Dickson et al v. Atlas Roofing Corporation

Filing 59

OPINION AND ORDER denying Motion to Certify Class (301) in case 1:13-md-02495-TWT and (54) in case 1:13-cv-04222-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/8/17. Associated Cases: 1:13-md-02495-TWT, 1:13-cv-04222-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
PATRICIA and DAVID DICKSON
on behalf of themselves and all others
similarly situated, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:13-CV-4222-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 Patricia
and David Dickson’s Motion for Class Certification [Doc. 54]. For the reasons set
forth below, the Plaintiffs’ Motion for Class Certification [Doc. 54] 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 Shingle which creates
a gas bubble that expands when the Shingles are exposed to the sun resulting in
cracking and blistering of the Shingles.”5 The Plaintiffs further allege that despite

1

It should be noted that – for purposes of this lawsuit – Chalet/Stratford
Shingles are indistinguishable. See Primary Mot. for Class Cert. [Doc. 57], Ex. Tab
14, Thomas Dep., at 35 under No. 13-cv-02195-TWT. The differences between the
two Shingles relate to aesthetics, not design. Id.
2

Compl. ¶ 2.

3

Id.

4

Id. ¶ 3. In support of their argument regarding the alleged defects in the
Shingles, the Plaintiffs rely on the expert testimony of both Dean Rutila and Anthony
Mattina. In Dishman v. Atlas Roofing Corp., the Defendant filed a Daubert motion
challenging the admissibility of both Rutila’s and Mattina’s testimony. See Def.’s
Primary Resp. Br. [Doc. 59] under No. 1:13-cv-02195-TWT. The Defendant
incorporates by reference the Defendant’s Response Brief in Dishman v. Atlas
Roofing Corp. See Def.’s Resp. Br., at 2.
5

Compl. ¶ 46.

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Atlas’s knowledge of the defect, Atlas did nothing to correct the defective design and
continued to market and warrant the Shingles as durable.6
Atlas provided four different limited warranties throughout the eleven-year
class period.7 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.”8 The warranty was transferrable to future
property owners.9 On January 1, 2002, Atlas began issuing thirty-year limited
warranties.10 The thirty-year warranty provided that the Shingles were “free from
manufacturing defects, which results in leaks.”11 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.12
6

Id. ¶¶ 52-54.

7

See Primary Mot. for Class Cert., Exs. Tab 23-26. The Plaintiffs
incorporate by reference the background section of Plaintiffs’ Motion for Class
Certification in Dishman v. Atlas Roofing Corp. See Mot. for Class Cert., at 2.
8

See Primary Mot. for Class Cert., Ex. Tab 23.

9

Id.

10

Id.

11

Id., Exs. Tab 24-26.

12

Id.

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The named Plaintiffs Patricia and David Dickson, who are residents of Clover,
South Carolina, purchased a home in 1999 and decided to install the Shingles.13 They
also purchased the Shingles for other additions to their home.14 Upon discovery of the
alleged defect in the Shingles, the Plaintiffs state that they filed a timely warranty
claim with Atlas.15 But, according to the Plaintiffs, Atlas denied their claim, blaming
weather events as the true cause of the deterioration of the Shingles.16 On June 3,
2013, the named Plaintiffs filed suit in the United States District Court for the District
of South Carolina17 on behalf of themselves and others similarly situated in the state
of South Carolina.18 They seek to bring their suit as a class action. Because similar
consumer class actions were filed in other states, the Judicial Panel on Multidistrict

13

Compl. ¶ 19; D. Dickson Dep., at 23, 34-35.

14

Compl. ¶ 19; D. Dickson Dep., at 68-69, 71-72.

15

Compl. ¶ 19.

16

Mot. for Class Cert, at 5; P. Dickson Dep., at 123, 128.

