Snyder et al v. Tamko Building Products, Inc.
Filing
388
MEMORANDUM AND ORDER denying 300 Motion to Certify Class. Signed by District Judge Julie A. Robinson on 03/27/2024. (kmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARTIN MELNICK, BETH MELNICK, LIA
LOUTHAN, AND SUMMERFIELD
GARDENS CONDOMINIUM, on behalf of
themselves and all others similarly situated,
Case No. 19-CV-2630-JAR-BGS
Plaintiffs,
v.
TAMKO BUILDING PRODUCTS LLC,1
Defendant.
MEMORANDUM AND ORDER
Plaintiffs – a married couple, an individual, and a corporation – assert numerous claims
against Defendant TAMKO based on allegations that Defendant’s roofing shingles were
defective and failed prior to their expected or warrantied service life. Plaintiffs now seeks class
certification (Doc. 300). The motion is fully briefed.2 For the reasons stated in more detail
below, the Court denies Plaintiffs’ motion.
I.
Background
Defendant manufactures asphalt roofing shingles. Defendant markets its Heritage brand
shingles as a premium product. Two types of its Heritage shingles are branded the Heritage 30
and the Heritage 50. These shingles are manufactured at five different manufacturing plants in
the United States and distributed throughout the lower 48 states. The shingles have the same
basic design and components, but the plants use different product formulas and raw materials.
1
Defendant is listed on the docket sheet as Inc., but it refers to itself as an LLC, and thus the Court will
also refer to Defendant as an LLC.
Six other motions are also pending, including Defendant’s motion for summary judgment (Doc. 318) and
five motions to exclude testimony (Docs. 314, 322, 324, 326, and 330). The Court will address Defendant’s motion
for summary judgment in a separate Order. The motions to exclude will be addressed at a later date.
2
From 2004 through 2020, Defendant sold over 219 million squares of Heritage 30
shingles and nearly 5 million squares of Heritage 50 shingles.3 In 2004 alone, Defendant sold
enough Heritage shingles in Connecticut, Ohio, and Illinois to roof approximately 40,000 homes.
Plaintiffs assert that Defendant designed, manufactured, and represented to the
marketplace that Heritage shingles met industry standards. Plaintiffs specifically assert that
Heritage shingles do not meet “tear testing” standards set by the American Society for Testing
and Materials (“ASTM”), and therefore, the shingles are likely to fail before the end of the
warranty period that accompanies the product. They allege that Defendant has had issues
meeting the tear-strength standard since the standard was implemented in 1998 and continues to
do so.4
Heritage 30 and Heritage 50 shingles came with a 30-year and 50-year limited warranty,
respectively. Owners were required to notify Defendant of any claims under the warranty within
30 days following discovery of the problem. The warranty could be transferred one time during
the first two years. Some of the shingles included an AR designation, due to the addition of
algae-resistant granules, and those shingles also had a ten-year algae cleaning warranty.
Plaintiffs contend that Defendant’s naming of the shingles with the number 30 and 50,
and the marketing of the respective warranty period, led purchasers to believe that the shingles
would last for 30 and 50 years. In addition, they contend that Defendant’s warranty program was
obstructive. Furthermore, Plaintiffs assert that Defendant frequently denied warranty claims.
3
The Court notes that this timeframe is primarily outside the class period of 2000 through 2004, but there
is no sales data prior to 2004.
4
Plaintiffs cite to evidence of Defendant’s alleged issues meeting tear-strength standards, but the primary
evidence is after 2004.
2
Consumers of Heritage shingles have made nearly 50,000 warranty claims between 2001 and
early 2021.
The four named Plaintiffs in this suit seek to be class representatives. The first two are
Martin and Beth Melnick. After consulting with a roofer and viewing Defendant’s website, they
purchased TAMKO Heritage 50 AR shingles for their house in Connecticut in September 2002.
The shingles were manufactured in Defendant’s Maryland plant. Beginning in 2013, the
Melnicks began to have problems. The shingles had grown algae, cracked, and degranulated,
and water leaked into the home. In 2014, they initiated a warranty claim with Defendant that
was denied in 2015. In December 2015, the Melnicks filed suit against Defendant. The
Melnicks no longer own the home as they sold it in 2017.
The Melnicks seek to certify a class on the following claims: (1) a violation of the
Connecticut Product Liability Act (“CPLA”) (which includes six common law theories of breach
of express warranty; breach of implied warranty; strict liability, both design defect and failure to
warn; negligence; and negligent misrepresentation); (2) fraudulent nondisclosure/concealment;
and (3) unjust enrichment.
The next putative class representative, Ms. Louthan, purchased Heritage 30 shingles after
viewing Defendant’s brochure and sample shingles. Ms. Louthan purchased these shingles in
Ohio, in 2004, for a home that was in her mother’s name. The shingles were manufactured at
Defendant’s Maryland plant. The home was placed in her name in 2010. Ms. Louthan alleges
that she had two water leaks in 2009 and 2012. In 2015, Ms. Louthan’s husband tried to file a
warranty claim. The shingles had cracked, severely degranulated, curled, and come loose.
3
Ms. Louthan seeks to certify the following claims on behalf of a class: (1) breach of
express warranty; (2) strict liability, both design defect and failure to warn; (3) fraudulent
concealment; and (4) violation of the Ohio Consumer Sales Protection Act (“OCSPA”).
Summerfield Gardens, the third putative class representative, is a condominium complex
located in Illinois. It had 19 of its 20 duplexes constructed between the years of 2003 and 2007
with Heritage 30 Shingles.5 The shingles were manufactured at Defendant’s Texas plant.
Summerfield Gardens’ developer, Emmons & Wickenhauser, purchased all the shingles on those
buildings. The developer had already been using Heritage shingles in other projects before the
construction of Summerfield Gardens. Summerfield Gardens has not identified any specific
representations that the board or the developers relied upon when purchasing the shingles.
The Summerfield Gardens’ board filed a warranty claim in 2014 related to one of the
duplexes, and one of Defendant’s representatives told the board member that the shingles were
part of a “bad batch.” Defendant sent Summerfield Gardens replacement shingles for that
duplex. In 2015, Summerfield Gardens began to experience problems with more of its shingles.
The shingles had cracked, severely degranulated, curled, and come loose. Summerfield Gardens
replaced the shingles on all its buildings.
Summerfield Gardens seeks to certify a class on the following claims: (1) strict liability,
both design defect and failure to warn; (2) unjust enrichment; (3) fraudulent concealment; and
(4) negligent misrepresentation.6
The Court notes that the class period’s end date is November 30, 2004. Plaintiffs state that the duplexes
were constructed between 2003 and 2007 and that at least seven of the 19 buildings were purchased before
December 2004.
5
6
Plaintiffs assert 13 different substantive claims (under the laws of three different states) in their Amended
Complaint, stating that they assert these claims individually, and on behalf of a class. They do not, however, seek
class certification for all these claims in the motion pending before the Court. The Court will only address the
claims for which Plaintiffs seek certification.
4
II.
Class Certification Standard
Federal Rule of Civil Procedure 23 governs class actions in federal court.7 The Court
possesses “significant latitude in deciding whether or not to certify a class.”8 And whether a case
should be allowed to proceed as a class action is a fact-based question that is fraught with
practical considerations.9 Moreover, “Rule 23 does not set forth a mere pleading standard. A
party seeking class certification must affirmatively demonstrate his compliance with the Rule—
that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common
questions of fact, etc.”10 The Court must conduct a “rigorous analysis” to ensure that Plaintiffs’
putative class meets the requirements for certification.11
As the party seeking class certification, Plaintiffs must show “under a strict burden of
proof” that their putative class meets the requirements of Rule 23.12 Plaintiffs must first satisfy
all four prerequisites of Rule 23(a) by showing that (1) the class is so numerous that joinder of all
members is impracticable, (2) questions of law or fact are common to the class, (3) Plaintiffs’
claims or defenses are typical of the claims or defenses of the class, and (4) Plaintiffs will fairly
and adequately protect the interests of the class.13 These requirements are more commonly
known as numerosity, commonality, typicality, and adequacy of representation.14 If the
7
Fed. R. Civ. P. 23.
8
Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir. 2009) (citing Shook v. Bd. of Cnty. Comm’rs, 543
F.3d 597, 603 (10th Cir. 2008)).
9
See Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988) (citation omitted).
10
Sherman v. Trinity Teen Sols., Inc., 84 F.4th 1182, 1187 (10th Cir. 2023) (quoting Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011)).
11
Id. (citing Menocal v. GEO Grp., Inc., 882 F.3d 905, 913 (10th Cir. 2018)).
12
Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006) (quoting Reed, 849 F.2d at 1309).
13
Fed. R. Civ. P. 23(a).
14
Sherman, 84 F.4th at 1187.
