Denson et al v. Atlas Roofing Corporation

Filing 49

ORDER denying Motion to Certify Class (302) in case 1:13-md-02495-TWT / (41) in case 1:14-cv-00831-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/8/2017. Associated Cases: 1:13-md-02495-TWT, 1:14-cv-00831-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
GEORGE CROTZER and SUSAN
CROTZER, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:14-CV-831-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 George
Crotzer and Susan Crotzer’s Motion for Class Certification [Doc. 41]. For the reasons
set forth below, the Plaintiffs’ Motion for Class Certification [Doc. 41] 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 creating a gas
bubble that permits blistering and cracking.”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
3

Second Am. Compl. ¶ 2.
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

Second Am. Compl. ¶ 13.

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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. ¶ 15.

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 1.
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 George Crotzer and Susan Crotzer, who are residents of
Maylene, Alabama, purchased their home in 2004 with the Shingles already installed
on the roof.13 In the past few years, the Crotzers’ Shingles have deteriorated due to
blistering, cracking, and granule loss.14 Moreover, the Shingles leaked, resulting in
damage to their home.15 On February 25, 2014, the named Plaintiffs filed suit in the
United States District Court for the Northern District of Alabama16 on behalf of
themselves and others similarly situated in the state of Alabama.17 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 Litigation transferred all related class actions

13

Second Am. Compl. ¶ 25.

14

Mot. for Class Cert., Ex. Tab 1, at 4.

15

Id.

16

“[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 Alabama law
governs the Plaintiffs’ state law claims.
17

See [Doc. 1] under No. 1:14-cv-00831-TWT.

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pending in federal court to this Court for coordinated or consolidated pretrial
proceedings.18
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 and Fitness (Count II), Negligent Design (Count III), Fraudulent
Concealment (Count IV), Violation of Alabama’s Extended Manufacturer’s Liability
Doctrine (Count V), Unjust Enrichment (Count VI), and Violation of Alabama’s
Deceptive Trade Practices Act (Count VII).19 The Plaintiffs seek both damages and
equitable relief.20 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.21 This method accounts for the fact that “each class member’s damages are the

18

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

19

See Order granting in part and denying in part the Defendant’s Motion
to Dismiss [Doc. 29] under No. 1:14-cv-00831-TWT.
20

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

21

See Primary 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 account for variations in local labor and material costs.”).
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cost of removing and discarding the defective shingles, and the cost of the
replacement shingles plus all associated labor costs with this remediation.”22 In the
alternative, they propose that individual class members can prove their actual
replacement costs through a claims process.23
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).24 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.25

22

Mot. for Class Cert., at 21.

23

Id. at 23.

24

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)).
25

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

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These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.26 Failure to establish any one of the
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.27

The party seeking class

certification bears the burden of proving that these requirements are satisfied.28

26

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
(2006).
27

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

28

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).
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The decision to grant or deny class certification lies within the sound discretion
of the district court.29 When considering the propriety of class certification, the court
should not conduct a detailed evaluation of the merits of the suit.30 Nevertheless, the
court must perform a “rigorous analysis” of the particular facts and arguments asserted
in support of class certification.31 Frequently, that “rigorous analysis” will entail some
overlap with the merits of the plaintiff’s underlying claim.32
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.”33 “An

29

Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
30

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

31

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

Cir. 1984).
32

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

33

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
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identifiable class exists if its members can be ascertained by reference to objective
criteria.”34 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.”35 “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.”36
“[T]he plaintiff must also establish that the records are in fact useful for identification
purposes.”37
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 Alabama 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

proposed class meets the Rule 23 requirements.”).
34

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)).
35

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

36

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).
37

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

Cir. 2015)).
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shingles on a home or other structure in the State of Alabama which they
currently own or previously owned.38
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.”39
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

38

Mot. for Class Cert., at 3.