17

“[I]n multidistrict litigation under 28 U.S.C. § 1407, the transferee court
applies the state law that the transferor court would have applied.” In re Conagra
Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689, 693 (N.D. Ga. 2008); see also In
re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055
(8th Cir. 1996) (“When considering questions of state law, however, the transferee
court must apply the state law that would have applied to the individual cases had they
not been transferred for consolidation.”). Here, both parties agree that South Carolina
law governs the Plaintiffs’ state law claims.
18

See [Doc. 1] under No. 1:13-cv-04222-TWT.

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Litigation transferred all related class actions pending in federal court to this Court for
coordinated or consolidated pretrial proceedings.19
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 Warranties
of Merchantability and Fitness for a Particular Purpose (Count II), Fraudulent
Concealment (Count V), and Violation of the Magnuson-Moss Warranty Act (Count
VI).20 The Plaintiffs seek both damages and equitable relief.21 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.22 This method accounts
for the fact that “each class member’s damages are the expense of removing and
discarding the defective shingles, including the cost of the replacement shingles plus

19

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

20

See Order granting in part and denying in part the Defendant’s Motion
to Dismiss [Doc. 39] under No. 1:13-cv-04222-TWT.
21

The Plaintiffs’ request for declaratory relief was labeled Count VIII.

22

See Mot. for Class Cert., Ex. 33, 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
account for variations in local labor and material costs.”).
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all associated labor costs.”23 In the alternative, they propose that individual class
members can prove their actual replacement costs through a claims process.24
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).25 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.26
These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.27 Failure to establish any one of the

23

Mot. for Class Cert., at 22.

24

Id. at 23.

25

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).
26

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

27

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.28

The party seeking class

certification bears the burden of proving that these requirements are satisfied.29
The decision to grant or deny class certification lies within the sound discretion
of the district court.30 When considering the propriety of class certification, the court
should not conduct a detailed evaluation of the merits of the suit.31 Nevertheless, the

(2006).
28

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

29

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).
30

Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
31

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.32 Frequently, that “rigorous analysis” will entail some
overlap with the merits of the plaintiff’s underlying claim.33
III. Discussion
A. Rule 23(b)(3) Class
1. 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.”34 “An
identifiable class exists if its members can be ascertained by reference to objective
criteria.”35 The analysis of the objective criteria must be administratively feasible,
meaning identifying class members is a “manageable process that does not require
32

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

Cir. 1984).
33

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

34

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.”).
35

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)).
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much, if any, individual inquiry.”36 “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.”37
“[T]he plaintiff must also establish that the records are in fact useful for identification
purposes.”38
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 South Carolina 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 South Carolina.39
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

36

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

37

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).
38

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

Cir. 2015)).
39

Mot. for Class Cert., at 6.

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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.”40
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 were they 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 usually did not
sell the Shingles directly to homeowners. The Plaintiffs contend that there are reliable
methods for determining membership, including markings on the Shingles and
warranty claims.41 But other than a list of warranty claims made in South Carolina, the
Plaintiffs have failed to put forth evidence demonstrating how class members can be

40

See Def.’s Primary Resp. Brief, at 42.

41

Mot. for Class Cert., at 7.

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easily ascertained.42 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.43 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
used is insufficient to demonstrate ascertainability.44 In sum, the Court finds that the
42

See In re Delta/AirTran Baggage Fee Antitrust Litigation, 2016 WL
3770957, at *16 (noting that the plaintiffs provided receipts or credit card statements
documenting their purchases in addition to the defendants’ business records).
43

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).
44

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
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Plaintiffs fail to demonstrate an administratively feasible mechanism for identifying
class members in either category of the class definition.45 Without a clearly
ascertainable class, the Court cannot grant class certification.46 Nevertheless, because
the Court’s Order is subject to immediate appeal under Rule 23(f), the Court will
address the requirements of Rules 23(a) and 23(b)(3) to
determine whether the Plaintiffs
would

otherwise

entitled

to

certification.47

be

class
2

.