5
requirements of Rule 23(a) are met, Plaintiffs must then show that their case fits within one of
the categories described in Rule 23(b).15
Plaintiffs seek to proceed under both Rule 23(b)(2) and (b)(3). Rule 23(b)(2) states that
“[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.”16 The Tenth Circuit interprets this requirement as demanding “a certain cohesiveness
among class members with respect to their injuries, the absence of which can preclude
certification.”17
A Rule 23(b)(3) class “requires ‘the court find[] that the questions of law or fact common
to class members predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.’”18 “These requirements are commonly referred to as predominance and
superiority, respectively.”19
The Court will first discuss Plaintiffs’ Rule 23(b)(3) class proposal. Then it will discuss
Plaintiff’s Rule 23(b)(2) class proposal. Finally, it will address Plaintiffs’ alternative argument
that the Court should certify a class with respect to common issues under Rule 23(c)(4).
15
See Fed. R. Civ. P. 23(b).
16
Fed. R. Civ. P. 23(b)(2).
17
Shook v. Bd. of Cnty. Comm’rs, 543 F.3d 597, 604 (10th Cir. 2008) (citations omitted).
18
Sherman, 84 F.4th at 1187 (quoting Fed. R. Civ. P. 23(b)(3)).
19
Id.
6
III.
Discussion
A.
Proposed Rule 23(b)(3) Class
Plaintiffs seek to certify the following class under Rule 23(b)(3):
All individuals and entities that purchased and had installed on
homes, residences, buildings or other structures physically located
in Connecticut, Ohio and Illinois TAMKO Heritage shingles; or
that own homes, residences, buildings or other structures
physically located in Connecticut, Ohio and Illinois, on which
TAMKO Heritage shingles are or were installed (the “Class”).
The Class period is limited to Heritage shingles that were
purchased between January 1, 2000 and November 30, 2004 (the
“Class Period”). Excluded from the Class are (i) TAMKO and its
affiliates, subsidiaries, employees, and current and former officers,
directors, agents, and representatives; and (ii) members of this
Court and its staff.20
The Court notes that it has concerns with Plaintiffs’ class definition. Plaintiffs seek to
certify a class that includes individuals and entities, who purchased and installed Defendant’s
shingles on structures in three different states. The class also includes individuals or entities who
did not purchase or install the shingles but who now own the structures on which the shingles
were installed. In addition, these shingles must have been purchased/installed between 2000 and
2004. Plaintiffs’ class definition is unwieldy and amorphous, and it is unclear how Plaintiffs
would identify proposed class members.21
20
Doc. 301 at 12.
21
Defendant argues that Plaintiffs’ proposed class definition is not ascertainable because there is no
administratively feasible way to identify the class members. Ascertainability is not an enumerated class certification
requirement, and the Tenth Circuit has only addressed the question peripherally. See In re EpiPen (Epinephrine
Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-md-2785-DDC-TJJ, 2020 WL 1873989, at *9 (D.
Kan. Feb. 27, 2020) (noting that it was “unsettled whether ascertainability [was] a separate and distinct requirement
for class certification under Rule 23(b)(3)” but determining that if the Tenth Circuit addressed the question, the
Circuit would apply a less restrictive ascertainability test); but see Martinez v. FedEx Ground Package Sys., Inc.,
No. 20-1052 SCY/LF, 2023 WL 7114678, at *10 (D.N.M. Oct. 27, 2023) (noting that the Tenth Circuit, in
unpublished opinions, affirmed the use of the stricter administrative feasibility test for determining whether a class
was ascertainable) (citations omitted). Because Plaintiffs’ class definition is so amorphous and unwieldy, to the
extent that ascertainability is an issue, Plaintiffs fail to meet this requirement. See Gonazalez v. Owens Corning, 317
F.R.D. 443, 506–07 (W.D. Pa. 2016) (finding that the class was not ascertainable because it was not administratively
feasible based on numerous reasons, including “that ownership of the structure will [likely] have changed, making
7
In addition, Plaintiffs state in a footnote that the Court can refine the class definition,
and they state that they seek certification of state- and cause-of-action-specific claims.22 Yet,
other than their footnote, they do not include any further substantive discussion on these points
and do not set forth any definitions for their proposed sub-classes or cause-of-action sub-classes
in their briefing. Instead, they simply set forth the different state law applicable to their various
causes of action. The Court recognizes that it could refine the class definition.23 However, given
the substantial number of claims and numerous complexities of the case, the Court will not do
the work for Plaintiffs. It is Plaintiffs’ burden to demonstrate the appropriateness of class
certification.24 And “[t]he plaintiff is the master of his own class definition.”25 Accordingly, the
Court will not propose class definitions other than the one Plaintiffs proposed that encompasses
three states.
The Court will now consider whether Plaintiffs meet each requirement for certification.
documentation for roofing projects completed prior to transfer less likely to be available”); In re Atlas Roofing Corp.
Chalet Shingle Prods. Liab. Litig., No. 1:14-cv-3034-TWT, 2017 WL 2536794 at *4 (N.D. Ga. June 9, 2017)
(finding that the plaintiffs could not identify an administratively feasible mechanism for identifying class members
when the class definition encompassed homes or structures in Kentucky that had a particular type of shingles
installed).
22
See Doc. 301 at 12, n.1.
23
See In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., No. 17-2785DDC-TJJ, 2020 WL 1180550, at *9 (D. Kan. Mar. 10, 2020) (collecting cases).
24
See In re Motor Fuel Temperature Sales Pracs Litig., 292 F.R.D. 652, 661 (D. Kan. 2013).
25
Evans v. Brigham Young Univ., No. 22-4050, 2023 WL 3262012, at *6 (10th Cir. 2023) (citation
omitted).
8
1. Rule 23(a) Requirements
a. Numerosity
Numerosity requires Plaintiffs to demonstrate that “the class is so numerous that joinder
of all members is impracticable.”26 Here, Plaintiffs assert that Defendant sold enough Heritage
shingles in Connecticut, Ohio, and Illinois in 2004 alone to roof approximately 40,000 homes.
Based on this figure, the Court finds that Plaintiffs satisfy the numerosity requirement.27
b. Commonality
Commonality requires that “there are questions of law or fact common to the class.”28 “It
is not enough for Plaintiffs to demonstrate common questions apply to the class, rather they must
show ‘the capacity of a class-wide proceeding to generate common answers apt to drive the
resolution of the litigation.’”29 “A finding of commonality requires only a single question of law
or fact common to the entire class.”30
Plaintiffs state that there are numerous common questions, including whether the shingles
were defective because they were prone to cracking, tearing, excessive degranulation, curling,
and/or other deterioration.31 Plaintiffs identify at least one common question, and thus the Court
finds that Plaintiffs satisfy commonality.32
26
Fed. R. Civ. P. 23(a)(1).
27
Defendant does not contest the numerosity requirement.
28
Fed. R. Civ. P. 23(a)(2).
29
Sherman v. Trinity Teen Sols., Inc., 84 F.4th 1182, 1192 (10th Cir. 2023) (quoting Wal-Mart Stores Inc.
v. Dukes, 564 U.S. 338, 350 (2011)).
30
Id. (quoting Menocal v. GEO Grp., Inc., 882 F.3d 905, 914 (10th Cir. 2018)).
31
Plaintiffs identify 18 questions in their briefing, but the Court will not set them all forth here. See Doc.
301 at 26.
32
Defendant also does not contest the commonality requirement.
9
c. Typicality
Typicality “requires that ‘the claims or defenses of the representative parties are typical of
the claims or defenses of the class.’”33 Typicality does not require that every class member share
an identical factual situation to the named plaintiff.34 “Typicality requires only that the claims of
the class representative and class members are based on the same legal or remedial theory.”35
The Third Circuit has noted that “[a] proposed class representative is not ‘typical’ under Rule
23(a)(3) if the representative is subject to a unique defense that is likely to become a major focus
of the litigation.36 In addition, this Court has explained:
There is a danger that absent class members will suffer if their
representative is preoccupied with defenses unique to it. The
presence of actual unique defenses destroy[s] the representatives’
typicality because the representatives’ defenses are no longer
typical of the class. Also, unique defenses can make a
representative inadequate because they are likely to usurp a
significant portion of the litigant’s time and energy. If the
defendants are successful in raising a unique defense, the entire
class is bound by a defense which is ordinarily only applicable to
the representative individually.37
Here, Defendant contends that Plaintiffs cannot meet the typicality requirement because
the named Plaintiffs’ claims are subject to unique defenses. The Court agrees. For example, the
Melnicks seek to represent a class, but they did not disclose during the sale of their house that
there were any issues with the shingles or that they were allegedly defective. This failure to
33
Sherman, 84 F.4th at 1193 (quoting Fed. R. Civ. P. 23(a)(3)).
34
Id. (citing Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1216 (10th Cir.
35
Id. (quoting Menocal, 882 F.3d at 924).
2014)).
36
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 599 (3d Cir. 2012) (quoting In re Schering Plough Corp.
ERISA Litig., 589 F.3d 585, 598 (3d Cir. 2009)).
