Stratford Club Condominium Association v. Atlas Roofing Corporation
Filing
43
OPINION AND ORDER denying Motion to Certify Class (304) in case 1:13-md-02495-TWT / (38) in case 1:14-cv-01071-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/8/2017. Associated Cases: 1:13-md-02495-TWT, 1:14-cv-01071-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
STRATFORD CLUB
CONDOMINIUM ASSOCIATION
on behalf of itself and all others
similarly situated,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:14-CV-1071-TWT
ATLAS ROOFING CORPORATION
doing business as
Meridian Roofing Company,
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 Plaintiff Stratford
Club Condominium Association’s Motion for Class Certification [Doc. 38]. For the
reasons set forth below, the Plaintiff’s Motion for Class Certification [Doc. 38] is
DENIED.
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I. Background
The Plaintiff and putative class members are owners 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 Plaintiff alleges that the Shingles were
defective at the time of sale due to a flaw in the manufacturing process.4 Specifically,
“the Shingles contain excessive moisture which creates gas bubbles in the Shingles
when they are exposed to the sun and results in cracking, blistering, and premature
deterioration of the Shingles.”5 The Plaintiff further alleges that despite Atlas’s
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
Am. Compl. ¶ 2.
3
Id.
4
Id. ¶ 4. In support of its argument regarding the alleged defects in the
Shingles, the Plaintiff relies 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 3.
5
Am. Compl. ¶ 21.
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knowledge of the defect, Atlas did nothing to correct the defective design and
continued to market and warrant the Shingles as durable.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. ¶ 6.
7
See Primary Mot. for Class Cert., Exs. Tab 23-26. The Plaintiff
incorporates by reference the background section of the 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 Plaintiff Stratford Club Condominium Association (“Stratford”)
consists of the unit owners at the Stratford Club Condominium, which is located in
Leesburg, Virginia.13 The condominium community was built in 2004-2005, and the
Shingles were installed on the roofs of the buildings at the time of construction.14
Stratford is responsible for the maintenance and repair of the roofs, including the
Shingles, on the buildings in the condominium community.15 Beginning in 2009,
Stratford experienced several Shingles blowing off roofs and several leaks.16
Moreover, Stratford hired roofers who observed blistering, cracking, and granule loss
on the Shingles.17 Eventually, Stratford filed a warranty claim with Atlas, but Atlas
failed to respond to the claim.18
On March 25, 2014, the Plaintiff filed suit in the United States District Court
for the Eastern District of Virginia19 on behalf of itself and others similarly situated
13
Am. Compl. ¶ 9.
14
Mot. for Class Cert., at 2.
15
Id., Ex. Tab 2, at 9-12.
16
Id., Ex. Tab 3, at 24-26, 34.
17
Id., Ex. Tab 6, at 15-16.
18
Id., Ex. Tab 3, at 88-90; Ex. Tab 6, at 12-13, 51, 53-54.
19
“[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
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in the state of Virginia.20 It seeks to bring its suit as a class action. Because similar
consumer class actions were filed in several other states, the Judicial Panel on
Multidistrict Litigation transferred all related class actions pending in federal court to
this Court for coordinated or consolidated pretrial proceedings.21
After the Motion to Dismiss stage, the Plaintiff’s 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), and Fraudulent
Concealment (Count V).22 As damages, the Plaintiff seeks the cost of replacing the
Shingles. It proposes two methods for calculating the replacement costs. First, it states
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
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 Virginia law
governs the Plaintiff’s state law claims.
20
See [Doc. 1] under No. 1:14-cv-01071-TWT.
21
See Transfer Order [Doc. 1] under No. 1:13-md-02495-TWT.
22
See Order granting in part and denying in part the Defendant’s Motion
to Dismiss [Doc. 33] under No. 1:14-cv-01071-TWT.
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roofs.23 This method accounts for the fact that “each class member’s damages are the
cost of removing and discarding the defective shingles, and the cost of the
replacement shingles plus all associated labor costs with this remediation.”24 In the
alternative, the Plaintiff proposes that individual class members can prove their actual
replacement costs through a claims process.25
II. Class Certification Standard
To maintain a case as a class action, the party seeking class certification must
satisfy each of the prerequisites of Rule 23(a) and at least one of the provisions of
Rule 23(b).26 Rule 23(a) sets forth the four prerequisites to maintain any claim as a
class action:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if: (1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and (4) the
23
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.”).