39

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

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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.40 But other than a list of warranty claims made in Alabama, the
Plaintiffs have failed to put forth evidence demonstrating how class members can be
easily ascertained.41 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.42 The Plaintiffs also do not submit any
40

Mot. for Class Cert., at 4-5, Ex. Tab 2.

41

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).
42

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)),
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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.43 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.44 Without a clearly
ascertainable class, the Court cannot grant class certification.45 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 be entitled to class certification.46

appeal docketed, No. 16-2653 (3d Cir. June 2, 2016).
43

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).
44

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.”).
45

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))).
46

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

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2. Rule 23(A)
a. Numerosity
To satisfy the numerosity requirement, the Plaintiffs must show that joinder of
all members of the putative class would be “impractical.”47 “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.”48 “[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.”49
The Plaintiffs have met their burden with regard to numerosity. They have
presented evidence that, in Alabama, Atlas has sold 169,147 squares of Shingles.50
Based on the assumption that there are 30 shingle squares for the average Alabama
home, the Plaintiffs estimate that there are approximately 5,500 homes with the
Shingles installed.51 The Plaintiffs, therefore, have presented sufficient evidence that

47

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

48

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

49

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

1986).
50

See Mot. for Class Cert., Ex. Tab 4.

51

See Mot. for Class Cert., at 5.

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the likely number of homeowners in Alabama who fall within the class exceeds the
minimum threshold. Moreover, the large number of putative class members makes
joinder impractical. Thus, the Court finds that 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.52 It is not necessary
that all questions of law and fact be common.53 Indeed, “[e]ven a single [common]
question” is sufficient to satisfy the commonality requirement.54 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.”55 “Commonality
requires the plaintiff to demonstrate that the class members ‘have suffered the same
injury.’”56 “This does not mean merely that they all suffered a violation of the same
provision of law.”57 “Their claims must depend upon a common contention . . . of such

52

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

53

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

54

Id. (alteration in original).

55

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

56

Wal-Mart, 564 U.S. at 349-50 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
57

Id. at 350.

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a nature that it is capable of classwide resolution – which means that 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.”58
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.59 These questions of
fact are common to the Plaintiffs’ claims and will generate common answers.60
Accordingly, the Plaintiffs have satisfied the commonality requirement.

58

Id.

59

See Mot. for Class Cert., at 8.

60

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

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

61

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

62

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).
63

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

64

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)).
65

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

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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
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.”66 Varying experiences and unique defenses do not necessarily defeat
typicality.67 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.”68 This

66

City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651
(S.D. Fla. 2010).
67

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.”).
68

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

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requirement serves to uncover conflicts of interest between named parties and the
class they seek to represent.69 A determination of adequacy “encompasses two
separate inquiries: (1) whether any substantial conflicts of interest exist between the
representatives and the class; and (2) whether the representatives will adequately
prosecute the action.”70 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.71 Second, there is no evidence that the named
Plaintiffs will not vigorously and adequately pursue the asserted claims on behalf of

69

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

70

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

2003).
71

The Defendant argues that the Crotzers do not have standing to assert
their declaratory relief claim, making them inadequate class representatives. However,
the Court finds that the Crotzers do have standing. As the Court noted in its Order
granting in part and denying in part the Defendant’s Motion to Dismiss, “[t]he
Plaintiffs may establish redressability if they show that the ‘practical consequence’ of
the declaratory relief ‘would amount to a significant increase in the likelihood that the
[Plaintiffs] would obtain relief that directly redresses the injury suffered.’” In re Atlas
Roofing Corp. Chalet Shingle Products Liability Litigation, No. 1:13-md-2495-TWT,
2015 WL 114285, at *2 (N.D. Ga. Jan. 8. 2015) (quoting Utah v. Evans, 536 U.S. 452,
464 (2002)). The Plaintiffs’ requested declarations would establish an essential
component of liability, making it more likely that they would obtain relief from the
Defendant.
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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
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
72

See Mot. for Class Cert., Ex. Tab 6.

