific objections regarding reliability, it is worth
clarifying the nature of Rutila’s methodology. Rutila followed a qualitative sampling
method.60 As described in an article from the Journal of ASTM International, the key
principal of qualitative sampling “is that resulting causal findings and theoretical
statements clearly must be emergent from and grounded in purposive (or judgmental)
field observation. In other words the expert’s step-by-step process of qualitative
analysis builds toward general patterns that emerge from a series of purposeful
collected databases . . . .”61 In accordance with this methodology, Rutila and his SGH
team inspected 351 roofs with Stratford/Chalet Shingles.62 They then took 246 roofing
samples and tested them.63 Of the samples, they performed extractions on forty-five

59

Id.

60

See Rutila Dep., at 212; Mot. for Class Cert., Ex. Tab 21, at 11.

61

See Pls.’ Reply Br., at 41 (quoting Lonnie Haughton & Colin Murphy,
Qualitative Sampling of Building Envelopes for Water Leakage, JOURNAL OF ASTM
INTERNATIONAL, Vol. 4, No. 9, Oct. 1, 2007, at 2-3).
62

Mot. for Class Cert., Ex. Tab 21, at 5.

63

Id. at 33.

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of them and tear tests on sixteen of them.64 The extractions and tear tests were
performed in accordance with ASTM D228 and ASTM D1922, respectively.65
Moreover, thirty-three samples were water jet cut and viewed under a microscope.66
Rutila also reviewed relevant industry literature, applicable industry standards, an
Atlas manufacturing plant, and internal documents from Atlas.67 Based on his
investigation, he determined that the blistering, cracking, and granule loss observed
at the 351 roofs examined “is such that the shingles cannot reasonably be expected to
resist ordinary weather events today.”68 He stated that on all the roofs they examined,
at least 10% of the Shingles had blisters, granule loss, and/or cracking, which he
claims demonstrates the roofs need to be replaced.69 He further concluded that the
excessive blistering was likely caused by moisture in the manufacturing process, and
that there was likely a connection between the excessive granule loss and the

64

Id. at 38.

65

Id. at 33. ASTM D228 provides the standard protocols for testing asphalt
roofing. ASTM D1922 provides the standard protocols for tear resistance testing.
66

Id.

67

Id. at 3-4.

68

Id. at 46.

69

Id. at 45.

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moisture.70 For the excessive cracking, he opined that it was a result of the overlay pad
thickness, the position of the fiberglass mat, and the modified asphalt overlay.71
Atlas responds by first arguing that because Rutila cannot predict the timing of
all future actual failures, he “lacks a scientifically reliable basis to predict that any and
all such failures will be premature if and when they occur.”72 But as the Plaintiffs
correctly point out, Rutila is not attempting to predict exactly when all the Shingles
will actually fail. Rather, he states that – in their current condition – the Shingles will
not withstand foreseeable weather events and thus have prematurely failed. The
Defendant then argues that Rutila’s estimation that the Shingles should last twentyfive to thirty years is not objectively verifiable or a generally accepted benchmark for
comparable shingles. It points to SGH’s “survey of roofers who estimated as little as
11 years as an average duration for properly designed (‘not defective’) 3 tab strip
shingles.”73 But this survey is not a scientific analysis. It is merely a compilation of
70

Id. at 47; Rutila Dep., at 198.

71

Mot. for Class Cert., Ex. Tab 21, at 47. It should be noted that the
Plaintiffs do not attribute the excessive cracking to the manufacturing defects
observed by Rutila. Rather, the Plaintiffs contend that the excessive cracking is also
the result of excessive moisture during the manufacturing process. See Mot. for Class
Cert., at 4 (“Significantly, exposure to excess water in the manufacturing process is
a known cause of blistering, granule loss, cracking, and premature failure.”).
72

Def.’s Resp. Br., at 58-59 (emphasis in original).

73

Def.’s Resp. Br., at 59-60.

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opinions from members of the National Roofing Contractors Association and Roof
Consultants Institute.74 Moreover, the eleven year estimate was only the minimum
expected life; eighteen years was the mean expected life.75 Thus, while the survey may
be helpful to the Defendant, it does not make Rutila’s opinion unreliable. If the
Defendant wishes to undermine Rutila’s opinion regarding the expected life span of
the Shingles, it may do so through cross-examination.76
Finally, the Defendant argues that Rutila’s opinion regarding causation is
unreliable, because he cannot rule out that the Shingles may actually fail for a variety
of alternative reasons, like weather damage or ventilation. But Rutila did not attempt
to predict what would cause the actual failure of the Shingles. Rather, Rutila
addressed other possible causes for the Shingles’ effective failure. In his expert report
and deposition, he discredited possible alternative explanations for the Shingles’
deterioration, including issues like installation, ventilation, and site conditions, such
as sun exposure.77 Thus, like the previous opinion, the Defendant may attack Rutila’s
74

Pls.’ Reply Br., Ex. 10.

75

Id.

76

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)
(“[V]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”).
77

Mot. for Class Cert., Ex. Tab 21, at 46.

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conclusion regarding causation on cross-examination. The Court rejects the
Defendant’s Daubert Motion to exclude Rutila’s testimony.
2. Anthony Mattina
Atlas contends that neither Mattina’s qualifications nor his methodology can
support his proffered opinions. “[E]xperts may be qualified in various ways. While
scientific training or education may provide possible means to qualify, experience in
a field may offer another path to expert status.”78 However, “the unremarkable
observation that an expert may be qualified by experience does not mean that
experience, standing alone, is a sufficient foundation rendering reliable any
conceivable opinion the expert may express.”79 As the Committee Note to the 2000
Amendments of Rule 702 expressly states, “[i]f the witness is relying solely or
primarily on experience, then the witness must explain how that experience leads to
the conclusion reached, why that experience is a sufficient basis for the opinion, and
how that experience is reliably applied to the facts.”80
Here, the Court finds that Mattina is qualified to tender the opinions in his
affidavits. Mattina has worked in the roofing business for over twenty-nine years and
78

United States v. Frazier, 387 F.3d 1244, 1260-61 (11th Cir. 2004).