24
Mot. for Class Cert., at 21.
25
Id.
26
Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004), abrogated
in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008)).
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representative parties will fairly and adequately protect the interests of
the class.27
These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.28 Failure to establish any one of the
four factors precludes certification. In addition, under Rule 23(b), the individual
plaintiffs must convince the Court that: (1) prosecuting separate actions by or against
individual members of the class would create a risk of prejudice to the party opposing
the class or to those members of the class not parties to the subject litigation; (2) the
party opposing the class has refused to act on grounds that apply generally to the class,
necessitating final injunctive or declaratory relief; or (3) questions of law or fact
common to the members of the class predominate over any questions affecting only
individual members and that a class action is superior to other available methods for
fair and efficient adjudication of the controversy.29
The party seeking class
certification bears the burden of proving that these requirements are satisfied.30
27
FED. R. CIV. P. 23(a).
28
Cooper v. Southern Co., 390 F.3d 695, 711 n.6 (11th Cir. 2004),
overruled in part on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58
(2006).
29
FED. R. CIV. P. 23(b).
30
General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Valley
Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
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The decision to grant or deny class certification lies within the sound discretion
of the district court.31 When considering the propriety of class certification, the court
should not conduct a detailed evaluation of the merits of the suit.32 Nevertheless, the
court must perform a “rigorous analysis” of the particular facts and arguments asserted
in support of class certification.33 Frequently, that “rigorous analysis” will entail some
overlap with the merits of the plaintiff’s underlying claim.34
31
Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
32
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).
33
Falcon, 457 U.S. at 161; Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th
Cir. 1984).
34
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-52 (2011).
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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.”35 “An
identifiable class exists if its members can be ascertained by reference to objective
criteria.”36 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.”37 “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.”38
35
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.”).
36
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)).
37
Id. (quoting NEWBERG ON CLASS ACTIONS § 3.3 (5th ed.)).
38
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
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“[T]he plaintiff must also establish that the records are in fact useful for identification
purposes.”39
Here, the Plaintiff seeks 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 Virginia on which Atlas Chalet or Stratford
roofing shingles are currently installed; and/or (b) incurred unreimbursed
costs to repair or replace Atlas Chalet or Stratford roofing shingles on a
home or other structure in the State of Virginia which they currently own
or previously owned.40
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.”41
Bussey, 562 F. App’x at 787).
39
Id. (quoting Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 947 (11th
Cir. 2015)).
40
Mot. for Class Cert., at 4. The Plaintiff is no longer seeking certification
of a Rule 23(b)(2) class. See Pl.’s Reply Br., at 20 n.10.
41
See Def.’s Primary Resp. Brief, at 42.
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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 Plaintiff alleges 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 Plaintiff has 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 Plaintiff contends that there are reliable methods for
determining membership, including markings on the Shingles and warranty claims.42
But other than a list of warranty claims made in Virginia, the Plaintiff has failed to put
forth evidence demonstrating how class members can be easily ascertained.43 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.
42
Mot. for Class Cert., Ex. Tab 7.
43
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).
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In addition, the Plaintiff does 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.44 The Plaintiff also does 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.45 In sum, the Court finds that the Plaintiff fails to
demonstrate an administratively feasible mechanism for identifying class members in
either category of the class definition.46 Without a clearly ascertainable class, the
44
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).
45
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).
46
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.”).
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Court cannot grant class certification.47 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 Plaintiff would otherwise be
entitled to class certification.48
2. Rule 23(A)
a. Numerosity
To satisfy the numerosity requirement, the Plaintiff must show that joinder of
all members of the putative class would be “impractical.”49 “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.”50 “[W]hile there is no fixed
47
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))).
48
FED. R. CIV. P. 23(f).
49
FED. R. CIV. P. 23 (a)(1).
50
Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986).