Rule 23(A)
a. Numerosity

ascertainable because the plaintiffs only put forth the defendant’s warranty documents
as a possible database to identify putative class members).
45

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.”).
46

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))).
47

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.”48 “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.”49 “[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.”50
The Plaintiffs have met their burden with regard to numerosity. They have
presented evidence that, in South Carolina, Atlas has sold 29,988 squares of
Shingles.51 Based on the assumption that there are 30 shingle squares for the average
South Carolina home, the Plaintiff estimates that there are approximately 1,000 homes
with the Shingles installed.52 The Plaintiffs, therefore, have presented sufficient
evidence that the likely number of homeowners in South Carolina who fall within the
class exceeds the minimum threshold. Moreover, the large number of putative class

48

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

49

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

50

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

1986).
51

See Def.’s Resp. to Master Discovery, at 41.

52

See Mot. for Class Cert., at 9 & n.25.

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members makes joinder impractical. Thus, the Court finds the numerosity requirement
is satisfied.
b. Commonality
The commonality requirement is satisfied if the plaintiffs demonstrate the
presence of questions of law or fact common to the entire class.53 It is not necessary
that all questions of law and fact be common.54 Indeed, “[e]ven a single [common]
question” is sufficient to satisfy the commonality requirement.55 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.”56 “Commonality
requires the plaintiff to demonstrate that the class members ‘have suffered the same
injury.’”57 “This does not mean merely that they all suffered a violation of the same
provision of law.”58 “Their claims must depend upon a common contention . . . of such
a nature that it is capable of classwide resolution – which means that determination

53

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

54

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

55

Id. (alteration in original).

56

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

57

Wal-Mart, 564 U.S. at 349-50 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
58

Id. at 350.

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of its truth or falsity will resolve an issue that is central to the validity of each one of
the claims in one stroke.”59
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.60 These questions of
fact are common to the Plaintiffs’ claims and will generate common answers.61
Accordingly, the Plaintiffs have satisfied the commonality requirement.
c. Typicality
The typicality requirement mandates that the claims and defenses of the
representative plaintiffs are typical of the claims and defenses of the class.62 This

59

Id.

60

See Mot. for Class Cert., at 11.

61

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

62

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.”63 But “[c]lass
members’ claims need not be identical to satisfy the typicality requirement.”64 This is
because “typicality measures whether a sufficient nexus exists between the claims of
the named representatives and those of the class at large.”65 “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.”66
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
63

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).
64

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

65

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)).
66

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.”67 Varying experiences and unique defenses do not necessarily defeat
typicality.68 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.
d. 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.”69 This
requirement serves to uncover conflicts of interest between named parties and the
class they seek to represent.70 A determination of adequacy “encompasses two
separate inquiries: (1) whether any substantial conflicts of interest exist between the

67

City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651
(S.D. Fla. 2010).
68

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.”).
69

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

70

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.”71 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.72 Thus, the Plaintiffs have satisfied Rule 23(a)(4).
3. Rule 23(b)(3)
a. 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.73 To meet the predominance requirement, “the issues in the class action
71

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

2003).
72

See Mot. for Class Cert., Ex. 32.

73

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.”74 “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.”75 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.”76 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.77
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

74

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)).
75

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)).
76

Klay, 382 F.3d at 1255 (quoting Rutstein v. Avis Rent-A-Car Sys., 211
F.3d 1228, 1234 (11th Cir. 2000)).
77

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.78 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.’”79
(i) 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. “Under South Carolina law, to prevail on
a breach of an implied or express warranty claim, Plaintiff would have to demonstrate
the existence of a warranty, its breach, and damages proximately flowing from the
breach.”80 For breach of an implied warranty of merchantability, in particular, a
plaintiff must show “(1) a merchant sold goods; (2) the goods were not ‘merchantable’
at the time of sale; (3) the plaintiff or his property was injured by such goods; (4) the

78

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

79

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

(1997)).
80

Beese v. General Motors Corp., 317 F. Supp. 2d 646, 656 (D.S.C. 2004).