79

Id. at 1261 (emphasis in original).

80

Id. (emphasis in original) (quoting FED. R. EVID. 702 advisory
committee’s note to 2000 amendments).
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is the president and COO of Crist Roofing & Construction, Inc., (“Crist”), a licensed
general contractor with a specialty in roofing.81 Since he joined Crist, Mattina has
supervised approximately 12,000 re-roofing projects.82 As part of his oversight
responsibilities, Mattina ensures that the roofing projects are being performed in
accordance with “all applicable industry standards, building codes, and manufacturer’s
recommendations.”83 Thus, Mattina has extensive experience in the roofing industry.
Nevertheless, Mattina fails to establish that his opinions are based on a reliable
methodology. Mattina opines that the “Chalet Shingles fail early in their useful life by
developing blisters, excessively lose their granules and exhibit highly visible thermal
heat cracking.”84 He also states that the premature failure is not caused by installation
issues, but by the defects he observed during Crist’s roofing projects.85 Other than
stating that Crist has replaced approximately 1,000 Chalet roofs, however, Mattina
fails to explain in his affidavit how he developed his opinion. In his deposition
testimony, Mattina stated that he observed many roofs where blistering caused a

81

Mattina Aff. ¶¶ 2, 6, 11.

82

Id. ¶ 13.

83

Id. ¶ 12.

84

Id. ¶ 31.

85

Id. ¶ 44.

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leak.86 But he did not record the number of leaks he observed, nor did he investigate
other possible causes of the leaks.87 Thus, Mattina has failed “to explain how [his]
experience led to the conclusion[s] he reached, why that experience was a sufficient
basis for the opinion, and just how that experience was reliably applied to the facts of
the case.”88 In addition, because his opinions are based on roofs that have been
replaced, Atlas will not have the opportunity to inspect the roofs and develop its own
expert opinions. This, too, leads the Court to conclude that the Defendant’s Motion
to Exclude Mattina’s testimony should be granted.
B. Class Definition
Though not explicitly stated in Rule 23, it is well accepted that “[b]efore a
district court may grant a motion for class certification, a plaintiff . . . must establish
that the proposed class is adequately defined and clearly ascertainable.”89 “An
identifiable class exists if its members can be ascertained by reference to objective

86

Mattina Dep., at 116.

87

Id. at 118-120, 140-141.

88

United States v. Frazier, 387 F.3d 1244, 1265 (11th Cir. 2004).

89

Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)); see also
Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 534 (S.D. Fla. 2015) (“The
court may address the adequacy of the class definition before analyzing whether the
proposed class meets the Rule 23 requirements.”).
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criteria.”90 The analysis of the objective criteria must be administratively feasible,
meaning identifying class members is a “manageable process that does not require
much, if any, individual inquiry.”91 “A proponent of class certification may rely on the
defendant’s business records to identify prospective class members, but it is not
enough to simply allege that the defendant’s records will allow for identification.”92
“[T]he plaintiff must also establish that the records are in fact useful for identification
purposes.”93
Here, the Plaintiffs seek certification of the following Rule 23(b)(3) class:
All those who as of the date class notice is issued: (a) own a home or
other structure in the State of Georgia on which Atlas Chalet or Stratford
roofing shingles are currently installed; or (b) incurred unreimbursed
costs to repair or replace Atlas Chalet or Stratford roofing shingles on a
home or other structure which they currently own or previously owned
in the State of Georgia.94

90

Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 787
(11th Cir. 2014) (quoting Fogarazzo v. Lehman Bros., Inc., 263 F.R.D. 90, 97
(S.D.N.Y. 2009)).
91

Id. (quoting NEWBERG ON CLASS ACTIONS § 3.3 (5th ed.)).

92

In re Delta/AirTran Baggage Fee Antitrust Litigation, No. 1:09-md-2089TCB, 2016 WL 3770957, at *4 (N.D. Ga. July 12, 2016) (citation omitted) (citing
Bussey, 562 F. App’x at 787).
93

Id. (quoting Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 947 (11th

Cir. 2015)).
94

Mot. for Class Cert., at 17. The Plaintiffs are no longer seeking
certification of a Rule 23(b)(2) class. See Pls.’ Reply Br., at 20 n.12.
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The Defendant raises two objections to the proposed class definition. First, it argues
that the class definition is overly broad. By including current and former owners who
incurred costs in repairing or replacing their roofs, the Defendant contends that the
class definition does not require the owners to have suffered any damage due to an
alleged manufacturing defect. The Defendant also argues that the class is not
ascertainable. It contends that determining who qualifies as a member under the
second category would require “mini-trials.”95
The Court agrees with both of the Defendant’s objections. For the Defendant’s
first objection, the Court finds that this issue is better addressed in its predominance
discussion. The Plaintiffs allege that every Shingle is defective, and so the question
becomes whether the former and current owners can prove that the alleged defect
caused their injuries – the replacement or repair costs of their roofs – or was due to
other causes. This causation question raises concerns regarding individualized
evidence, and thus the Court will address it in the predominance section of its Order.
Still, the Plaintiffs have failed to demonstrate that identification of Atlas
Chalet/Stratford Shingles is administratively feasible. The Defendant did not sell
Shingles directly to homeowners. The Plaintiffs contend that there are reliable
methods for determining membership, including markings on the Shingles, warranty

95

Def.’s Resp. Br., at 42.

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claims, and receipts.96 But other than a list of warranty claims made in Georgia, the
Plaintiffs have failed to put forth evidence demonstrating how class members can be
easily ascertained.97 The Defendant has offered evidence that most warranty claims
were generated by roofers soliciting business by advertising that the Atlas Shingles
were defective. And the warranty claims only represent a tiny fraction of the homes
with Atlas Shingle roofs. In addition, the Plaintiffs do not proffer evidence that
demonstrates each Shingle contains a marking indicating it is an Atlas Chalet or
Stratford Shingle. This potentially means a large number of class members’ Shingles
will need to be individually examined to determine whether they are Chalet/Stratford
Shingles. That is exactly the kind of individual inquiry the ascertainability
requirement is meant to protect against.98 The Plaintiffs also do not submit any
receipts, invoices, or credit card records that demonstrate using such records is a
viable option for identifying class members. Merely noting that such records could be
96

Pls.’ Reply Br., at 20-21.