37
Doll v. Chic. Title Ins. Co., 246 F.R.D. 683, 687 (D. Kan. 2007) (quotation omitted).
10
disclose could impact their claim as to the defectiveness of the shingles. Thus, this unique
defense would be a focus in the litigation that could be a danger to the absent class members.
In addition, Ms. Louthan is also subject to the unique defense that the home for which she
purchased shingles was not titled in her name, and Defendant contends that the express warranty
would not cover her claim. This unique defense would also be a focus in the litigation and could
possibly foreclose Ms. Louthan’s claim and affect absent class members.
Because resolution of these defenses to the individual Plaintiffs’ claims could become a
focus in the case, the Court finds that typicality is not met.38
d. Adequacy
Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the
interests of the class.” An adequate class representative “must be part of the class and possess
the same interest and suffer the same injury as the class members.”39 “The adequacy inquiry
under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class
they seek to represent.”40 The adequacy factor also “factors in competency and conflicts of class
counsel.”41 “To defeat class certification, a conflict must be fundamental and go to specific
issues in controversy.”42 Class certification will not be defeated by minor conflicts.43
The Court first finds that proposed class counsel is competent, and there are no conflicts.
Counsel has extensive class-action experience and is fully qualified to represent the proposed
To the extent that Plaintiffs’ claims could be considered typical, the Court will address the numerous
individualized inquiries in the predominance section below.
38
39
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (quotations and citations omitted).
40
Id. at 625.
41
Id. at 626 n.20 (citations omitted).
42
Eatinger v. BP Am. Prod. Co., 271 F.R.D. 253, 260 (D. Kan. 2010) (citation omitted).
43
Id. (citation omitted).
11
class. Class counsel has vigorously represented the named Plaintiffs in this case for the past nine
years,44 and the Court has no doubt that counsel would continue to do so. Thus, class counsel
meets the adequacy requirement.
The class representatives, however, are not adequate representatives. As will be discussed
below, Plaintiffs assert numerous claims. Defendant points out that Plaintiffs’ claims are subject
to unique defenses, and Plaintiffs have conflicts with a large portion of absent class members.
The Court will note some of the potential conflicts below.
As to the Melnicks, they do not currently own the home with the shingles, and they did not
disclose to the current owner any issues with the shingles or that they had filed a lawsuit alleging
that the shingles were defective when they sold the house. Yet, the class definition includes the
new owner of the home as a member of the class too. Plaintiffs gloss over these “quibbles” and
claim that they are “just a distraction.”45 Yet, two different class members would be seeking
relief for the same shingles. Plaintiffs contend that it would simply be a damages allocation
issue and would not create a conflict that would preclude certification. However, a fundamental
conflict could exist between the current homeowner and the Melnicks should the current
homeowner be precluded from recovery due to the Melnicks’ failure to acknowledge or disclose
the alleged defect in the shingles.
As to Summerfield Gardens, it seeks to represent a class that will assert fraudulent
misrepresentation and negligent misrepresentation claims. Yet, Summerfield Gardens’ claims
44
The case has been in the District of Kansas since 2019, and it was previously in the Eastern District of
California for four years.
45
Doc. 361 at 22.
12
are highly individualized, and it offers only a single oral misrepresentation to prove reliance.46
Presumably, no other putative class member would have been exposed to the same
representation. Thus, Summerfield Gardens would not be an adequate class representative for
these claims.
Finally, Ms. Louthan is also subject to the defense that the home for which she purchased
shingles was not titled in her name, and Defendant contends that its express warranty would not
cover her claim. If Ms. Louthan cannot invoke the warranty, she would not be able to adequately
represent putative class members with a claim for breach of express warranty. Accordingly, she
would not be an adequate representative.47
In sum, the Court finds that Plaintiffs meets the Rule 23(a) requirements for numerosity
and commonality. Plaintiffs, however, do not meet the Rule 23(a) requirements for typicality
and adequacy. Accordingly, they cannot satisfy the Rule 23(a) standard. Nevertheless, the Court
will go on to address the Rule 23(b) requirements as well.
2. Rule 23(b)(3) Requirements
a. Predominance
The predominance requirement “tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.”48 Predominance requires a plaintiff to demonstrate
that “common questions subject to generalized, class[-]wide proof predominate over individual
46
Summerfield Gardens does not identify any specific representations that the board or the developers
relied upon when purchasing the shingles. The only specific misrepresentation that is at issue is that Summerfield
Gardens received a bad batch of shingles. This contention is intensely fact-specific.
47
To the extent that Plaintiffs could be considered adequate class representatives for particular claims, the
Court will address the many individualized issues with the claims below.
48
Amchem Prods., 521 U.S. at 623 (citation omitted).
13
questions.’”49 To determine predominance, “[c]ourts conduct a two-step analysis.”50 The first
step requires the court to characterize the issue as common or individual.51
An individual question is one where members of a proposed class
will need to present evidence that varies from member to member,
while a common question is one where the same evidence will
suffice for each member to make a prima facie showing or the
issue is susceptible to generalized, class-wide proof.52
When determining which issues are common or individual, “the court must first ‘consider the
class’s underlying cause[s] of action and determine which elements are amenable to common
proof.’”53 “The court should ‘characterize the issues in the case as common or not, and then
weigh which issues predominate.’”54 This inquiry often requires the Court to consider the merits
of the class members’ claims but only to the extent that they are relevant.55
i. Similar Cases
The Court will discuss throughout this order three similar cases seeking class certification
against shingle manufacturers from three different courts.56 Although the Court will specifically
discuss these cases in the context of analyzing whether Plaintiffs can meet the predominance
standard for each of their claims, the Court finds it helpful to set forth a broad overview of each
49
Brayman v. KeyPoint Gov’t Sols., Inc., 83 F.4th 823, 838 (10th Cir. 2023) (quoting Naylor Farms, Inc. v.
Chaparral Energy, LLC, 923 F.3d 779, 789 (10th Cir. 2019)).
50
Id.
51
Id.
52
Id. (quoting Tyson Foods, Inc., v. Bouaphakeo, 577 U.S. 442, 453 (2016)).
53
Sherman v. Trinity Teen Sols., Inc., 84 F.4th 1182, 1194–95 (10th Cir. 2023) (quoting Menocal v.GEO
Grp., Inc., 882 F.3d 905, 915 (10th Cir. 2018)).
54
Id. at 1195 (quoting CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014)).
55
Id. (quoting CGC Holding Co., 773 F.3d at 1087).
56
Hummel v. Tamko Bldg. Prods., Inc., 303 F. Supp. 3d 1288 (M.D. Fla. 2017); Gonzalez v. Owens
Corning, 317 F.R.D. 443 (W.D. Pa. 2016), aff’d by Gonzalez v. Owens Corning, 885 F.3d 186 (3d Cir. 2018); In re
Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., No. 1:13-md-2495-TWT, 2017 WL 2536794 (N.D. Ga. June
9, 2017).
14
of the cases here. In each case, the court determined that class certification was inappropriate.
In Hummel v. Tamko Building Products, Inc., the plaintiff brought multiple claims under
Florida law against the same defendant in this case.57 These claims included breach of express
warranty, strict liability, negligence theories, and violation of the Florida Deceptive and Unfair
Practices Act.58 The Middle District of Florida denied the plaintiff’s request for class
certification finding that the facts of the case would require an individualized inquiry with each
claim, and thus the plaintiff could not meet the predominance requirement.59
In Gonzalez v. Owens Corning,60 three separate putative class actions (from Illinois,
Texas, and California) were consolidated with a putative class action in the Western District of
Pennsylvania.61 Each case arose from the defendants’ “manufacture and sale of allegedly
defective [] fiberglass asphalt roofing shingles.”62 The plaintiffs sought certification on claims
for breach of express warranty, breach of implied warranty of merchantability, unjust
enrichment, and violation of state consumer protection statutes.63 The Western District of
Pennsylvania concluded that individualized issues predominated over common issues making
class certification inappropriate under Rule 23(b)(3).64 In addition, the court determined that
class treatment was not a superior method to other forms of adjudication.65 Finally, the court
57
Hummel, 303 F. Supp. 3d at 1294.
58
Id.
59
Id. at 1297–1300.
60
317 F.R.D. 443 (W.D. Pa. 2016).
61
Id. at 450.
62
Id.
63
Id. at 511. Plaintiffs also brought claims for strict products liability, fraudulent
concealment/misrepresentation, negligence, and negligent misrepresentation. Id. at 456, 459, 461, 463 (setting forth
a graph of each plaintiff’s claims).
64
Id. at 511–24.
65
Id. at 524–25.