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defect or other condition amounting to a breach . . . proximately caused the injury.”81
“[A]n implied warranty of fitness for a particular purposes arises if the vendor knows
when the contract is formed that the purchaser is relying on the vendor’s skill or
judgment in furnishing the goods.”82 Purchasers of an allegedly defective product
must also show that the defect manifested itself.83 Moreover, a “buyer must within a
reasonable time after he discovers or should have discovered any breach notify the
seller of breach or be barred from any remedy.”84
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.85
There are also numerous reasons a shingle may blister, crack, or suffer from granule

81

Thomas v. Louisiana-Pacific Corp., 246 F.R.D. 505, 511 (D.S.C. 2007).

82

Id. (quoting Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., 843 F.
Supp. 1027, 1036 (D.S.C. 1993)).
83

See Wilson v. Style Crest Prods., Inc., 367 S.C. 653, 659 (2006) (holding
that purchasers of an allegedly defective mobile home anchor system could not bring
a breach of warranty claim without a showing “that the product delivered was not, in
fact, what was promised”).
84

S.C. Code Ann. § 36-2-607(3)(a).

85

See Primary Mot. for Class, Ex. Tab 20, at 137-38.

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loss.86 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 members will involve individualized evidence,
these individual causation questions will predominate at any trial.87 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.88 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.89 All roofs will fail eventually. If
an Atlas Shingle roof survives to the end of normal roof life expectancy, the
86

Id., Ex. Tab 20, at 198.

87

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”).
88

The Plaintiffs also argue that “Atlas simply restates its defense on the
merits, which is not relevant to class certification.” Pls.’ Reply Br., at 12. 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.
89

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 by the alleged manufacturing defect.
If the roof fails due to hail or wind damage or improper installation, the homeownerclass 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.90 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.91
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.

90

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”).
91

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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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
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.92 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.93 The court in
Sanchez-Knutsen framed the plaintiffs’ damages as the diminution in the intrinsic
value of their Explorers, not the repair costs.94 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

92

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

2015).
93

Id. at 533.

94

Id. at 538-39.

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shingles.95 Specifically, the named plaintiffs sought to represent a class of individuals
whose shingles allegedly prematurely cracked.96 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.”97 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.98 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.

95

Brooks v. GAF Materials Corp., No. 8:11-cv-00983-JMC, 2012 WL
5195982, at *1 (D.S.C. Oct. 19, 2012).
96

Id.

97

Id. at *6.

98

Id. at *4.

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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
notify Atlas in writing within thirty days of the real estate transfer for any coverage
to be transferred.99 The third-owner class members are not even eligible to recover
under the 2002 limited warranty.100 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.101 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.

99

See Def.’s Primary Resp. Brief, Ex. G.

100

Id.

101

Id., Exs. G-H.

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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
are sufficient to establish constructive notice.102 But South Carolina 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. 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.
Neese103 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 rights.”104 Thus, the Plaintiffs argue that by routinely failing to insist on
compliance with the notice requirement, the Defendant waived the requirement. The
102

See, e.g., Muehlbauer v. General Motors Corp., 431 F. Supp. 2d 847,
859-60 (N.D. Ill. 2006).
103

293 Ga. App. 838 (2008).

104

Id. at 841.

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Court disagrees. The Neese case concerned whether the defendant waived its notice
requirement with respect to one party.105 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 South Carolina
law, warranty claims must be brought within six years from the date a “breach is or
should have been discovered.”106 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.107 Thus, it is likely a large percentage of the class members’
warranty claims will be barred by the statute of limitations.108

105

Id. at 841-42.

106

S.C. Code Ann. § 36-2-725.

107

See Mot. for Class Cert. Hearing [Doc. 366], at 102 under No. 1:13-md02495-TWT.
108

The Court notes that the issue of tolling will also involve individualized
evidence. “A defendant may be estopped from claiming the statute of limitations as
a defense if ‘the delay that otherwise would give operation to the statute had been
induced by the defendant’s conduct.’” Wiggins v. Edwards, 314 S.C. 126, 130 (1994)
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The Plaintiffs counter with the general rule that individual affirmative defenses
usually do not defeat predominance.109 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)
simply because affirmative defenses may be available against individual members.”110
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.111 Specifically, the Eleventh Circuit noted that affirmative
defenses that are coupled with several other individual questions could defeat
predominance.112 Such is the case here. The statute of limitations defense coupled with

(quoting Dillon Co. Sch. Dist. Two v. Lewis Sheet Metal, 286 S.C. 207, 218 (Ct. App.
1985)). Thus, each class member will need to demonstrate that he or she was hindered
from discovering the defect by an affirmative action by Atlas.
109

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.”).
110

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.)).
111

Id. at 1241.