73

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

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)).
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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
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

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.

78

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

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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 Alabama law, to prevail on a
breach of express or implied warranty claim, a plaintiff must demonstrate (1) the
existence of the warranty, (2) breach, and (3) damages proximately caused by the
breach.80 Moreover, for both warranty claims, “[t]he 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.”81
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.82
79

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

(1997)).
80

See Clark v. Allied Healthcare Products, Inc., 601 So.2d 902, 903 (Ala.
1992) (“In order to sustain a cause of action under breach of warranty, plaintiff must
prove the existence of such warranty, breach, and proximate causation of damages.”).
81

Ala. Code § 7-2-607(3)(a).

82

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

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There are also numerous reasons a shingle may blister, crack, or suffer from granule
loss.83 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.84 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.85 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.86 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.
83

Id., Ex. Tab 20, at 198.

84

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”).
85

The Plaintiffs incorporate by reference Section III.A.3(a) of the
Plaintiffs’ Reply Brief in Dishman v. Atlas Roofing Corp. See Pls.’ Reply Br., at 6.
86

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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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.87 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.88
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.

87

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”).
88

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.89 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.90 The court in
Sanchez-Knutsen framed the plaintiffs’ damages as the diminution in the intrinsic
value of their Explorers, not the repair costs.91 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

89

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

2015).
90

Id. at 533.

91

Id. at 538-39.

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shingles.92 Specifically, the named plaintiffs sought to represent a class of individuals
whose shingles allegedly prematurely cracked.93 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.”94 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.95 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.

92

Brooks v. GAF Materials Corp., No. 8:11-cv-00983-JMC, 2012 WL
5195982, at *1 (D.S.C. Oct. 19, 2012).
93

Id.

94

Id. at *6.

95

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.96 The third-owner class members are not even eligible to recover
under the 2002 limited warranty.97 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.98 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.

96

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

97

Id.

98

Id., Exs. G-H.

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In response, the Plaintiffs first 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
Stewart v. Bradley99 in support of their contention. There, the Alabama Court of Civil
Appeals noted that the “intention to waive a right may be found where one’s course
of conduct indicates the same or is inconsistent with any other intention.”100 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 Stewart
case concerned whether the defendant waived its notice requirement with respect to
one party.101 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 requirements are individual issues that cannot be
resolved through common evidence.
99

15 So.3d 533, 543-44 (Ala. Civ. App. 2008).

100

Id. at 543 (quoting Waters v. Taylor, 527 So.2d 139, 141 (Ala. Civ. App.

1988)).
101

Id. at 543-44.

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In addition to the issues discussed above, individualized evidence will be
necessary to prove privity – an element of a breach of implied warranty of
merchantability claim. Under Alabama law, “implied warranties [of merchantability]
apply only to ‘sellers’ and not to manufacturers.”102 Thus, to demonstrate a breach of
an implied warranty of merchantability, each class member will need to demonstrate
that he or she purchased Shingles directly from Atlas. The Plaintiffs counter by
arguing that “third-party beneficiaries of the implied warranty of merchantability are
in sufficient ‘privity’ with the manufacturer to bring an action for its breach.”103 But
this statement is in direct contradiction with the Alabama Supreme Court’s holding
in Blackmon v. Powell.104
Atlas is also likely to employ affirmative defenses against many class members,
with the most likely defense being the statute of limitations. In Alabama, “[a]n action
for breach of any contract for sale must be commenced within four years after the

102

Selby v. Goodman Mfg. Co., LP, No. 2:13-cv-2162-RDP, 2014 WL
2740317, at *3 (N.D. Ala. June 17, 2014) (citing Blackmon v. Powell, 132 So.3d 1,
6 (Ala. 2013)).
103

Mot. for Class Cert., at 15.