97

See In re Delta/AirTran Baggage Fee Antitrust Litigation, No. 1:09-md2089-TCB, 2016 WL 3770957, at *16 (N.D. Ga. July 12, 2016) (noting that the
plaintiffs provided receipts or credit card statements documenting their purchases in
addition to the defendants’ business records).
98

See Gonzalez v. Corning, 317 F.R.D. 443, 506 (W.D. Pa. 2016) (“Class
members whose structures have Oakridge-brand shingles installed on them cannot be
determined by release tape. At most, the release tape will indicate that the shingle was
manufactured at a plant that produces Oakridge-brand shingles.” (citation omitted)),
appeal docketed, No. 16-2653 (3d Cir. June 2, 2016).
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used is insufficient to demonstrate ascertainability.99 In sum, the Court finds that the
Plaintiffs fail to demonstrate an administratively feasible mechanism for identifying
class members in either category of the class definition.100 Without a clearly
ascertainable class, the Court cannot grant class certification.101 Nevertheless, because
the Court’s Order is subject to immediate appeal under Rule 23(f), the Court will
address the requirements of Rule 23(a) and 23(b)(3) to determine whether the
Plaintiffs would otherwise be entitled to class certification.102
C. Rule 23(A)
1. Numerosity

99

See Carrera v. Bayer Corp., 727 F.3d 300, 306-07 (3d Cir. 2013) (“A
plaintiff may not merely propose a method of ascertaining a class without any
evidentiary support that the method will be successful.”); Brooks v. GAF Materials
Corp., 284 F.R.D. 352, 363 (D.S.C. 2012) (finding a putative class was not
ascertainable because the plaintiffs only put forth the defendant’s warranty documents
as a possible database to identify putative class members).
100

See Marcus v. BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir.
2012) (“If class members are impossible to identify without extensive and
individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”).
101

See Perez v. Metabolife Intern., Inc., 218 F.R.D. 262, 266 (S.D. Fla.
2003) (“An identifiable class is essential so that the Court can determine whether a
particular claimant is a class member.” (quoting McGuire v. International Paper Co.,
No. 1:92-CV593BRR, 1994 WL 261360, at *3 (S.D. Miss. Feb. 18, 1994))).
102

FED. R. CIV. P. 23(f).

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To satisfy the numerosity requirement, the Plaintiffs must show that joinder of
all members of the putative class would be “impractical.”103 “Practicability of joinder
depends on many factors, including, for example, the size of the class, ease of
identifying its numbers and determining their addresses, facility of making service on
them if joined and their geographic dispersion.”104 “[W]hile there is no fixed
numerosity rule, generally less than twenty-one is inadequate, more than forty
adequate, with numbers between varying according to other factors.”105
The Plaintiffs have met their burden with regard to numerosity. They have
presented evidence that, in Georgia, Atlas has received warranty claims involving
2,752 separate properties.106 Moreover, Atlas Roofing’s sales record reveals that it has
sold 3,762,062 Chalet Shingles in Georgia, which, based on the Plaintiffs’ estimates,
means there are about 125,402 homes in Georgia with Chalet Shingles.107 The
Plaintiffs, therefore, have presented sufficient evidence that the likely number of
homeowners in Georgia who fall within the class exceeds the minimum threshold.

103

FED. R. CIV. P. 23 (a)(1).

104

Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986).

105

Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.

1986).
106

Mot. for Class Cert., Ex. Tab 38.

107

Id. at 20, Ex. Tab 13.

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Moreover, the large number of putative class members makes joinder impractical.
Thus, the Court finds the numerosity requirement is satisfied.
2. Commonality
The commonality requirement is satisfied if the plaintiffs demonstrate the
presence of questions of law or fact common to the entire class.108 It is not necessary
that all questions of law and fact be common.109 Indeed, “[e]ven a single [common]
question” is sufficient to satisfy the commonality requirement.110 But the issues still
must be susceptible to class-wide proof, and the plaintiffs’ claims must share “the
same essential characteristics as the claims of the class at large.”111 “Commonality
requires the plaintiff to demonstrate that the class members ‘have suffered the same
injury.’”112 “This does not mean merely that they all suffered a violation of the same
provision of law.”113 “Their claims must depend upon a common contention . . . of
such a nature that it is capable of classwide resolution – which means that

108

FED. R. CIV. P. 23 (a)(2).

109

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).

110

Id. (alteration in original).

111

Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004).

112

Wal-Mart, 564 U.S. at 349-50 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
113

Id. at 350.

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determination of its truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.”114
Here, the Court finds that the Plaintiffs have sufficiently demonstrated
commonality. The Plaintiffs allege that the Shingles suffer from a common defect due
to a flaw in the manufacturing process. Thus, some common issues include: (1)
whether the Shingles are defective; (2) whether the defect is caused by a flawed
manufacturing process; (3) whether the defect causes the Shingles to suffer from
blistering, cracking, and granule loss problems as well as premature failure; (4)
whether the defect in the Shingles breached the Defendant’s expressed and implied
warranties; and (5) whether the Defendant knew of the defect.115 These questions of
fact are common to the Plaintiffs’ claims and will generate common answers.116
Accordingly, the Plaintiffs have satisfied the commonality requirement.
3. Typicality
The typicality requirement mandates that the claims and defenses of the
representative plaintiffs are typical of the claims and defenses of the class.117 This

114

Id.

115

See Pls.’ Mot. for Class Cert., at 22-23.

116

See Wal-Mart, 564 U.S. at 350.

117

FED. R. CIV. P. 23(a)(3).