15
found that a Rule 23(b)(2) declaratory class and a Rule 23(c)(4) issue class were not warranted.66
The Northern District of Georgia, in In re Atlas Roofing Corporation Chalet Shingles
Products Liability Litigation, addressed a multi-district class action “arising out of the marketing
and sale of allegedly defective roofing shingles.”67 In that case, the defendant represented that it
complied with industry standards and building codes, but the plaintiff alleged that the shingles
were defective due to a flaw in the manufacturing process.68 The plaintiff sought class
certification for the following claims: negligence, negligent misrepresentation, strict products
liability, breach of express warranty, breach of implied warranties, fraudulent misrepresentation,
fraudulent concealment, and violation of Kentucky’s Consumer Protection Act.69 The court first
found that the plaintiff failed to “demonstrate an administratively feasible mechanism for
identifying class members.”70 The court went on to determine that the plaintiff could not meet
the predominance requirement because individual issues predominated over common issues for
each claim.71 The court also found that a class action was not a superior method to adjudicate
the claims.72 Finally, the court concluded that an issue class under Rule 23(c)(4) or a declaratory
class under Rule 23(b)(2) was inappropriate.73
Id. at 526–29. The Third Circuit affirmed the district court’s finding that the plaintiffs could not meet the
predominance requirement. Gonzalez v. Owens Corning, 885 F.3d 186, 195–202 (3d Cir. 2018). In addition, the
court found that the district court did not abuse its discretion in denying the plaintiffs’ request for issue certification
under Rule 23(c)(4). Id. at 202–03.
66
67
In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., No. 1:13-md-2495-TWT, 2017 WL
2536794, at *1 (N.D. Ga. June 9, 2017).
68
Id.
69
Id. at *2.
70
Id. at *4.
71
Id. at *7–12.
72
Id. at *12–13.
73
Id. at *13–15.
16
ii. Claims in this Case
Pursuant to Tenth Circuit case law, the Court must consider Plaintiffs’ causes of action to
determine whether common issues predominate over individualized issues.74 Plaintiffs assert
numerous claims under the law of three different states. Under Connecticut law, the Court
considers the following claims: (1) CPLA (with numerous theories including (a) breach of
express warranty, (b) breach of implied warranty, (c) strict liability – both design defect and
failure to warn, (d) negligence, and (e) negligent misrepresentation); (2) unjust enrichment; and
(3) fraudulent concealment/nondisclosure. The Court must consider Ohio law for the following
claims: (1) breach of express warranty, (2) strict liability – both design defect and failure to
warn, (3) fraudulent disclosure, and (4) violation of the OCSPA. And under Illinois law, the
Court must consider claims for (1) strict liability – both design defect and failure to warn, (2)
unjust enrichment, (3) fraudulent disclosure, and (4) negligent misrepresentation.
Plaintiffs grouped the similar claims together, and thus the Court will do the same. The
Court first notes, however, that it must address an aspect of Connecticut law. In Connecticut,
“[t]he CPLA is the ‘exclusive remedy’ for—and the only cause of action available to—plaintiffs
in Connecticut for product liability claims.”75 “Even though the CPLA provides for only a single
cause of action, a plaintiff may assert various common law theories of liability thereunder.”76
The various theories, or sub-claims, “must sufficiently allege all elements that would be required
at common law.”77 The available theories of liability include: (1) strict liability in tort, (2)
74
Sherman v. Trinity Teen Sols., Inc., 84 F.4th 1182, 1194–95 (10th Cir. 2023) (quoting Menocal v.GEO
Grp., Inc., 882 F.3d 905, 915 (10th Cir. 2018)).
75
Hunte v. Abbott Lab’ies, Inc., 556 F. Supp. 3d 70, 82 (D. Conn. 2021).
76
Id. (quoting Phila. Indem. Ins. Co. v. Lennox Indus., Inc., No. 3:18-CV-0217, 2019 WL 1258918, at *2
(D. Conn. Mar. 18, 2019)).
77
Id. (quoting Phila. Indem. Ins. Co., 2019 WL 1258918, at *2).
17
negligence, (3) breach of warranty, express or implied, (4) breach of or failure to discharge a
duty to warn or instruct, whether negligent or innocent, and (5) misrepresentation or
nondisclosure, whether negligent or innocent.”78 Thus, all these theories fall under the CPLA,
and to determine whether the CPLA claim may go forward as a claim, the Court must conduct
inquiries as to the underlying theories. It will do so below.
a. Strict Liability Claims
Plaintiffs assert strict liability claims for design defect and failure to warn under the laws
of Connecticut,79 Ohio, and Illinois. In Connecticut, all product liability claims “are governed by
the same elements.”80 Specifically, a strict liability product design defect claim requires the
plaintiff to establish:
(1) the defendant was engaged in the business of selling the
product; (2) the product was in a defective condition unreasonably
dangerous to the consumer or user; (3) the defect caused the injury
for which compensation was sought; (4) the defect existed at the
time of the sale; and (5) the product was expected to and did reach
the consumer without substantial change in condition.81
A strict liability failure to warn claim includes the same five product defect elements.82 The
plaintiff must additionally show “that product instructions or warnings ‘were required, and if so,
whether they were adequate’ . . . [and] that ‘if adequate warnings or instructions had been
provided, the claimant would not have suffered the harm.’”83
78
Id. (citing Conn. Gen. Stat. § 52-572m(b)).
79
This theory falls under the CPLA claim.
80
Bifolck v. Philip Morris, Inc., 152 A.3d 1183, 1202 (Conn. 2016).
81
Id. (quotation and citations omitted).
82
Ferry v. Mead Johnson & Co., LLC, 514 F. Supp. 3d 418, 432 (D. Conn. 2021) (citing Karavitis v.
Makita U.S.A., Inc., 243 F. Supp. 3d 235, 252 (D. Conn. 2017)).
83
Id. (quoting Karavitis, 243 F. Supp. 3d at 252–53); see also Leonard v. Gen. Motors L.L.C., 504 F. Supp.
3d 73, 97 (D. Conn. 2020).
18
In Ohio, to prevail on a strict liability design defect claim, “the plaintiffs must prove that
(1) a defect existed in the product manufactured and sold by the defendant; (2) the defect existed
at the time the product left the defendant’s hands; and (3) the defect directly and proximately
caused the plaintiff’s injury or loss.”84 For a failure to warn claim, a plaintiff must demonstrate
“(1) the manufacturer had a duty to warn; (2) the duty was breached; and (3) the plaintiff’s injury
proximately resulted from the breach of duty.”85
In Illinois, a strict liability design defect claim requires the plaintiff to prove: “(1) a
condition of the product that results from manufacturing or design; (2) the condition made the
product unreasonably dangerous; (3) the condition existed at the time the product left the
defendant’s control; (4) the plaintiff suffered an injury; and (5) the injury was proximately
caused by the condition.”86 In addition, a strict liability failure to warn claim requires that the
plaintiff
prove that the manufacturer did not disclose an unreasonably
dangerous condition or instruct on the proper use of the product as
to which the average consumer would not be aware. The duty to
warn arises where the product possesses dangerous tendencies, the
manufacturer knows of the non-obvious risks of harm, and knows
or should know that harm may occur without instruction or a
warning.87
Plaintiffs contend that the central elements of their design defect claims may be proven
by common evidence because there is a common question of whether a defect existed when the
shingles left their respective factories, and whether this defect caused Plaintiffs’ damages. In
84
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 853 (6th Cir. 2013)
(citations omitted).
85
Id. (citation omitted); see also McConnell v. Cosco, Inc., 238 F. Supp. 2d 970, 976 (S.D. Ohio 2003)
(finding that the same standard applies to “both strict liability and negligence claims for inadequate warning”).
86
Salerno v. Innovative Surveillance Tech., Inc., 932 N.E.2d 101, 109 (Ill. App. Ct. 2010).
87
Norabuena v. Medtronic, Inc., 86 N.E.3d 1198, 1207 (Ill. App. Ct. 2017) (citation omitted).
19
addition, they assert that their failure to warn claims survive predominance because Defendant
knew of the danger and failed to warn about it. Defendant argues that Plaintiffs cannot prove a
product defect based on common evidence because whether the shingles are defective is an
inherently individualized inquiry. Defendant also asserts that there are individualized questions
as to the causation of Plaintiffs’ damages which preclude a finding of predominance for both the
design defect claim and the failure to warn claim.
Here, Plaintiffs’ defect theory is that Defendant’s shingles were not designed to meet
ASTM D3462’s tear-strength requirements and thus were likely to fail prior to the expiration of
the warranty period. Plaintiffs’ request for certification involves several different varieties of
shingles manufactured over the span of four years at five different plants.88 As to whether there
is common evidence to the shingles’ defectiveness, several other courts have addressed a similar
situation.
In Hummel v. Tamko Building Products, Inc.,89 the Middle District of Florida considered
whether to certify a class in Florida against the same defendant in this case for allegedly
defective shingles. In that case, the plaintiff alleged that Defendant’s heritage shingles
manufactured after 2004 suffered from a design defect that caused the shingles to fail “after a
fraction of their warrantied life.”90 With regard to the plaintiff’s strict liability claim, the court
found that “[d]etermining whether the [s]hingles suffered from a defect will require
individualized evidence of which factory the specific [s]hingles were manufactured, what
processes were used in manufacturing the [s]hingles, and what equipment and materials were
88
Plaintiffs’ class definition includes all types of TAMKO Heritage shingles. However, the named
Plaintiffs’ claims only involve two different types of shingles – Heritage 30 and Heritage 50.