104

See Blackmon, 132 So.3d at 6 (holding that implied warranties of
merchantability “are applicable only to sellers” (quoting Ex parte General Motors
Corp., 769 So.2d 903, 910 (Ala. 1999))).
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cause of action has accrued.”105 A cause of action accrues when a breach occurs.106 For
Atlas’s limited warranty, a breach occurs when Atlas fails to repair the Shingles.107 For
the Plaintiffs’ other warranty claims, “[a] breach of warranty occurs when tender of
delivery is made, except that where a warranty explicitly extends to future
performance of the goods, . . . the cause of action accrues when the breach is or should
have been discovered.”108 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.109 Thus, it is likely a large percentage of the class members’
warranty claims will be barred by the statute of limitations.110

105

Ala. Code § 7-2-725.

106

Id.

107

See Brown v. General Motors Corp., 14 So.3d 104, 113 (Ala. 2009).

108

Ala. Code § 7-2-725.

109

See Mot. for Class Cert. Hearing [Doc. 366], at 102 under No. 1:13-md02495-TWT.
110

The Court notes that the issue of estoppel will also involve individualized
evidence. “Conduct which is sufficient to give rise to an estoppel against the pleading
of the statute of limitations must amount to an affirmative inducement to the plaintiff
to delay bringing the action.” Selby v. Goodman Mfg. Co., LP, No. 2:13-cv-2162RDP, 2014 WL 2740317, at *2 (N.D. Ala. June 17, 2014). Thus, each class member
will need to demonstrate that he or she was hindered from discovering the defect by
an affirmative action by Atlas.
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The Plaintiffs counter with the general rule that individual affirmative defenses
usually do not defeat predominance.111 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.”112
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.113 Specifically, the Eleventh Circuit noted that affirmative
defenses that are coupled with several other individual questions could defeat
predominance.114 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.

111

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.”).
112

Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1240 (11th Cir.
2016) (quoting WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 4:55 (5th
ed.)).
113

Id. at 1241.

114

Id.

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(ii) Negligent Design
In Count III of their Complaint, the Plaintiffs assert a negligent design claim
against the Defendant. To state a negligent design claim, a plaintiff must demonstrate
that the product is defective and “that the manufacturer failed to exercise due care in
the product’s manufacture, design, or sale.”115 Moreover, a plaintiff must prove that
the defective product caused the alleged damages.116 Like the breach of warranty
claims discussed above, the issue of causation will require individualized evidence.
In addition, the Defendant points out that the economic loss rule may bar some of the
class members’ claims. “Under [the economic-loss] rule, a cause of action does not
arise . . . where a product malfunctions or is defective and thereby causes damage only
to the product itself.”117 Thus, in order to assert a negligence claim, each class member
will need to demonstrate some other form of damage. This inquiry will create
numerous individualized questions. As a result, the Court finds that common issues
do not predominate with regard to the Plaintiffs’ negligence claim.
(iii) Violation of Alabama’s Extended Manufacturer’s
Liability Doctrine
115

McMahon v. Yamaha Motor Corp., U.S.A., 95 So.3d 769, 772 (Ala.

2012).
116

Selby v. Goodman Mfg. Co., LP, No. 2:13-cv-2162-RDP, 2014 WL
2740317, at *5 (N.D. Ala. June 17, 2014).
117

Id. (quoting Ford Motor Co. v. Rice, 726 So.2d 626, 631 (Ala. 1998)).