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requirement is satisfied when “a plaintiff’s injury arises from or is directly related to
a wrong to a class, and that wrong includes the wrong to the plaintiff.”118 But “[c]lass
members’ claims need not be identical to satisfy the typicality requirement.”119 This
is because “typicality measures whether a sufficient nexus exists between the claims
of the named representatives and those of the class at large.”120 “A sufficient nexus is
established if the claims or defenses of the class and the class representative arise from
the same event or pattern or practice and are based on the same legal theory.”121
Here, the Plaintiffs’ claims arise from the same allegations of wrongful conduct
as the claims of the putative class. Specifically, all the claims are based on the sale of
Shingles which allegedly suffer from the same defect. Moreover, the Plaintiffs’ claims
arise from the same legal theories, including breach of express and implied warranties
and fraudulent concealment. In response, the Defendant argues that, based on the
experiences of the named Plaintiffs, there is no typical plaintiff, and that
individualized defenses render the Plaintiffs’ claims atypical. To be sure, the named
118

Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1022 (11th Cir.
1996), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553
U.S. 639, 641 (2008).
119

Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012).

120

Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004) (quoting
Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)).
121

Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984).

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Plaintiffs each experienced different weather conditions, installation, and maintenance
of their roofs. In addition, the named Plaintiffs’ warranties are not necessarily typical
of the class as a whole. Nevertheless, “the showing required for typicality is not
demanding.”122 Varying experiences and unique defenses do not necessarily defeat
typicality.123 If a “sufficient nexus” exists – as the Court found above – then the
typicality requirement is met. Thus, the Court concludes that the Plaintiffs have
satisfied Rule 23(a)’s typicality requirement.
4. Adequacy of Representation
To prove adequacy of representation, a plaintiff must demonstrate that the class
representatives “fairly and adequately protect the interests of the class.”124 This
requirement serves to uncover conflicts of interest between named parties and the
class they seek to represent.125 A determination of adequacy “encompasses two
separate inquiries: (1) whether any substantial conflicts of interest exist between the

122

City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651
(S.D. Fla. 2010).
123

See Ault, 692 F.3d at 1216 (“While each class member may have a
stronger or weaker claim depending upon his or her degree of reliance, we conclude
that this alone does not make class representatives’ claims atypical of the class as a
whole.”).
124

FED. R. CIV. P. 23(a)(4).

125

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).

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representatives and the class; and (2) whether the representatives will adequately
prosecute the action.”126 The Court finds that the named Plaintiffs and their counsel
adequately represent the class. First, there is no evidence of any conflicts of interest
between the named Plaintiffs and the class. As noted above, the named Plaintiffs and
the putative class members seek to recover from the same alleged unlawful conduct
– a defect in the Defendant’s Shingles. Second, there is no evidence that the named
Plaintiffs will not vigorously and adequately pursue the asserted claims on behalf of
the class members. Third, there is no evidence of any potential conflicts with class
counsel. Moreover, the Plaintiffs have presented evidence that proposed class counsel
have extensive experience with class actions and are qualified to conduct this
litigation.127 Thus, the Plaintiffs have satisfied Rule 23(a)(4).
D. Rule 23(b)(3)
1. Predominance
The Plaintiffs seek class certification under Rule 23(b)(3). To certify a Rule
23(b)(3) class, the Plaintiffs must demonstrate two prerequisites: predominance and
superiority.128 To meet the predominance requirement, “the issues in the class action
126

Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.

2003).
127

See Mot. for Class Cert., Ex. Tab 56.

128

FED. R. CIV. P. 23(b)(3).

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that are subject to generalized proof and thus applicable to the class as a whole, must
predominate over those issues that are subject to individualized proof.”129 “Common
issues of fact and law predominate if they ha[ve] a direct impact on every class
member’s effort to establish liability and on every class member’s entitlement to
injunctive and monetary relief.”130 Importantly, “[w]hether an issue predominates can
only be determined after considering what value the resolution of the class-wide issue
will have in each class member’s underlying cause of action.”131 But if the “plaintiffs
must still introduce a great deal of individualized proof or argue a number of
individualized legal points to establish most or all of the elements of their individual
claims,” then predominance does not exist.132
In Brown v. Electrolux Home Products, Inc., the Eleventh Circuit provided a
three-step approach for evaluating predominance: (1) identify the parties’ claims and
defenses and their elements; (2) determine whether these issues are common questions

129

Cooper v. Southern Co., 390 F.3d 695, 722 (11th Cir. 2004) (quoting
Kerr v. City of W. Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989)).
130

Babineau v. Federal Express Corp., 576 F.3d 1183, 1191 (11th Cir. 2009)
(alteration in original) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.
2004)).
131

Klay, 382 F.3d at 1255 (quoting Rutstein v. Avis Rent-A-Car Sys., 211
F.3d 1228, 1234 (11th Cir. 2000)).
132

Id.

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or individual questions by analyzing how each party will prove them at trial; and (3)
determine whether the common questions predominate.133 In addition, the Eleventh
Circuit noted that “[d]istrict courts should assess predominance with its overarching
purpose in mind – namely, ensuring that ‘a class action would achieve economies of
time, effort, expense, and promote . . . uniformity of decision as to persons similarly
situated, without sacrificing procedural fairness or bringing about other undesirable
results.’”134
a. Breach of Express and Implied Warranties
In Counts I and II of their Complaint, the Plaintiffs allege that the Defendant
violated its express and implied warranties. To recover for breach of an express
warranty, a plaintiff must show that the defendant made an affirmation of fact or
promise which relates to the goods and became part of the basis of the bargain.135
Next, the plaintiff must demonstrate that there is a defect which breaches the express
warranty.136 If “notice to the manufacturer within a specified time is a condition
133

817 F.3d 1225, 1234 (11th Cir. 2016).

134

Id. at 1235 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615

(1997)).
135

O.C.G.A. § 11-2-313(1)(a). Georgia does not require a plaintiff to prove
reliance upon the warranty. See Horn v. Boston Sci. Neuromodulation Corp., No.
CV409-074, 2011 WL 3893812, at *11-12 (S.D. Ga. Aug. 26, 2011).
136

Dryvit Sys., Inc. v. Stein, 256 Ga. App. 327, 328-29 (2002).