89
303 F. Supp. 3d 1288 (M.D. Fla. 2017).
90
Id. at 1294.
20
used.”91 The court concluded that “[s]uch individualized inquiries are inherently unsuitable for
class-wide resolution.”92
In Gonzalez v. Owens Corning,93 the Western District of Pennsylvania considered
whether to certify a four-state class based on allegations of defective roof shingles and
misrepresentations on the shingles’ expected life. Although the plaintiffs in that case did not
seek certification of their strict liability claim, the court found that “each and every legal cause of
action that plaintiffs have elected to pursue on behalf of the proposed four-state class requires
proof that [the] shingles were defectively designed.”94 The court found that the different design
specifications, different manufacturing plants, and different raw materials precluded a finding of
commonality, and it would be “impossible for plaintiffs to meet their burden to prove a design
defect by evidence common to the class.”95 Accordingly, the court determined that the plaintiffs
failed to meet the predominance standard under Rule 23(b)(3).96
Here, similarly, Defendant’s shingles were produced at five different plants, with
different product formulas and raw materials, over the four-year proposed class period. Plaintiffs
attempt to distinguish Hummel by asserting that they can prove a common defect regardless of
where the shingles were manufactured because the shingles have the same basic design and
components.97 Plaintiffs also contend that they do not assert that every shingle is identical but
91
Id. at 1299.
92
Id.
93
317 F.R.D. 443 (W.D. Pa. 2016).
94
Id. at 511 (citations omitted).
95
Id. at 512.
96
Id.
97
Plaintiffs do not address the Western District of Pennsylvania’s decision in Gonzalez or the Third
Circuit’s opinion, Gonzalez v. Owens Corning, 885 F.3d 186 (3d Cir. 2018), affirming the district court’s decision.
In the district court, the plaintiffs also proceeded with a similar theory by alleging that Defendant “engaged in a
single course of wrongdoing by manufacturing [] shingles in accordance with design specification that were
defective because they made all [] shingles susceptible and vulnerable to having a useful life of no more than 20
21
instead that the shingles are defective because they were not designed to meet industry standards,
i.e, ASTM D3462. Yet, the plaintiff in Hummel asserted the same theory that Defendant
“warranted that its [s]hingles were compliant with applicable industry standards” and “all
suffered from common design defects that caused the shingles to fail after a fraction of their
warranties life, causing property damage.”98 And the Hummel court found that the plaintiff was
unable to demonstrate common questions because the inquiry into the different factories,
manufacturing processes, and equipment involved “individualized inquiries.”99 Thus, the Court
finds that Plaintiffs’ theory is not distinguishable from the theory asserted in Hummel.100 The
Court is persuaded by the reasoning of the Middle District of Florida, and finds that the
individualized inquiries into production of the shingles preclude a finding that the common
questions are susceptible to class-wide proof.
In addition, the evidence that Plaintiffs rely upon is problematic. The Court is cognizant
that “[f]or the purposes of class certification, [the] primary function is to ensure that the
requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative
class’s claims.”101 Yet, the Court must conduct a rigorous analysis, and “[s]tated another way,
consideration of how the class intends to answer factual and legal questions to prove its claim—
and the extent to which the evidence needed to do so is common or individual—will frequently
years, even though [the defendant] promised that the shingles would have a useful life of 25 years, or more.”).
Gonzalez, 317 F.R.D. at 511.
98
Hummel v. Tamko Bldg. Prods. Inc., 303 F. Supp. 3d 1288, 1294 (M.D. Fla. 2017).
99
Id. at 1299.
100
Plaintiffs also asserts that the law in Florida is materially different than the applicable law in Illinois,
Ohio, and Connecticut. There may be variations in the law between the four states. However, as to the strict
liability claim, the law is similar. In Florida, a strict liability claim requires proof that “(1) a product (2) produced
by a manufacturer (3) was defective or created an unreasonable dangerous condition (4) that proximately caused (5)
injury.” Id. at 1299 (quoting Edward Chadbourne, Inc. v. Vaughn, 491 So. 2d 551, 553 (Fla. 1986)).
101
CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014) (citations omitted).
22
entail some discussion of the claim itself.”102
Plaintiffs cite to evidence that Defendant had issues meeting the tear strength test,
however, Plaintiffs’ evidence is primarily from after the class period—2007 and on. Plaintiffs’
proposed class period is limited to shingles manufactured between 2000 and 2004, and thus,
Plaintiffs must have evidence from this timeframe to demonstrate a common design defect or to
show that shingles manufactured between 2000 and 2004 failed to meet the tear strength
requirement. Plaintiffs asserts that that they can rely on the later evidence by stating that
Defendant did not fundamentally change the design or manufacturing process after 2004 but
instead added an arbitration provision and class action waiver at that time. However, Plaintiffs
fail to address the lack of evidence during the relevant class period. Thus, there are significant
issues with Plaintiffs’ ability to demonstrate a product defect through common evidence on this
claim, as it relates to the proposed class period in this case.
Finally, Plaintiffs assert that even if Defendant’s five factories used completely different
materials and processes such that each factory produced a materially different product, it would
not create an insurmountable issue that defeats predominance because investigating the makeup
of shingles from five different factories is not an extensive or unmanageable inquiry. The Court
disagrees. Plaintiffs assert a strict liability design defect claim and a failure to warn claim based
on a product defect. An initial inquiry to determine whether the products were materially
different based on where they were manufactured would be an individualized question. And
then to determine whether those products suffered from a defect is another individualized
question. Individualized questions “are inherently unsuitable for class-wide resolution.”103
102
Id. (citation omitted).
103
Hummel, 303 F. Supp. 3d at 1299.
23
Furthermore, there are individualized causation issues in Plaintiffs’ strict liability claims.
The Northern District of Georgia addressed the same issue in In re Atlas Roofing, noting that
“even if the Plaintiff could prove a uniform defect,” there are many reasons why a roof may fail,
“including commonplace events and ordinary wear and tear. There are also numerous reasons a
shingle may blister, crack, or suffer granule loss.”104 The court found that “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.”105
The court concluded that “the [p]laintiff’s strict products liability claim will be predominated by
individualized causation questions. The individual class members will need to prove that the
alleged damage, whether to the [s]hingles or other property, was caused by the alleged defective
condition.”106
Just as in Atlas Roofing, there are numerous reasons why putative class members’
shingles may have failed. As to the four named Plaintiffs in the case, they disagree as to whether
improper installation, improper flashing, “dead valleys,” or ice damming could be the cause of
the problems. The potential for so many distinct causation issues on each structure is highly
individualized as to each potential class member. Thus, the Court finds that individual issues
relating to causation predominate over common issues in Plaintiffs’ strict liability claims.
Accordingly, Plaintiffs cannot meet the predominance requirement for their strict liability claims.
104
In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., No. 1:13-md-2495-TWT, 2017 WL
2536794, at *7 (N.D. Ga. June 9, 2017).
105
Id. at *7; see also id. at *7–9, 12 (discussing issues with causation in the context of breach of express
and implied warranty claims, but also discussing the same causation issue in a strict products liability claim).
106
Id. at *12 (citation omitted)
24
b. Breach of Express Warranty
Plaintiffs bring a breach of express warranty claim under both Connecticut and Ohio
law.107 In Connecticut, “[t]o recover for breach of an express warranty, a plaintiff must show (1)
that a warranty existed, (2) a breach of that warranty, and (3) damages proximately caused by the
breach.”108 A plaintiff must “adequately allege the representation that the defendant made and
breached and to whom it was conveyed and how.”109 “While advertisements can be part of the
basis of the bargain [that forms an express warranty], the plaintiff must show, at a minimum that
he or his agent knew of and relied on the statement.”110 In addition, pursuant to Conn. Gen. Stat.
Ann. § 42a-2-607(3)(a), “the 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.”
In Ohio, a claim for breach of express warranty requires that “(1) a warranty existed; (2)
the product failed to perform as warranted; (3) plaintiff provided defendant with reasonable
notice of the defect; and (4) plaintiff suffered injury as a result of the defect.”111 “Generally, as
part of a breach of warranty claim, Ohio Rev. Code § 1302.65(C)(1) requires the buyer to ‘notify
the seller of breach’ ‘within a reasonable time after [she] discovers or should have discovered
any breach.’”112 Pre-suit notice, however, is not “an absolute rule,” and notice may be inferred
Plaintiffs’ breach of express warranty claim under Connecticut law falls under the CPLA. And “[a]ll
product liability claims brought in Connecticut” require demonstrating that the “the product was in a defective
condition.” Hunte v. Abbott Lab’ies, Inc., 556 F. Supp. 3d 70, 82 (D. Conn. 2021) (quoting Bifolck v. Philip Morris,
152 A.3d 1183, 1202 (Conn. 2016)). Thus, Plaintiffs’ claim here also necessarily requires the common resolution of
whether the product was defective.