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To establish a prima facie case under the AEMLD, Plaintiff must show:
(1) that [Defendant] manufactured, designed or sold a defective,
unreasonably dangerous product; (2) that the product reached the
consumer in substantially the same condition in which it was sold; and
(3) that the product injured the consumer when it was put to its intended
use.118
Thus, similar to a negligent design claim, to establish a claim under the AEMLD, each
class member will have to demonstrate his or her injury was caused by the alleged
defective condition which made the product unreasonably dangerous. This will require
individualized inquiries like those described above. Moreover, claims under the
AEMLD are also subject to the economic loss rule.119 The class members, therefore,
will need to demonstrate damage to other property to recover under the AEMLD. As
a result, individualized issue predominate the Plaintiffs’ AEMLD claim.
(iv) Fraudulent Concealment
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 state a fraudulent concealment claim, a plaintiff
must demonstrate the following elements: “(1) a duty on the part of the defendant to

118

Id. at *4 (quoting McClain v. Coca-Cola Co. Distributor, No. 2:08cv614WHA, 2009 WL 2985693, at *5 (M.D. Ala. Sept. 16, 2009)).
119

Id.

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disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3)
inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.”120
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
in a cause of action is not an absolute bar to class certification.”121 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.122 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.”123 Second, the court found “that, based on the nature of the
120

Id. at *5 (quoting Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61,
63 (Ala. 1996)).
121

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

122

Id. at 1246-47.

123

Id. at 1259.

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misrepresentations at issue, the circumstantial evidence that can be used to show
reliance is common to the whole class.”124 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
based – go to the heart of these agreements, and that doctors based their
assent upon them.125
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.

124

Id.

125

Id.

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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.”126
When presented with such cases, “the Eleventh Circuit has repeatedly found class
certification inappropriate.”127 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. Indeed,
there is no evidence that Atlas engaged in a uniform marketing scheme. This is further
complicated by third party wholesalers, retailers, and contractors who made the
purchase decisions for the vast majority of the Shingle purchases. 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

126

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).
127

Id. (citing Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d
1330, 1344 (11th Cir. 2006)).
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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.128
(v) Unjust Enrichment
Under Alabama law, to establish an unjust enrichment claim, “the plaintiff must
show that the ‘defendant holds money which, in equity and good conscience, belongs
to the plaintiff or holds money which was improperly paid to defendant because of
mistake or fraud.’”129 Courts generally find unjust enrichment claims inappropriate for
class certification because they require the court to “examine the particular
circumstances of an individual case and assure itself that, without remedy, inequity
would result or persist.”130 Here, the Court is unwilling to certify the Plaintiffs’ unjust

128

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”).
129

Avis Rent A Car Sys, Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala. 2003)
(quoting Dickinson v. Cosmos Broad Co., 782 So.2d 260, 266 (Ala. 2000)); see also
Portofino Seaport Vill., LLC v. Welch, 4 So.3d 1095, 1098 (Ala. 2008).
130

Vega v. T-Mobile USA, Inc., 564 F. 3d 1256, 1276 (11th Cir. 2009); see
also Avis Rent A Car Sys., 876 So.2d at 1123 (“Because unjust-enrichment claims are
fact specific to each case, [the Alabama Supreme Court] has repeatedly held that such
claims are unsuitable for class-action treatment.”).
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enrichment claim. Each class member’s claim will be predominated by individual
questions. For example, in order to determine whether a class member paid money by
mistake or fraud, the Court will have to conduct individualized inquiries into that class
member’s state of mind. Some class members may have purchased the Shingles
through a roofer without any knowledge of Atlas’s representations while others may
have examined Atlas’s advertising materials in detail. Moreover, on a case-by-case
basis, the Court would have to determine the amount each class member paid to Atlas.
Some class members purchased their homes with the Shingles already installed. Such
class members did not pay money to Atlas by mistake or fraud. For these reasons, the
Court will not certify the Plaintiffs’ unjust enrichment claim.