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precedent to recovery on a breach of warranty claim,” then the plaintiff must also
show that notice was provided and that the warrantor was given a reasonable amount
of time to remedy the defect.137 For breach of implied warranty, a plaintiff must show
that there was a defect, that the defect existed at the time of sale, and that the defect
made the product unmerchantable.138 Finally, for both warranty claims, a plaintiff
must demonstrate that he or she “sustained recoverable damages as the proximate
result” of the breach of the warranty.139
Here, the Court finds that – even if the Plaintiffs could prove a uniform defect
– individual issues going to causation, notice, coverage, and statute of limitations
predominate over any common questions in this case. To begin, there are numerous
reasons a roof may fail, including commonplace events and ordinary wear and tear.140
There are also numerous reasons a shingle may blister, crack, or suffer from granule
loss.141 Thus, it is likely that the Defendant will bring at least one causation challenge

137

Id.

138

Whitehead v. John Bleakley RV Center, Inc., 1:09-cv-468-TWT, 2010
WL 925091, at *5 (N.D. Ga. March 8, 2010).
139

Stroup v. Castellucis, 163 Ga. App. 113 (1982); see also Wilson v. J &
L Melton, Inc., 270 Ga. App. 1, 3 n.1 (2004).
140

Rutila Dep., at 137-38.

141

Id. at 198.

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against most – if not all – putative class members. Because the causation
determination for most putative class members will involve individualized evidence,
these individual causation questions will predominate at any trial.142 In response, the
Plaintiffs argue that if the jury agrees with their argument that a defect existed in every
Shingle at the time it was sold, then Atlas’s arguments regarding alternative causation
will be negated.143 Not so. Because the Plaintiffs seek the replacement costs of all
class members’ roofs, the alleged defect in the Shingles must have caused a class
member’s injuries in order for that class member to recover.144 All roofs will fail
eventually. If an Atlas Shingle roof survives to the end of normal roof life expectancy,
the homeowner-class member has not been damaged by the alleged manufacturing
defect. If the roof fails due to hail or wind damage or improper installation, the
142

See City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630,
641 (S.D. Fla. 2010) (holding that “even if Plaintiffs were able to demonstrate that
FlexPipe had a general defect, it would not assist Plaintiffs in meeting their burden of
showing that that particular defect was the legal cause of each class member’s harm”).
143

The Plaintiffs also argue that “Atlas simply restates its defense on the
merits, which is not relevant to class certification.” Pls.’ Reply Br., at 13. But the issue
of causation is not an affirmative defense; it is an element of the Plaintiffs’ warranty
claims. Thus, Atlas’s causation challenges are relevant at the class certification stage.
In addition, they do not fall under the general rule that affirmative defenses do not
defeat predominance.
144

See Marcus v. BMW of North Am. LLC, 687 F.3d 583, 605 (3d Cir.
2012) (“[I]t is undisputed that even if Marcus could prove that Bridgestone RFTs
suffer from common, class-wide defects, those defects did not cause the damage he
suffered for these two tires: the need to replace them.”).
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homeowner-class member has not been damaged. This is unlike a products liability
case where the plaintiffs claim an economic injury by seeking the diminution in the
intrinsic value of the product.145 In such cases, the plaintiffs typically only need to
prove that the defect existed at the time of purchase to prove the defect caused their
economic injury.146 Here, even if the Plaintiffs prove a common defect existed in the
Shingles, each class member cannot recover damages based on that fact alone. They
also must prove that the alleged defect caused their roof to prematurely fail. For the
Plaintiffs that have already had their roofs replaced or repaired, this will be an
especially fact-intensive inquiry.
The Plaintiffs cite two cases – Sanchez-Knutsen v. Ford Motor Co. and Brooks
v. GAF Materials Corp. – which they contend support their argument. However, the

145

See Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D. 68,
73 ( E.D.N.C. 2008) (“[N]amed plaintiffs seek to recover damages for the results of
the failure of the allegedly defective silage bags – the gravamen of their complaint is
not diminution in the silage bags’ intrinsic value.”); Naparala v. Pella Corp., Nos.
2:14-mn-00001-DCN, 2:14-cv-03465-DCN, 2016 WL 3125473, at *11 (D.S.C. June
3, 2016) (holding that complex causation issues existed because the “plaintiff’s claim
focuses on Pella’s failure to repair and replace the Windows, not the initial purchase
of the Windows”).
146

See Daffin v. Ford Motor Co., No. C-1-00-458, 2004 WL 5705647, at *7
(S.D. Ohio July 15, 2004) (“The alleged injury, however, is not accelerator sticking
but economic loss resulting directly from the allegedly defective piece of equipment.
The causation question is therefore vastly simplified and does not suffer the infirmities
argued by Ford.”).
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Court finds that these cases do not help the Plaintiffs. In Sanchez-Knutsen, the court
dismissed the need for individual inquiries into causation, concluding that the
evidence did not justify the defendant’s concerns.147 At issue was whether Ford’s
Explorer vehicle suffered from a defect at the time of purchase that permitted exhaust
and other gases to enter the passenger compartment of the vehicle.148 The court in
Sanchez-Knutsen framed the plaintiffs’ damages as the diminution in the intrinsic
value of their Explorers, not the repair costs.149 Thus, the court did not face the same
causation issues presented in this instant case. Here, each class member will need to
prove that the alleged defect caused his or her Shingles to prematurely fail, not just
that the defect exists. This will likely create substantial causation inquiries when
deciding the class members’ claims.
Brooks is also distinguishable. There, homeowners sued GAF Materials Corp.
(“GAF”), which manufactures roofing materials, over allegedly defective roof
shingles.150 Specifically, the named plaintiffs sought to represent a class of individuals

147

Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 538 (S.D. Fla.

2015).
148

Id. at 533.

149

Id. at 538-39.