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numerosity rule, generally less than twenty-one is inadequate, more than forty
adequate, with numbers between varying according to other factors.”51
The Plaintiff has met its burden with regard to numerosity. It has presented
evidence that, in Virginia, Atlas has sold 24,215 squares of Shingles.52 Based on the
assumption that there are 30 shingle squares for the average Virginia home, the
Plaintiff estimates that there are approximately 807 homes with the Shingles
installed.53 The Plaintiff, therefore, has presented sufficient evidence that the likely
number of homeowners in Virginia who fall within the class exceeds the minimum
threshold. Moreover, the large number of putative class members makes joinder
impractical. Thus, the Court finds the numerosity requirement is satisfied.
b. Commonality
The commonality requirement is satisfied if the named plaintiff demonstrates
the presence of questions of law or fact common to the entire class.54 It is not
necessary that all questions of law and fact be common.55 Indeed, “[e]ven a single
51
Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.
1986).
52
See Mot. for Class Cert., Ex. Tab 9.
53
See id., at 7.
54
FED. R. CIV. P. 23 (a)(2).
55
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).
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[common] question” is sufficient to satisfy the commonality requirement.56 But the
issues still must be susceptible to class-wide proof, and the plaintiff’s claims must
share “the same essential characteristics as the claims of the class at large.”57
“Commonality requires the plaintiff to demonstrate that the class members ‘have
suffered the same injury.’”58 “This does not mean merely that they all suffered a
violation of the same provision of law.”59 “Their claims must depend upon a common
contention . . . of such 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.”60
Here, the Court finds that the Plaintiff has sufficiently demonstrated
commonality. The Plaintiff alleges 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
56
Id. (alteration in original).
57
Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004).
58
Wal-Mart, 564 U.S. at 349-50 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
59
Id. at 350.
60
Id.
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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.61 These questions of
fact are common to the Plaintiff’s claims and will generate common answers.62
Accordingly, the Plaintiff has 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.63 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.”64 But “[c]lass
members’ claims need not be identical to satisfy the typicality requirement.”65 This is
because “typicality measures whether a sufficient nexus exists between the claims of
61
See Mot. for Class Cert., at 9-10.
62
See Wal-Mart, 564 U.S. at 350.
63
FED. R. CIV. P. 23(a)(3).
64
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).
65
Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012).
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the named representatives and those of the class at large.”66 “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.”67
Here, the Plaintiff’s claims arise from the same allegations of wrongful conduct
as the claims of the putative class members. Specifically, all the claims are based on
the sale of Shingles which allegedly suffer from the same defect. Moreover, the
Plaintiff’s 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 Plaintiff, there is no typical plaintiff, and
that individualized defenses render the Plaintiff’s claims atypical. To be sure, the
named Plaintiff experienced different weather conditions, installation, and
maintenance of its roofs than the putative class members. In addition, the named
Plaintiff’s warranties are not necessarily typical of the class as a whole. Nevertheless,
“the showing required for typicality is not demanding.”68 Varying experiences and
66
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)).
67
Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984).
68
City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651
(S.D. Fla. 2010).
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unique defenses do not necessarily defeat typicality.69 If a “sufficient nexus” exists –
as the Court found above – then the typicality requirement is met. Thus, the Court
concludes that the Plaintiff has 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.”70 This
requirement serves to uncover conflicts of interest between named parties and the
class they seek to represent.71 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.”72 The Court finds that the named Plaintiff and its counsel
adequately represent the class. First, there is no evidence of any conflicts of interest
between the named Plaintiff and the class. As noted above, the named Plaintiff and the
69
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.”).
70
FED. R. CIV. P. 23(a)(4).
71
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).
72
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.
2003).
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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
Plaintiff 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 Plaintiff has presented evidence that proposed class counsel
have extensive experience with class actions and are qualified to conduct this
litigation.73 Thus, the Plaintiff has satisfied Rule 23(a)(4).
3. Rule 23(b)(3)
a. Predominance
The Plaintiff seeks class certification under Rule 23(b)(3). To certify a Rule
23(b)(3) class, the Plaintiff must demonstrate two prerequisites: predominance and
superiority.74 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.”75 “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
73
See Mot. for Class Cert., Ex. Tab 12.