107
108
Hunte, 556 F. Supp. 3d at 88 (citation omitted).
109
Id. at 89 (citations omitted).
110
Omega Eng’g, Inc. v. Eastman Kodak Co., 30 F. Supp. 2d 226, 246 (D. Conn. 1998) (citation omitted).
111
Forsher v. J.M. Smucker, Co., 612 F. Supp. 3d 714, 725 (N.D. Ohio 2020) (quoting St. Clair v. Kroger
Co., 581 F. Supp. 2d 896, 902 (N.D. Ohio 2008)).
112
Johnson v. Eisai, Inc., 590 F. Supp. 3d 1053, 1062 (N.D. Ohio 2022) (quoting Ohio Rev. Code
§ 1302.65(C)(1)).
25
depending on the circumstances of a particular case.113 Those circumstances are generally a
factual inquiry.114
Here, Plaintiffs contend that the central elements of their express warranty claims may be
proven by common evidence because they involve the same defective product, the same
warranties, and Defendant’s breach of those warranties. Defendant asserts that individualized
inquiries preclude certification. Specifically, Defendant contends that the individualized
inquiries into notice and whether the breach caused Plaintiffs’ injuries predominate over any
common questions. The Court agrees.
As the Hummel court noted with the breach of express warranty claim asserted in that
case:
The determination of whether or not a seller of goods has received
adequate notice of an alleged defect is a highly individualized
inquiry. Thus, in order to succeed on their claims of breach of
express warranty, each member of the class would have to show
that he or she provided [Defendant] adequate notice of the alleged
defects in the [s]hingles within a reasonable time. The
determination of what constitutes a reasonable amount of time is
also a highly individualized inquiry.”115
The Hummel court concluded that the plaintiff’s breach of express warranty claim was not
amenable to class certification.116 In addition, the court in In re Atlas Roofing found that as to
the plaintiff’s breach of express and implied warranty claims, “individual issues going to
causation, notice, coverage, privity and statute of limitations predominate over any common
113
Id. (citing Chemtrol Adhesives v. Am. Mfrs. Mut. Ins. Co., 537 N.E.2d 624, 638 (Ohio 1989)); but see
Forsher, 612 F. Supp. 3d at 726 (stating that adequate pre-suit notice is a necessary prerequisite to bring a claim for
breach of express warranty).
114
Eaton Corp. v. Angstrom Auto. Grp., LLC, No. 1:20-cv-893, 2024 WL 342699, at *6–8 (N.D. Ohio, Jan.
30, 2024).
115
Hummel v. Tamko Bldg. Prods., Inc., 303 F. Supp. 3d 1288, 1298 (M.D. Fla. 2017).
116
Id. at 1298–99.
26
questions in this case.”117
Here, the determination of whether each class member provided notice, and did so within
a reasonable amount of time, will be highly individualized. And even if notice is not an absolute
rule in Ohio, the circumstances for determining whether notice is not required is a highly
individualized fact inquiry.118 Thus, whether notice is required or may be inferred, individual
factual determinations will overwhelm the analysis.
In addition, there are other issues with proving these claims with common evidence. As
stated above in detail, the Court already found that whether the product was defective cannot be
proven by common evidence. Furthermore, there are individualized questions as to whether each
class member saw, or was exposed to, the warranty.119 Finally, the question of whether
Defendant’s breach of the warranty proximately caused each class member’s damages will be
highly individualized.120 Thus, the Court concludes that individualized issues predominate over
any common issues, and class certification on the express warranty claims must be denied.
c. Breach of Implied Warranty
Plaintiffs seek certification of a class to assert a breach of implied warranty claim in
Connecticut only.121 “In Connecticut, ‘a warranty that the goods shall be merchantable is
implied in a contract for their sale if the seller is a merchant with respect to goods of that
117
In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., No. 1:13-md-2495-TWT, 2017 WL
2536794, at *7 (N.D. Ga. June 9, 2017).
118
See Eaton, 2024 WL 342699, at *6–8. Alternatively, even if notice could be considered on a class-wide
basis in Ohio, the other individualized questions as to causation defeat the predominance showing.
119
See In re Hardieplank Fiber Cement Siding Litig., No. 12-2359, 2018 WL 262826, at *17 (D. Minn. Jan.
2, 2018) (finding that under Ohio law that whether each class member was exposed to, and relied upon, the specific
representation regarding the warranty would require an individualized analysis).
120
Id.; see also In re Atlas Roofing, 2017 WL 2536794, at *7.
Plaintiffs’ breach of implied warranty theory falls under the CPLA. As stated above, Plaintiffs’ claim
requires resolution of whether the product was defective. See Hunte v. Abbott Lab’ies, Inc., 556 F. Supp. 3d 70, 82
(D. Conn. 2021) (quoting Bifolck v. Philip Morris, 152 A.3d 1183, 1202 (Conn. 2016)).
121
27
kind.’”122 A claim for a breach of an implied warranty of merchantability requires proof that “1)
a merchant sold the goods; 2) the goods were defective and not merchantable at the time of sale;
3) injury occurred to the buyer or his property; 4) the injury was caused by the merchant’s
defective product; and 5) notice was given to the seller of the claimed breach.”123
Here, common issues do not predominate. As explained above with the strict liability
claims, whether the shingles were defective involve individualized inquiries that cannot be
answered on a class-wide basis. And as explained above with the breach of express warranty
claim, the question of notice will be highly individualized. If notice was not given, it will
preclude the claim. And finally, the question of causation will be an inherently individualized
inquiry.124 Because the individualized issues outweigh any common issues, this claim is not
susceptible to class-wide proof.
d. Negligence
Plaintiffs also seek certification of a negligence claim under the CPLA in Connecticut.
“To prevail on a claim for negligence under the CPLA, a plaintiff must establish: (1) duty; (2)
breach of that duty; (3) causation; and (4) actual injury.”125 Plaintiffs contend that the central
122
Ferry v. Mead Johnson & Co., LLC, 514 F. Supp. 3d 418, 445 (D. Conn. 2021) (citing Conn. Gen. Stat.
§ 42a-2-314(1)).
123
Id. (quoting Gallinari v. Kloth, 148 F. Supp. 3d 202, 215 (D. Conn. 2015) abrogated on other grounds
by Corley v. United States, 11 F.4th 79 (2d Cir. 2021)); see also Zeigler v. Sony Corp. of Am., 849 A.2d 19, 24
(Conn. 2004) (discussing a breach of implied warranty claim and that “plaintiff, as well as the other class members,
is required to give individualized notice and the notice required is not simply notice of a defect-of which the
defendants may already be aware-but notice of this plaintiff’s claim the alleged defects constituted a breach of
warranty.”) (citation omitted).
124
See In re Atlas Roofing Corp., 2017 WL 2536794, at *7 (finding that numerous individualized inquiries
precluded certification of a breach of express warranty or breach of implied warranty class); Gonzalez v. Owens
Corning, 317 F.R.D. 443, 519–20 (W.D. Pa. 2016) (noting that causation must be proven for an implied warranty
claim and finding that the plaintiffs could not “meet their burden to establish that causation can be proven by
evidence that is common to the proposed four-state class.”).
125
Hunte, 556 F. Supp. 3d at 88 (quoting Leonard v. Gen. Motors LLC, 504 F. Supp. 3d 73, 93 (D. Conn.
2020)).
28
elements of the claim may be proven by common evidence—such as whether Defendant was
negligent in the design and marketing of the shingles, and whether that negligence caused harm.
The court in Hummel addressed similar problems with certifying a negligence action.126
The Middle District of Florida noted that “[t]he main hurdle to certification of [the plaintiff’s]
negligence actions is the issue of causation.”127 The court found:
[T]he causation inquiry will require proof that any alleged defects
in the class member’s [s]hingles were caused by a breach of duty
by [Defendant] in its design and manufacturing of the [s]hingles.
The very nature of shingles makes such an inquiry highly
individualized. There are many causes of shingle and roofing
defects, such as weather-related problems, build-up of leaves and
debris, foot traffic, excessive and/or harmful cleaning, and
environmental factors such as heat and moisture.128
Ultimately, the court found that individualized causation inquiries would “be required for all of
the individual class members, making the negligence claims raised by [the plaintiff] inherently
ill-suited for class certification.129
Here, the Court is persuaded by the reasoning of the Hummel court. The question of
causation for each class member will be highly individualized. Each individual class member
will likely have different factual circumstances relating to the shingles such that causation will be
126
Hummel v. Tamko Bldg. Prods., Inc., 303 F. Supp. 3d 1288, 1299–1300 (M.D. Fla. 2017).