150

Brooks v. GAF Materials Corp., No. 8:11-cv-00983-JMC, 2012 WL
5195982, at *1 (D.S.C. Oct. 19, 2012).
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whose shingles allegedly prematurely cracked.151 In certifying the proposed class, the
court discounted the need for individual causation inquiries, stating that the “Plaintiffs
seek to establish causation on a large scale – that GAF knowingly sold shingles that
contained an inherent manufacturing defect that will inevitably cause the shingles to
crack, split, or tear.”152 While the Plaintiffs, here, present a similar causation
argument, the Court believes that evidence in this case demonstrates that other specific
causation issues – such as improper installation, inadequate ventilation, or
environmental factors – will be significant in deciding the putative class members’
cases. Moreover, the class in Brooks was limited to persons whose shingles had
already cracked, split, or torn.153 Here, the breadth of the Plaintiffs’ proposed class is
much larger – it includes owners whose roofs may have been repaired or replaced for
reasons other than the alleged premature failure. As a result, the Plaintiffs’ proposed
class presents more individualized causation questions.
Individual issues will also predominate with respect to two requirements in
Atlas’s express warranty: transferability and notice. Transferability presents individual
questions because the 2002 limited warranty specifically requires a second owner to

151

Id.

152

Id. at *6.

153

Id. at *4.

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notify Atlas in writing within thirty days of the real estate transfer for any coverage
to be transferred.154 The third-owner class members are not even eligible to recover
under the 2002 limited warranty.155 As a result, the class members who purchased a
home with Atlas Shingles already installed on it will have to prove that the warranty
properly transferred to them. Proving compliance with Atlas’s notice requirement will
require even more individualized evidence. The 1999 limited warranty requires each
warrantee to provide notice of the alleged defect to Atlas within five days of
discovering it, and the 2002 limited warranty requires notice within thirty days of
discovery.156 Each class member will then need to demonstrate that his or her notice
to Atlas was for the alleged defect and not for an unrelated issue. Finally, each class
member will need to demonstrate that he or she provided Atlas an opportunity to cure
the alleged defect. There are, therefore, numerous individualized issues that will
predominate the issues of notice and transferability.
In response, the Plaintiffs first argue that evidence of numerous consumer
complaints regarding the alleged defect may be used to satisfy the notice requirement.
They cite several cases where courts have found that widespread consumer complaints

154

Def.’s Resp. Br., Ex. G.

155

Id.

156

Id., Exs. G-H.

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are sufficient to establish constructive notice.157 But Georgia courts have yet to
recognize constructive notice in this context. As a result, the Court is unwilling to hold
that constructive notice is sufficient to satisfy the notice requirement.158 The Plaintiffs
then argue that, through common evidence, they will demonstrate the Defendant
waived the notice requirement. According to the Plaintiffs, the Defendant never asked
the warranty claimants whether they were filing their claims within thirty days of
discovering the alleged defect. Nor did the Defendant enforce the requirement when
it knew the claimants were late. The Plaintiffs cite RHL Properties LLC v. Neese159
in support of their contention. There, the Georgia Court of Appeals stated that courts
“will readily find a waiver of strict compliance with a notice provision based on the
conduct of the parties in order to avoid a forfeiture of substantive contractual
157

See, e.g., Muehlbauer v. General Motors Corp., 431 F. Supp. 2d 847,
859-60 (N.D. Ill. 2006).
158

The Plaintiffs provided the Court with supplemental authority –
Bickerstaff v. Suntrust Bank – on this issue. But Bickerstaff is distinguishable. It dealt
with whether a class action complaint “tolled the time in which the putative class
members were required to notify SunTrust of their intent to reject arbitration.” 299 Ga.
459, 463 (2016). That pre-suit requirement serves a different purpose than the notice
requirement in the instant action. The latter provides the warrantor the opportunity to
cure the defect and thus fulfill its contractual obligations. See Cohen v. Implant
Innovations, Inc., 259 F.R.D. 617, 642 (S.D. Fla. 2008) (noting that allowing a class
action complaint to serve as notice for both a plaintiff and the putative class members
“would obviate the need for the notice requirement”). Accordingly, the Court still
finds that the issue of notice is an individual question.
159

293 Ga. App. 838 (2008).

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rights.”160 Thus, the Plaintiffs argue that by routinely failing to insist on compliance
with the notice requirement, the Defendant waived the requirement. The Court
disagrees. The Neese case concerned whether the defendant waived its notice
requirement with respect to one party.161 The Plaintiffs have failed to cite any case law
that states a defendant may waive the notice requirement with respect to all of its
warranty claimants if it does not enforce the requirement for each past claimant.
Consequently, the Court finds that the notice and opportunity to cure requirement is
an individual issue that cannot be resolved through common evidence.
Atlas is also likely to employ affirmative defenses against many class members,
with the most likely defense being the statute of limitations. Under Georgia law, “[a]n
action for breach of any contract for sale must be commenced within four years after
the cause of action has accrued.”162 Typically, the cause of action accrues when the
breach occurs, which for a warranty occurs when tender of delivery is made.163 The
implied warranty claim will follow the typical accrual rule.164 For that claim, all of the

160

Id. at 841.

161

Id. at 841-42.

162

See O.C.G.A. § 11-2-725(2).

163

Id.

164

McCabe v. Daimler AG, 948 F. Supp. 2d 1347, 1361 (N.D. Ga. 2013)
(“[A]n implied warranty by its nature cannot ‘explicitly extend to future performance’
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putative class members will need to demonstrate that they purchased their Shingles
within the last four years. But as the Defendant correctly pointed out during the class
certification hearing, based on Atlas’s sales data, only 5% of the Shingles were sold
in the last four years.165 Thus, it is likely a large percentage of the class members’
implied warranty claims will be barred by the statute of limitations.166
The Plaintiffs counter with the general rule that individual affirmative defenses
usually do not defeat predominance.167 Thus, they contend that the statute of
limitations issue, along with other potential affirmative defenses, can be handled in
the second phase of the case after a liability trial. It is accurate that “courts
traditionally have been reluctant to deny class action status under Rule 23(b)(3)

and thus does not fall within that exception.” (quoting Clark v. DeLaval Separator
Corp., 639 F.2d 1320, 1325 (5th Cir. 1981))).
165

See Mot. for Class Cert. Hearing [Doc. 366], at 102.