74
FED. R. CIV. P. 23(b)(3).
75
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)).
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injunctive and monetary relief.”76 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.”77 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.78
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.79 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
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)).
77
Klay, 382 F.3d at 1255 (quoting Rutstein v. Avis Rent-A-Car Sys., 211
F.3d 1228, 1234 (11th Cir. 2000)).
78
Id.
79
817 F.3d 1225, 1234 (11th Cir. 2016).
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situated, without sacrificing procedural fairness or bringing about other undesirable
results.’”80
(i) Breach of Express and Implied Warranties
In Counts I and II of its Amended Complaint, the Plaintiff alleges that the
Defendant violated its express and implied warranties. To prove a breach of warranty
claim, a plaintiff must demonstrate: “(1) a legally enforceable obligation of a
defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and
(3) injury or damage to the plaintiff caused by the breach of obligation.”81 For breach
of the implied warranty of fitness for a particular purpose, the plaintiff must prove:
“(1) the seller had reason to know the particular purpose for which the buyer required
the goods, (2) the seller had reason to know the buyer was relying on the seller’s skill
or judgment to furnish appropriate goods, and (3) the buyer in fact relied upon the
seller’s skill or judgment.”82 And for breach of implied warranty of merchantability,
80
Id. at 1235 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615
(1997)).
81
Crosslin v. Sears Auto. & Tire, No. 1:14CV00030, 2014 WL 3673326,
at *2 (W.D. Va. July 23, 2014) (quoting Ulloa v. QSP, Inc., 624 S.E.2d 43, 48 (Va.
2006)).
82
Beard Plumbing & Heating, Inc. v. Thompson Plastics, Inc., 152 F.3d
313, 317-18 (4th Cir. 1998) (quoting Medcom, Inc. v. C. Arthur Weaver Co., 232 Va.
80, 84-85 (1986)).
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a plaintiff must establish that there is a contract for the sale of a good, that the seller
is a merchant of the kind of good being sold, and that the goods were defective.83
Here, the Court finds that – even if the Plaintiff 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.84
There are also numerous reasons a shingle may blister, crack, or suffer from granule
loss.85 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.86 In response, the
Plaintiff argues that if the jury agrees with its argument that a defect existed in every
Shingle at the time it was sold, then Atlas’s arguments regarding alternative causation
83
Va. Code § 8.2-314; see also Walters v. Holiday Motor Corp., No. 7:12cv-00011, 2012 WL 5465012, at *3 (W.D. Va. May 21, 2012).
84
See Primary Mot. for Class Cert., Ex. Tab 20, at 137-38.
85
Id., Ex. Tab 20, at 198.
86
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”).
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will be negated. Not so. Because the Plaintiff seeks 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.87 All roofs will fail eventually. If
an Atlas Shingle roof survives to the end of normal roof life expectancy, the
homeowner-class member has not been damaged by the alleged manufacturing defect.
If the roof fails due to hail or wind damage or improper installation, the 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.88 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.89
87
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.”).
88
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”).
89
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
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Here, even if the Plaintiff proves 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 class members who
have already had their roofs replaced or repaired, this will be an especially factintensive inquiry.
The Plaintiff cites two cases – Sanchez-Knutsen v. Ford Motor Co. and Brooks
v. GAF Materials Corp. – which it contends support its argument. However, the Court
finds that these cases do not help the Plaintiff. In Sanchez-Knutsen, the court
dismissed the need for individual inquiries into causation, concluding that the
evidence did not justify the defendant’s concerns.90 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.91 The court in
Sanchez-Knutsen framed the plaintiffs’ damages as the diminution in the intrinsic
value of their Explorers, not the repair costs.92 Thus, the court did not face the same
causation issues presented in this instant case. Here, each class member will need to
argued by Ford.”).
90
Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 538 (S.D. Fla.
2015).
91
Id. at 533.
92
Id. at 538-39.
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prove that the alleged defect caused his or her Shingles to prematurely fail, not just
that the defect exists. This will likely create substantial causation inquiries when
deciding the class members’ claims.
Brooks is also distinguishable. There, homeowners sued GAF Materials Corp.