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(vi) Violation of Alabama’s Deceptive Trade Practices
Act
In Count VII of the Second Amended Complaint, the Plaintiffs seek to certify
a claim under Alabama’s Deceptive Trade Practices Act (“ADTPA”).131 The Plaintiffs
allege that the Defendant violated four subsections: “(5) Representing that goods or
services have sponsorship, approval, characteristics, ingredients, uses, benefits, or
qualities that they do not have”; “(7) Representing that goods or services are of a
particular standard, quality, or grade, or that goods are of a particular style or model,
if they are of another”; “(9) Advertising goods or services with intent not to sell them
as advertised”; “(27) Engaging in any other unconscionable, false, misleading, or
deceptive act or practice in the conduct of trade or commerce.”132 But in order for an
individual class member to recover under the ADTPA, the class member must prove

131

“[A]n election to pursue the civil remedies prescribed in this chapter shall
exclude and be a surrender of all other rights and remedies available at common law,
by statute or otherwise, for fraud, misrepresentation, deceit, suppression of material
facts or fraudulent concealment arising out of any act, occurrence or transaction
actionable under this chapter.” Ala. Code. § 8-19-15. Consequently, if a class member
pursues a claim under the ADTPA, he or she will be barred from asserting a common
law claim for fraud. See Holmes v. Behr Process Corp., No. 2:15-cv-0454-WMA,
2015 WL 7252662, at *2-3 (N.D. Ala. Nov. 17, 2015).
132

Ala. Code § 8-19-5.

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that (1) he or she is a “consumer,”133 (2) made a pre-suit demand,134 and (3) suffered
monetary damages as a result of the Defendant’s violation of the Act.135 Additionally,
a claim under the ADTPA must be within “one year after the person bringing the
action discovers or reasonably should have discovered the act or practice.”136 These
inquiries will demand individualized evidence which will predominate the claim. As
a result, the Plaintiffs’ ADTPA claim should not be certified.
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.”137 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

133

Id. § 8-19-3(2) (defining consumer as “any natural person who buys
goods or services for personal, family, or household use”).
134

Id. § 8-19-10(e).

135

Id. § 8-19-10(a).

136

Id. § 8-19-14.

137

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

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(D) the likely difficulties in managing a class action.138
Class certification “cannot be denied because the number of potential class members
makes the proceeding complex or difficult.”139 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.”140 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.”141
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

138

Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
139

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

140

Id. at 697-98 (quoting In re Domestic Air Transp. Antitrust Litigation,
137 F.R.D. 677, 693 (N.D. Ga. 1991)).
141

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

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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.”142 Thus, this
case is unlike class actions where the class members have suffered only a minor harm
and would not pursue their claims but for the class action mechanism.143 The owners
have the option of pursuing their claims in state court, where claims of several
thousands dollars are common.144 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

142

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

143

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.”).
144

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

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shingles; and (4) whether Atlas fraudulently concealed the defect.”145 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.”146 However, there is a split among courts over how
to apply the predominance test when asked to certify an issue class.147 Some courts
have certified issue classes despite a lack of overall predominance.148 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

145

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 23.
146

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

147

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).”).
148

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.”149 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.”150 The Court finds the
latter interpretation to be persuasive.151 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

149

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).
150

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

151

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.”152 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
Alabama on which Atlas Chalet or Stratford roofing Shingles are currently
installed.”153 The Complaint requests several declarations: “[t]he Shingles have a
defect which results in premature failure”; “Defendant’s warranty fails of its essential
purpose”; “Defendant’s warranty is void as unconscionable”; and “blistering,
cracking, and granular loss are manufacturing defects that require Atlas to honor
future warranty claims by members of the Declaratory Relief Class.”154
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.’”155 The monetary relief must
152

In re Conagra Peanut Butter Products Liability Litigation, 251 F.R.D.
689, 701 (N.D. Ga. 2008).
153

Mot. for Class Cert., at 4.

154

Second Am. Compl. ¶ 157.

155

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))
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be incidental to the injunctive or declaratory relief.156 “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
entail complex individualized determinations.’”157 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.
IV. Conclusion
For these reasons, the Court DENIES the Plaintiffs George Crotzer and Susan
Crotzer’s Motion for Class Certification [Doc. 41].
SO ORDERED, this 8 day of June, 2017.

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

156

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))).
157

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

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