166

The Court notes that the issue of tolling will also involve individualized
evidence. “To toll the statute of limitation under O.C.G.A. § 9-3-96, the concealment
of a cause of action must be by positive affirmative act, not by mere silence.” Wilson
v. Phillips, 230 Ga. App. 290, 291 (1998). Thus, each class member will need to
demonstrate that he or she was hindered from discovering the defect by an affirmative
action by Atlas.
167

In re Checking Account Overdraft Litigation, 286 F.R.D. 645, 656 (S.D.
Fla. 2012) (“Unique affirmative defenses rarely predominate where a common course
of conduct is established.”).
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simply because affirmative defenses may be available against individual members.”168
But as the Eleventh Circuit recently confirmed in Brown v. Electrolux Home
Products, Inc., affirmative defenses are nevertheless relevant when determining the
question of predominance.169 Specifically, the Eleventh Circuit noted that affirmative
defenses that are coupled with several other individual questions could defeat
predominance.170 Such is the case here. The statute of limitations defense coupled with
the other individual issues discussed above outweigh any common questions raised
by the Plaintiffs.
b. Fraudulent Concealment
In Count VI of their Complaint, the Plaintiffs assert a fraud claim against the
Defendant. The Plaintiffs argue that Atlas fraudulently concealed the alleged defect
and misrepresented to potential customers that the Shingles were durable and
conformed to applicable industry standards. To prove their allegation, the Plaintiffs
point to evidence – including internal documents – that allegedly demonstrates the

168

Brown v. Electrolux Home Products, Inc., 817 F.3d 1225, 1240 (11th Cir.
2016) (quoting WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 4:55 (5th
ed.)).
169

Id. at 1241.

170

Id.

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Defendant was aware of the defect.171 “The tort of fraud has five elements: (1) a false
representation or omission of a material fact; (2) scienter; (3) intention to induce the
party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5)
damages.”172 Because the element of reliance is more hotly disputed than the other
elements, the Court’s analysis will focus on it.
The Defendant contends that, in the instant case, reliance is an individual issue
that cannot be proven through common evidence. It points to Huddleston v. R.J.
Reynolds Tobacco Co., in which this Court held that in Georgia – even in the context
of fraudulent omissions – reliance must be proven on an individual basis.173 Thus,
according to the Defendant, the individual issues surrounding reliance on the allegedly
fraudulent misrepresentations and omissions defeat predominance. The Plaintiffs
counter that “under well-established Eleventh Circuit precedent, the simple fact that
reliance is an element in a cause of action is not an absolute bar to class
certification.”174 They then go one step further and state that the class members will
be able to use circumstantial evidence when demonstrating reliance. They point to
171

See Mot. for Class Cert., Exs. Tab 16, 30-31.

172

Wolf v. Middleton, 305 Ga. App. 784, 788 (2010) (quoting ReMax North
Atlanta v. Clark, 244 Ga. App. 890, 893(2000)).
173

66 F. Supp. 2d 1370, 1377 (N.D. Ga. 1999).

174

Klay v. Humana, Inc., 382 F.3d 1241, 1258 (11th Cir. 2004).

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Klay v. Humana, Inc. in support of their contention. In Klay, a putative class action
was brought by a group of doctors who submitted claims for reimbursement to HMOs
but were systematically underpaid.175 The court concluded that class certification was
appropriate for the plaintiffs’ RICO claim for two reasons. First, common issues of
fact, which included the existence of a national conspiracy, a pattern of racketeering
activity, and a Managed Care Enterprise, predominated “over all but the most complex
individualized issues.”176 Second, the court found “that, based on the nature of the
misrepresentations at issue, the circumstantial evidence that can be used to show
reliance is common to the whole class.”177 In clarifying the nature of the
misrepresentations, the Eleventh Circuit stated:
The alleged misrepresentations in the instant case are simply that the
defendants repeatedly claimed they would reimburse the plaintiffs for
medically necessary services they provide to the defendants’ insureds,
and sent the plaintiffs various EOB forms claiming that they had actually
paid the plaintiffs the proper amounts. While the EOB forms may raise
substantial individualized issues of reliance, the antecedent
representations about the defendants’ reimbursement practices do not. It
does not strain credulity to conclude that each plaintiff, in entering into
contracts with the defendants, relied upon the defendants’
representations and assumed they would be paid the amounts they were
due. A jury could quite reasonably infer that guarantees concerning
physician pay – the very consideration upon which those agreements are
175

Id. at 1246-47.

176

Id. at 1259.

177

Id.

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based – go to the heart of these agreements, and that doctors based their
assent upon them.178
The Plaintiffs contend that the misrepresentations in Klay are similar to the
misrepresentations by Atlas in that no class member would purchase Shingles that are
going to prematurely fail. Therefore, all the class members relied on Atlas’s alleged
omission and misrepresentations regarding the durability of the Shingles when they
purchased the Shingles.
The Plaintiffs’ analogy is misplaced. “[A] fraud case may be unsuited for
treatment as a class action if there was material variation in the representations made
or in the kinds of degrees of reliance by the persons to whom they were addressed.”179
When presented with such cases, “the Eleventh Circuit has repeatedly found class
certification inappropriate.”180 In this case, there are both material variation in the
representations and kinds of degrees of reliance by the class members. For the alleged
misrepresentations, each class member would need to establish what particular
marketing material or industry standard he or she observed and relied upon. This is
further complicated by third party wholesalers, retailers, and contractors who made
178

Id.