(“GAF”), which manufactures roofing materials, over allegedly defective roof
shingles.93 Specifically, the named plaintiffs sought to represent a class of individuals
whose shingles allegedly prematurely cracked.94 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.”95 While the Plaintiff, here, presents 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
93
Brooks v. GAF Materials Corp., No. 8:11-cv-00983-JMC, 2012 WL
5195982, at *1 (D.S.C. Oct. 19, 2012).
94
Id.
95
Id. at *6.
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torn.96 Here, the breadth of the Plaintiff’s 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 Plaintiff’s proposed class presents more
individualized causation questions.
Individual issues will also predominate with respect to two requirements in
Atlas’s express warranty: transferability and notice. Transferability presents individual
questions because the 2002 limited warranty specifically requires a second owner to
notify Atlas in writing within thirty days of the real estate transfer for any coverage
to be transferred.97 The third-owner class members are not even eligible to recover
under the 2002 limited warranty.98 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
96
Id. at *4.
97
See Def.’s Primary Resp. Brief, Ex. G.
98
Id.,
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discovery.99 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.
Atlas is also likely to employ affirmative defenses against many class members,
with the most likely defense being the statute of limitations. Virginia applies a fouryear statute of limitations for breach of warranty claims.100
A cause of action [for breach of warranty] accrues when the breach
occurs, regardless of the aggrieved party’s lack of knowledge of the
breach. A breach of warranty occurs when tender of delivery is made,
except that where a warranty explicitly extends to future performance of
the goods and discovery of the breach must await the time of such
performance the cause of action accrues when the breach is or should
have been discovered.101
“Virginia courts have found that a contract including a continuing duty to repair may
evidence an explicit warranty that anticipates future performance.”102 Thus, in order
99
Id., Exs. G-H.
100
Va. Code Ann. § 8.2-725(1).
101
Id. § 8.2-725(2).
102
In re Building Materials Corp. of Am. Asphalt Roofing Shingle Products
Liability Litigation, No.8:11-mn-02000-JMC, 2013 WL 1827740, at *4 (D.S.C. April
30, 2013) (citing Luddeke v. Amana Refrigeration, Inc., 387 S.E.2d 502, 506 (Va.
1990)).
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to determine when a class member’s breach of express warranty claim accrued, the
Court will need to determine “when the breach is or should of have been
discovered.”103 This inquiry will require individualized evidence. Furthermore, 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.104 Thus, it is likely
a large percentage of the class members’ warranty claims will be barred by the statute
of limitations.105 For the Plaintiff’s implied warranty claims, the four-year statute of
limitations “accrues when the breach occurs, ” which is “when the tender of delivery
is made.”106 As a result, it is likely a large number of the class members’ implied
warranty claims will also be barred.
103
Va. Code Ann. § 8.2-725(2).
104
See Mot. for Class Cert. Hearing [Doc. 366], at 102 under No. 1:13-md02495-TWT.
105
The Court notes that the issue of equitable tolling will also involve
individualized evidence. “When the filing of an action is obstructed by a defendant’s
[use of any] direct or indirect means to obstruct the filing of an action, then the time
that such obstruction has continued shall not be counted as any part of the period
within which the action must be brought.” Va. Code Ann. § 8.01-229(D). Each class
member, therefore, will need to demonstrate that he or she was hindered from
discovering the defect by an affirmative action by Atlas.
106
Id. § 8.2-725(2).
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The Plaintiff counters with the general rule that individual affirmative defenses
usually do not defeat predominance.107 Thus, it contends 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.”108 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.109
Specifically, the Eleventh Circuit noted that affirmative defenses that are coupled with
several other individual questions could defeat predominance.110 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 Plaintiff.
(ii) Fraudulent Concealment
107
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.”).
108
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.)).
109
Id. at 1241.
110
Id.