112

Id.

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the other individual issues discussed above outweigh any common questions raised
by the Plaintiffs.
(ii) Fraudulent Concealment
In Count V 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 establish fraud, the following nine elements must be shown: 1) a
representation or nondisclosure of a material fact, 2) its falsity, 3) its
materiality, 4) either knowledge of its falsity or a reckless disregard of
its truth or falsity, 5) intent that the representation be acted upon, 6) the
hearer’s ignorance of its falsity, 7) the hearer’s reliance on its truth, 8)
the hearer’s right to rely thereon, and 9) the hearer’s consequent and
proximate injury.113
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. The Plaintiffs counter that “under
well-established Eleventh Circuit precedent, the simple fact that reliance is an element

113

Kiriakides v. Atlas Food Sys. & Servs., Inc., 338 S.C. 572, 586 (Ct. App.

2000).
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in a cause of action is not an absolute bar to class certification.”114 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 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.115 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.”116 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.”117 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
114

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

115

Id. at 1246-47.

116

Id. at 1259.

117

Id.

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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
based – go to the heart of these agreements, and that doctors based their
assent upon them.118
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.”119
When presented with such cases, “the Eleventh Circuit has repeatedly found class
certification inappropriate.”120 In this case, there are both material variation in the
118

Id.

119

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).
120

Id. (citing Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d
1330, 1344 (11th Cir. 2006)).
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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
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.121

121

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”).
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(iii) Magnuson-Moss Warranty Act122
The Plaintiffs also seek damages under the Magnuson-Moss Warranty Act
(“MMWA”), 15 U.S.C. § 2301 et seq. Pursuant to MMWA, a putative class member
must prove – in addition to a state law warranty claim – that his or her Shingles are
“consumer products.”123 Consumer product “means any tangible personal property
which is distributed in commerce and which is normally used for personal, family, or
household purposes (including any such property intended to be attached to or
installed in any real property without regard to whether it is so attached or
installed).”124 While the statutory definition of a consumer product is expansive,
relevant regulations have narrowed the scope of the definition. Under 16 C.F.R. §
700.1(e), a product that is becoming part of a house is not a consumer product if it is
being utilized to create the house; however, if the product is being added to an already
existing house, then it is consider a consumer product.125 In other words, if a putative
122

The Magnuson-Moss Warranty Act does not provide a separate cause of
action. Rather, it only provides “additional damages for breaches of warranty under
state law.” Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1200 (N.D.
Ga. 2005).
123

See 15 U.S.C. § 2302; see also Walsh v. Ford Motor Co., 807 F.2d 1000,
1012 (D.C. Cir. 1986).
124

15 U.S.C. § 2301(1).

125

See 16 C.F.R. § 700.1(e) (“roofing, and other structural components of
a dwelling are not consumer products when they are sold as part of real estate covered
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class member purchased a home with the Shingles already installed, he or she did not
purchase a consumer product under MMWA. Thus, to determine whether a class
member has asserted a viable MMWA claim, the jury would need to consider the
individual circumstances of how each putative class member came to own the
Shingles. This individualized inquiry will predominate any common questions.126
b. 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.”127 The factors relevant in determining superiority include:
(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.128

by a written warranty”).
126

It should be noted that the Plaintiffs have also failed to allege that they
provided the necessary pre-suit notice to the Defendant that they were “acting on
behalf of the class.” See 15 U.S.C. § 2310(e).
127

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

128

Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
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Class certification “cannot be denied because the number of potential class members
makes the proceeding complex or difficult.”129 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.”130 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.”131
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
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

129

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

130

Id. at 697-98 (quoting In re Domestic Air Transp. Antitrust Litigation,
137 F.R.D. 677, 693 (N.D. Ga. 1991)).
131

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

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a roof can be “several thousand dollars to tens of thousands of dollars.”132 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.133 The owners
have the option of pursuing their claims in state court, where claims of several
thousands dollars are common.134 In sum, the Court finds that Rule 23(b)’s superiority
requirement is not satisfied.
B. Rule 23(c)(4) Class
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
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.”135 The Plaintiffs

132

See Mot. for Class Cert., Ex. 33, at 47.