127
Id. at 1299. The Court recognizes that Florida law is slightly different for a negligence claim than
Connecticut law. Specifically, in a product liability case in Florida, the question is whether “the manufacturer was
under a legal duty to design and manufacture a product reasonably safe for use.” Id. In Connecticut, “[t]he test for
the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s
position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature
of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the
defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular
plaintiff in the case.” Leonard, 504 F. Supp. 3d at 93–94 (quoting Simaneau v. Stryker Corp., No. 3:13-CV-1200,
2014 WL 1289426, at *11 (D. Conn. Mar. 31, 2014)). The Court relies upon Hummel for its reasoning as to the
individualized inquiries as to causation—not the court’s analysis as to a duty.
128
Hummel, 303 F. Supp. 3d at 1299 (citing Gonzalez v. Owens Corning, 317 F.R.D. 443, 520 (W.D. Pa.
129
Id. at 1299–1300.
2016)).
29
an individualized inquiry. Just between the four named Plaintiffs in this case, there are differing
issues as to environmental factors and the installation of the shingles. Thus, although there may
be a common issue of whether a duty exists, the determination of the individualized causation
issues will predominate over any common issues. The Court finds that class certification of this
claim is not warranted.
e. Unjust Enrichment
Plaintiffs bring an unjust enrichment claim under both Connecticut and Illinois law. “To
state a claim of unjust enrichment in Connecticut, a plaintiff must plausibly allege ‘(1) that the
defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the
benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.’”130
In Illinois, to state an unjust enrichment claim, “a plaintiff must allege that the defendant
has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the
benefit violates the fundamental principles of justice, equity, and good conscience.”131
Plaintiffs contend that the central elements of these claims may be proven by common
evidence because they involve Defendant’s sale of the shingles and the wrongful retention of the
proceeds. Yet, here, the underlying issue of whether Defendant was unjustly enriched relies on
the determination of whether the product was defective. In other words, Defendant’s retention of
sales proceeds is unjust only if the shingles were defective. As in Gonzalez, Plaintiffs’ claim is
premised on and requires proof that the shingles were defectively designed.132 And as noted
130
FIH, LLC v. Found. Cap. Partners LLC, 176 F. Supp. 3d 52, 95 (D. Conn. 2016) (quoting Vertex, Inc. v.
City of Waterbury, 898 A.2d 178, 190 (Conn. 2006)).
131
Cleary v. Philip Morris, Inc., 656 F.3d 511, 516 (7th Cir. 2011) (quoting HPI Health Care Servs., Inc. v.
Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989)).
132
See Gonzalez, 317 F.R.D. at 511–12 (addressing an unjust enrichment claim under Illinois,
Pennsylvania, California, and Texas law).
30
above, there are individualized questions on this issue.
Furthermore, the court in Gonzalez specifically addressed the need for the plaintiffs to
prove causation for an unjust enrichment claim under Illinois law.133 The court stated that the
plaintiff “‘must show a detriment—and, significantly, a connection between the detriment and
the defendant’s retention of the benefit.’”134 Finding that the plaintiffs lacked common evidence
to establish causation, the Gonzalez court found that the plaintiffs could not meet the
predominance standard as to the unjust enrichment claim.135
Here, similarly, the same issue exists. Plaintiffs’ unjust enrichment theory is not separate
from its product liability claim because Plaintiffs’ claim is premised on the existence of a defect.
Specifically, Plaintiffs contend that it was unjust for Defendants to retain a monetary benefit
when the product it provided was defective. As explained above in detail, Plaintiffs cannot
prove the existence of a defect with common evidence. Thus, the Court finds that predominance
is also not met with the unjust enrichment claim.
f. Fraudulent NonDisclosure/Concealment and
Negligent Misrepresentation
Plaintiffs assert a fraudulent nondisclosure/concealment claim in Connecticut, Illinois,
and Ohio.136 Connecticut defines fraudulent nondisclosure as:
Fraud by nondisclosure . . . involves the failure to make a full and
fair disclosure of known facts connected with a matter about which
a party has assumed to speak, under circumstances in which there
was a duty to speak . . . . A lack of full and fair disclosure of such
133
Id. at 519 (citing Cleary, 656 F.3d at 516, 519).
134
Id. (quoting Cleary, 656 F.3d at 516, 519).
135
Id. at 520; see also Collier v. Adar Hartford Realty, LLC, No. X07-HHD-CV-19-6115255-S, 2022 WL
18054024, at *16 (Conn. Super. Ct. Nov. 21, 2022) (noting that when individualized proof was required to establish
the specific conditions in each challenged apartment unit, it was not appropriate to certify an unjust enrichment
claim).
136
Plaintiffs grouped the fraudulent disclosure/concealment and negligent misrepresentation claims
together in their briefing. Thus, the Court will do so as well.
31
facts must be accompanied by an intent or an expectation that the
other party will make or will continue in a mistake, in order to
induce that other party to act to her detriment.137
In Illinois, the elements of a fraudulent concealment claim include: “(1) false statement of
material fact; (2) the defendant’s knowledge or belief that the statement was false; (3) the
defendant’s intent that the statement induce the plaintiff to act; (4) the plaintiff’s justifiable
reliance upon the truth of the statement; and (5) damages resulting from reliance on the
statement.”138
In Ohio, the elements of a fraud claim (whether that be fraudulent nondisclosure or
fraudulent misrepresentation) are:
(1) a representation or, when there is a duty to disclose, a
concealment of a fact; (2) which is material to the transaction at
hand; (3) made falsely, with knowledge of its falsity, or with such
utter disregard as to whether it is true or false that knowledge may
be inferred; (4) with the intent of misleading another into relying
upon it; (5) justifiable reliance on the representation or
concealment; and (6) an injury proximately caused by that
reliance.139
As to the negligent misrepresentation claim, Plaintiffs only assert it under Connecticut
and Illinois law.140 A negligent misrepresentation claim in Connecticut requires the plaintiff to
show “(1) that the defendant made a misrepresentation of fact (2) that the defendant knew or
should have known was false, and (3) that the plaintiff reasonably relied on the
misrepresentation, and (4) suffered pecuniary harm as a result.”141
137
Saggese v. Beazley Co. Realtors, 109 A.3d 1043, 1054 (Conn. App. Ct. 2015) (quoting Reville v.
Reville, 93 A.3d 1076, 1087 (Conn. 2014)).
138
Bauer v. Giannis, 834 N.E.2d 952, 957 (Ill. App. Ct. 2005) (citation omitted).
139
Stuckey v. Online Res. Corp., 819 F. Supp. 2d 673, 682 (S.D. Ohio 2011) (citation omitted).
140
Plaintiffs’ negligent misrepresentation claim in Connecticut falls under the CPLA.
141
Nazami v. Patrons Mut. Ins. Co., 910 A.2d 209, 213 (Conn. 2006) (citation omitted).
32
To state a claim for negligent misrepresentation in Illinois, a plaintiff must allege:
(1) a false statement of material fact; (2) carelessness or negligence
in ascertaining the truth of the statement by the party making it; (3)
an intention to induce the other party to act; (4) action by the other
party in reliance on the truth of the statement; (5) damage to the
other party resulting from such reliance; and (6) a duty on the party
making the statement to communicate accurate information.142
Plaintiffs contend that both the fraudulent nondisclosure/concealment claims and the
negligent misrepresentation claims may be proven by common evidence because they involve
Defendant’s knowledge, duties, conduct (including falsely representing that the shingles met
industry standards) and intent. In addition, they contend that reliance may be proven by common
evidence of uniform misrepresentations. Defendant asserts that Plaintiffs cannot prove exposure
to a misrepresentation or deception on a class-wide basis and that individualized evidence will be
necessary.
The Court again finds the reasoning in Hummel and In re Atlas Roofing persuasive here.
In In re Atlas Roofing, the plaintiff asserted fraudulent misrepresentation, fraudulent
concealment, and negligent misrepresentation claims.143 The plaintiff (like Plaintiffs in this case)
asserted that “all the class members relied on [the defendant’s] alleged omission and
misrepresentations regarding the durability of the [s]hingles when they purchased the
[s]hingles.”144 The Northern District of Georgia found that where “there are both material
variation in the representations and kinds of degrees of reliance by the class members,” common
issues are lacking, and “the class will need to prove reliance through individual evidence.”145 The
142
Hartford Fire Ins. Co., v. Henry Bros. Const. Mgmt. Servs., LLC, 877 F. Supp. 2d 614, 618 (N.D. Ill.
2012) (citation omitted).
143
See In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., No. 1:13-md-2495-TWT, 2017 WL
2536794, at *10–12 (N.D. Ga. June 9, 2017).
144
Id. at *11.
145
Id.