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In Count V of its Complaint, the Plaintiff asserts a fraud claim against the
Defendant. The Plaintiff argues that Atlas fraudulently concealed the alleged defect
and misrepresented to potential customers that the Shingles were durable and
conformed to applicable industry standards. In Virginia, “[a] plaintiff asserting a claim
of actual fraud must demonstrate (1) a false representation by the defendant, (2) of a
material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5)
reliance by the misled party, and (6) resulting injury to the party misled.”111 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 Plaintiff counters 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.”112 The Plaintiff then
goes one step further and states that the class members will be able to use
circumstantial evidence when demonstrating reliance. It points to Klay v. Humana,
Inc. in support of this contention. In Klay, a putative class action was brought by a
111
McCabe v. Daimler AG, 160 F. Supp. 3d 1337, 1355 (N.D. Ga. 2015)
(quoting Carlucci v. Han, 907 F. Supp. 2d, 709, 740 (E.D. Va. 2012)).
112
Klay v. Humana, Inc., 382 F.3d 1241, 1258 (11th Cir. 2004).
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group of doctors who submitted claims for reimbursement to HMOs but were
systematically underpaid.113 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.”114 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.”115 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
113
Id. at 1246-47.
114
Id. at 1259.
115
Id.
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based – go to the heart of these agreements, and that doctors based their
assent upon them.116
The Plaintiff contends 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 Plaintiff’s 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.”117
When presented with such cases, “the Eleventh Circuit has repeatedly found class
certification inappropriate.”118 In this case, there are both material variation in the
representations and kinds of degrees of reliance by the class members. For the alleged
misrepresentations, each class member would need to establish what particular
marketing material or industry standard he or she observed and relied upon. This is
further complicated by third party wholesalers, retailers, and contractors who made
116
Id.
117
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).
118
Id. (citing Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d
1330, 1344 (11th Cir. 2006)).
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the purchase decisions for the vast majority of the Shingle purchases. Indeed, there is
no evidence that Atlas engaged in a uniform marketing scheme. Thus, the class
members 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 Plaintiff’s fraudulent concealment claim.119
119
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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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.”120 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.121
Class certification “cannot be denied because the number of potential class members
makes the proceeding complex or difficult.”122 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.”123 Thus, the focus should be “on the
120
FED. R. CIV. P. 23(b)(3).
121
Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
122
In re Theragenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D. Ga. 2002).
123
Id. at 697-98 (quoting In re Domestic Air Transp. Antitrust Litigation,
137 F.R.D. 677, 693 (N.D. Ga. 1991)).
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relative advantages of a class action suit over whatever other forms of litigation might
be realistically available to the plaintiffs.”124
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 Plaintiff’s contention that the class members lack
any significant interest in controlling the litigation. The damages claimed by the
named Plaintiff is not insignificant. The Plaintiff’s own expert opined that replacing
a roof can be “several thousand dollars to tens of thousands of dollars.”125 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.126 The owners
124
Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir. 2004).
125
See Primary Mot. for Class Cert., Ex. Tab 21, at 47.
126
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.”).
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have the option of pursuing their claims in state court, where claims of several
thousands dollars are common.127 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 Plaintiff asks 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.”128 The Plaintiff
contends 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.”129 However, there is a split among courts over how
to apply the predominance test when asked to certify an issue class.130 Some courts
127
See Gonzalez v. Owens Corning, 317 F.R.D. 443, 524 (W.D. Pa. 2016).
128
See Pl.’s Primary Reply Br. [Doc. 61], at 25 under No. 1:13-cv-02195TWT. The Plaintiff incorporates by reference Section V of Plaintiffs’ Reply Brief in
Dishman v. Atlas Roofing Corp. See Pl.’s Reply Br., at 21.
129
FED. R. CIV. P. 23(c)(4).
130
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
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have certified issue classes despite a lack of overall predominance.131 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.”132 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.”133 The Court finds the
latter interpretation to be persuasive.134 As discussed above, even if the Plaintiff could
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).”).
131
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.”).
132
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).
133
Castano, 84 F.3d at 745 n.21.
134
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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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.”135 As a result, the Court concludes a Rule
23(c)(4) class should not be certified.
IV. Conclusion
For these reasons, the Court DENIES the Plaintiff Stratford Club Condominium
Association’s Motion for Class Certification [Doc. 38].
SO ORDERED, this 8 day of June, 2017.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
135
In re Conagra Peanut Butter Products Liability Litigation, 251 F.R.D.
689, 701 (N.D. Ga. 2008).
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