133

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.”).
134

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

135

See Pls.’ Primary Reply Br. [Doc. 61], at 25 under No. 1:13-cv-02195TWT. The Plaintiffs incorporate by reference Section V of Plaintiffs’ Reply Brief in
Dishman v. Atlas Roofing Corp. See Pls.’ Reply Br., at 20.
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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.”136 However, there is a split among courts over how
to apply the predominance test when asked to certify an issue class.137 Some courts
have certified issue classes despite a lack of overall predominance.138 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
requirement.”139 These courts note that “the proper interpretation of the interaction

136

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

137

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).”).
138

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.”).
139

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).
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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.”140 The Court finds the
latter interpretation to be persuasive.141 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 member’s 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
eliminate the need for a single trial.”142 As a result, the Court concludes a Rule
23(c)(4) class should not be certified.
C. Rule 23(b)(2) Class
The Plaintiffs seek to certify the following Rule 23(b)(2) class: “All those who
as of the date class notice is issued own a home or other structure in the State of South
140

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

141

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.
142

In re Conagra Peanut Butter Products Liability Litigation, 251 F.R.D.
689, 701 (N.D. Ga. 2008).
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Carolina on which Atlas Chalet or Stratford roofing Shingles are currently
installed.”143 The Complaint requests several declarations: “[t]he Shingles ha[ve] a
defect which results in premature failure”; “Defendant’s warranty fails of its essential
purpose”; “[c]ertain provisions of Defendant’s warranty are void as unconscionable”;
“Defendant must notify owners of the defect”; and “Defendant will reassess all prior
warranty claims and pay the full costs of repairs and damages.”144
The Court concludes that a Rule 23(b)(2) class is inappropriate. “A declaratory
or injunctive relief class pursuant to Rule 23(b)(2) is appropriate only if ‘the
predominant relief sought is injunctive or declaratory.’”145 The monetary relief must
be incidental to the injunctive or declaratory relief.146 “Monetary damages are
incidental when ‘class members automatically would be entitled [to them] once
liability to the class . . . as a whole is established[,]’ and awarding them ‘should not

143

Mot. for Class Cert., at 6.

144

Compl. ¶ 142.

145

DWFII Corp. v. State Farm Mut. Auto Ins. Co., 469 F. App’x 762, 765
(11th Cir. 2012) (quoting Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001)
(citation omitted)).
146

See Murray, 244 F.3d at 812 (“[M]onetary relief predominates in (b)(2)
class actions unless it is incidental to requested injunctive or declaratory relief.”
(emphasis in original) (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411
(5th Cir. 1998))).
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entail complex individualized determinations.’”147 Here, it is clear that the monetary
damages are not incidental to the requested declaratory relief. Indeed, the Plaintiffs
are seeking monetary relief for each putative class member, and the damages
calculation will be individualized. In addition, it appears the Plaintiffs are seeking the
declarations for the purpose of recovering future warranty claims. Rule 23(b)(2)’s
finality requirement does not allow a plaintiff to use declaratory relief to “lay the basis
for a damage award rather than injunctive relief.”148
IV. Conclusion
For these reasons, the Court DENIES the Plaintiffs Patricia and David
Dickson’s Motion for Class Certification [Doc. 54].
SO ORDERED, this 8 day of June, 2017.

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

147

DWFII Corp., 469 F. App’x at 765 (quoting Murray 244 F.3d at 812).

148

Christ v. Beneficial Corp., 547 F.3d 1292, 1298 (11th Cir. 2008) (quoting
7A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1775 (3d ed. 2005)).
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