179

Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 313 (S.D. Ala.
2006) (quoting FED. R. CIV. P. 23(b)(3), Advisory Notes to 1966 Amendment).
180

Id. (citing Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d
1330, 1344 (11th Cir. 2006)).
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the purchase decisions for the vast majority of the Shingle purchases. Indeed, there is
no evidence that Atlas engaged in a uniform marketing scheme. Thus, the Plaintiffs
cannot use common evidence to prove they relied on Atlas’s statements regarding the
durability of the Shingles. For the alleged fraudulent omission, the class members
made their own assessment when deciding to purchase the Shingles or homes with the
Shingles installed on the roof. As an example, some class members may have been on
notice of blistering, cracking, and granule loss on the Shingles, but decided to
purchase the property despite the conditions. Such class members would not have
relied on the alleged omission. Unlike in Klay, the class will need to prove reliance
through individual evidence. Thus, the Court finds that common issues do not
predominate with regard to the Plaintiffs’ fraudulent inducement claim.181
2. Superiority
To meet the superiority requirement, the Court must conclude “that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.”182 The factors relevant in determining superiority include:

181

See Brinker v. Chicago Title Ins. Co., No. 8:10-cv-1199-T-27AEP, 2012
WL 1081182, at *6 (M.D. Fla. Mar. 30, 2012) (distinguishing Klay and finding that
“it cannot be assumed that each class member relied on any alleged misrepresentations
and omissions simply because he or she decided to close”).
182

FED. R. CIV. P. 23(b)(3).

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(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.183
Class certification “cannot be denied because the number of potential class members
makes the proceeding complex or difficult.”184 But the difficulties in managing a class
are important “if they make the class action a less fair and efficient method of
adjudication than other available techniques.”185 Thus, the focus should be “on the
relative advantages of a class action suit over whatever other forms of litigation might
be realistically available to the plaintiffs.”186
The Court finds that class treatment is not superior to other available methods
of adjudication. Based on the number of individual issues discussed above,
adjudicating these claims on a class-wide basis will likely present a manageability
problem. There will be numerous fact-intensive individual inquiries, including

183

Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
184

In re Theragenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D. Ga. 2002).

185

Id. at 697-98 (quoting In re Domestic Air Transp. Antitrust Litigation,
137 F.R.D. 677, 693 (N.D. Ga. 1991)).
186

Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir. 2004).

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physical inspection of class members’ Shingles and individual testimony regarding
when class members discovered the defect and provided notice to Atlas. In addition,
the Court does not agree with the Plaintiffs’ contention that the class members lack
any significant interest in controlling the litigation. The damages claimed by the
named Plaintiffs are not insignificant. The Plaintiffs’ own expert opined that replacing
a roof can be “several thousand dollars to tens of thousands of dollars.”187 Thus, this
case is unlike class actions where the class members have suffered only a minor harm
and would not pursue their claim but for the class action mechanism.188 The owners
have the option of pursuing their claims in state court, where claims of several
thousands dollars are common.189 In sum, the Court finds that Rule 23(b)’s superiority
requirement is not satisfied.
E. Rule 23(c)(4)
As an alternative, the Plaintiffs ask the Court to certify a Rule 23(c)(4) class
consisting of four common questions: “(1) whether the shingles suffer from a common

187

Mot. for Class Cert., Ex. Tab 21, at 47.

188

Cf. In re Delta/AirTran Baggage Fee Antitrust Litigation, No. 1:09-md2089-TCB, 2016 WL 3770957, at *23 (N.D. Ga. July 12, 2016) (“Where, as here, the
class members’ claims are ‘so small that the cost of individual litigation would be far
greater than the value of those claims,’ the class-action vehicle is superior to other
forms of litigation available to Plaintiffs, and class certification is appropriate.”).
189

See Gonzalez v. Owens Corning, 317 F.R.D. 443, 524 (W.D. Pa. 2016).

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manufacturing defect; (2) whether the defect breaches any express or implied
warranties; (3) whether the defect necessitates replacement of all roofs containing the
shingles; and (4) whether Atlas fraudulently concealed the defect.”190 The Plaintiffs
contend that certifying a class based on these four questions will materially advance
the litigation.
Under Rule 23(c)(4), “an action may be brought or maintained as a class action
with respect to particular issues.”191 However, there is a split among courts over how
to apply the predominance test when asked to certify an issue class.192 Some courts
have certified issue classes despite a lack of overall predominance.193 But many other
courts “have emphatically rejected attempts to use the (c)(4) process for certifying
individual issues as a means for achieving an end run around the (b)(3) predominance
190

Pls.’ Reply Br., at 25.

191

FED. R. CIV. P. 23(c)(4).

192

Compare In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 225 (2d
Cir. 2006) (“[A] court may employ Rule 23(c)(4)(A) to certify a class on a particular
issue even if the action as a whole does not satisfy Rule 23(b)(3)’s predominance
requirement.”), with Castano v. American Tobacco Co., 84 F.3d 734, 745 n.21 (5th
Cir. 1996) (“A district court cannot manufacture predominance through the nimble use
of subdivision (c)(4).”).
193

See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)
(“[E]ven if the common questions do not predominate over the individual questions
so that class certification of the entire action is warranted, Rule 23 authorizes the
district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A)
and proceed with class treatment of these particular issues.”).
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requirement.”194 These courts note that “the proper interpretation of the interaction
between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must
satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule
that allows courts to sever common issues for a class trial.”195 The Court finds the
latter interpretation to be persuasive.196 As discussed above, even if the Plaintiffs could
establish in a class-wide trial that the Shingles suffer from a common manufacturing
defect, each class members’ claim will still need to be separately tried to determine
issues like causation, notice, and statute of limitations. It is these individual issues that
will predominate. Moreover, certifying an issues class would not promote judicial
efficiency. The “Plaintiffs’ case for certification collapses when it confronts the fact
that certification of a common issues class will not dispose of a single case or

194

Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 700 (S.D. Fla. 2014)
(quoting City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 646 (S.D.
Fla. 2010)); see also Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 316
(S.D. Ala. 2006).
195

Castano, 84 F.3d at 745 n.21.

196

It should be noted that the Eleventh Circuit has not provided clear
guidance as to whether predominance must be found for the cause of action as a whole
when certifying a Rule 23(c)(4) class.
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eliminate the need for a single trial.”197 As a result, the Court concludes a Rule
23(c)(4) class should not be certified.
IV. Conclusion
For the reasons set forth above, the Plaintiffs’ Motion for Class Certification
[Doc. 57] is DENIED.
SO ORDERED, this 8 day of June, 2017.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

197

In re Conagra Peanut Butter Products Liability Litigation, 251 F.R.D.
689, 701 (N.D. Ga. 2008).
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