33
court also noted that “[f]or the alleged misrepresentation, each class member would need to
establish what particular marketing material or industry standard he or she observed and relied
upon. This is further complicated by third party wholesalers, retailers, and contractors who made
the purchase decisions for the vast majority of the [s]hingle purchases.”146 The court concluded
that in a case where such highly individualized evidence is necessary to demonstrate both
fraudulent concealment and negligent misrepresentations, predominance is not satisfied.147
In addition, in Hummel, the plaintiff asserted a claim under the Florida Deceptive and
Unfair Practices Act (“FDUTPA”) for alleged misrepresentations about the defendant’s shingles
on its website and other promotional sources.148 The court found that class certification was not
warranted because the predominance requirement was not met.149 Specifically, the court found
that it “must determine whether individual members reviewed specific product literature, or
whether individual members reviewed the website in anticipation of purchasing the
[s]hingles.”150 The court concluded that these inquiries were “fact-intensive individualized
inquiries” that could not meet the predominance standard.151
“[E]fforts to certify classes based on causes of action that require an element of causation
. . . often turn on whether the class can demonstrate that reliance is susceptible to generalized
proof.”152 Here, there will be numerous individualized factual inquiries. The class members
146
Id.
147
Id. at *10–12; see also Hummel v. Tamko Bldg. Prods., Inc., 303 F. Supp. 3d 1288, 1300 (M.D. Fla.
2017).
148
Hummel, 303 F. Supp. 3d at 1300. The Court recognizes that the Hummel court was discussing a
different claim, but the FDUTPA claim also involves whether misrepresentations were made. Id.
149
Id.
150
Id.
151
Id.
152
CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1089 (10th Cir. 2014) (citations omitted).
34
may attempt to rely on multiple or different misrepresentations, including written and/or oral
statements. Whether each class member was exposed to a misrepresentation will be an
individualized factual inquiry, and identifying which alleged misrepresentation class members
relied upon, will be an individualized factual inquiry. Indeed, none of the named Plaintiffs in
this case even rely on the same misrepresentations. For example, the Melnicks consulted with a
roofer and state that they viewed Defendant’s website. Ms. Louthan alleges that she relied on
her roofer’s oral representation and Defendant’s brochure. As to Summerfield Gardens, it
alleges an oral misrepresentation.153 Thus, even among the named Plaintiffs, the reliance
element is not susceptible to common evidence.154 Finally, the Court notes that Plaintiffs’ class
definition also includes individuals who purchased homes with Defendant’s shingles already on
the home. These individuals would not have been exposed to a misrepresentation or omission
from Defendant. Accordingly, the Court finds that Plaintiffs cannot meet the predominance
standard with these claims because individual issues of reliance outweigh any common
questions.
g. Violation of OCSPA
Plaintiffs bring a claim under the OCSPA, which “prohibits unfair, deceptive, and
unconscionable practices in consumer sales transactions.”155 Generally, unfair or deceptive
consumer sales practices are “those that mislead consumers about the nature of the product they
153
As to the initial purchase of the shingles, Summerfield Gardens’ developer purchased the shingles. The
developers had already been using Heritage Shingles before the construction of Summerfield Gardens, and Plaintiffs
do not identify any specific representations made to the developers. The only alleged misrepresentation—that
Summerfield Gardens received a bad batch of shingles—is intensely fact-specific.
154
The Court recognizes that Plaintiffs contend that Defendant falsely represented that its product met
relevant industry standards and that the shingles would last a certain amount of time. As noted above, however,
there must be common evidence that each class member was exposed to such a misrepresentation for the Court to
certify such a claim.
155
Marrone v. Philip Morris USA, Inc., 850 N.E.2d 31, 33 (Ohio 2006) (citing Ohio Rev. Code. Ann.
§§ 1345.02, 1345.03).
35
are receiving,” and unconscionable acts “relate to a supplier manipulating a consumer’s
understanding of the nature of the transaction at issue.”156 Before proceeding as a class action
with an OCSPA claim, there is an additional requirement of “sufficient prior notice of what
conduct was already declared to be deceptive.”157 Thus, a class action plaintiff must demonstrate
that “the defendants’ alleged violations of the OCSPA are substantially similar to an act or
practice previously declared to be deceptive by . . . a declaration by the Attorney General [or] a
decision by the court in the state of Ohio.”158 In addition, “Plaintiffs bringing OCSPA classaction suits must allege and prove that actual damages were proximately caused by the
defendant’s conduct.”159 “If the class plaintiff fails to establish that all of the class members
were damaged (notwithstanding questions regarding the individual damages calculations for each
class member[]), there is no showing of predominance under [Rule] 23(b)(3).”160
Here, Plaintiffs contend that the unfair or deceptive acts under the OCSPA is Defendant’s
marketing and selling of the shingles with false representations and improperly denying and
obstructing warranty claims. As noted above, there are highly individualized questions as to the
actual misrepresentations.161 Inquiries into the denial of warranty claims would also be highly
156
McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 743 (N.D. Ohio 2010) (quoting Whitaker v. M.T. Auto.,
Inc., 855 N.E.2d 825, 829 (Ohio 2006)).
157
CACH, LLC v. Young, No. 15 MA 0176, 2021 WL 6276314, at *22 (Ohio Ct. App. Dec. 17, 2021)
(citing Marrone, 850 N.E.2d at 34).
158
Beard v. Dominion Homes Fin. Servs, Inc., No. 2:06-cv-00137, 2007 WL 2838934, at *9 (S.D. Ohio
Sept. 26, 2007) (citations omitted).
159
Felix v. Ganley Chevrolet, Inc., 49 N.E.3d 1224, 1231 (Ohio 2015) (citation omitted).
160
Id. at 1233 (citations omitted).
161
Because the Court finds that individualized fact questions predominate over common issues, it does not
address the additional requirement required to certify a OCSPA class, i.e, that Defendant’s actions are substantially
similar to “either: (1) a rule [] adopted by the Attorney General under R.C. 1345.05(B)(2) . . . or (2) a court [in Ohio]
declar[ing] the disputed act or practice violative of the [O]CSPA in a [public] decision.” CACH, 2021 WL 6276314,
at *22 (citation omitted). In CACH, the Ohio Court of Appeals reversed the trial court’s certification of a class
action under the OCSPA by finding that the trial court erred in determining that the actions were substantially
similar “to an act or practice previously declared to be a violation of the OCSPA in the state cases . . . .” Id. at *22–
25.
36
individualized as each case would require determining whether the claimant met the warranty
requirements. For example, there are individualized inquiries as to whether Ms. Louthan, the
named class representative for the OCSPA claim, properly made a warranty claim or was
covered by the warranty because she was not the title owner of the house when the shingles were
installed. Accordingly, the Court finds that Plaintiff cannot establish that common issues
outweigh individual issues with regard to this claim.
h. Violation of the CPLA
As noted above, product liability claims are required to be brought under the CPLA in
Connecticut.162 The various common law theories asserted by Plaintiffs under the CPLA
included strict liability, negligence, breach of express warranty, breach of implied warranty, and
negligent misrepresentation. The Court addressed each theory above, and for the same reasons
asserted above, Plaintiffs’ CPLA claim cannot be certified as a class action because
individualized issues predominate over common issues.
iii. Damages and Affirmative Defenses
The calculation of Plaintiffs’ damages and the consideration of Defendant’s affirmative
defenses also weigh in the Court’s determination to deny class certification. “The fact that
damages may have to be ascertained on an individual basis is not, standing alone, sufficient to
defeat class certification.”163 Rather, predominance will only be destroyed if the “material
162
Hunte v. Abbott Lab’ies, Inc., 556 F. Supp. 3d 70, 82 (D. Conn. 2021). Plaintiffs included an additional
section addressing their CPLA claim. Thus, the Court will also separately address this cause of action even though
all theories under the CPLA were addressed above.
163
Naylor Farms, Inc. v. Chaparral Energy, LLC, 923 F.3d 779, 798 (10th Cir. 2019) (quoting Menocal v.
GEO Grp., Inc., 882 F.3d 905, 922 (10th Cir. 2018)); see also Sherman v. Trinity Teen Solutions, Inc., 84 F.4th
1182, 1194 (10th Cir. 2023) (noting that when one or more central issues are common and predominant, “the action
may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately,
such as damages or some affirmative defenses peculiar to some individual class members.” (quoting Tyson Foods,
Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)).
37
differences in damages determinations” are individualized issues that overwhelm common
questions to the class.164 Like the damages question, the assertion of an affirmative defense does
not necessarily preclude a predominance finding.165 Instead, the question is whether the
common issues predominate over the individualized issues.166
Plaintiffs assert two types of damages: (1) the cost to remove and replace the shingles; and
(2) the cost to repair any damage caused by the shingles. Plaintiffs propose a uniform method
for calculating removal and replacement of the shingles. As to the cost of repair, however,
Plaintiffs concede that it will not be uniform across the class, but Plaintiffs contend that
calculation of these damages on an individualized basis should not defeat class certification.
Here, the determination as to each class member’s damages appears highly individualized.
Even if Plaintiffs’ first proposed method for determining the cost of removing and replacing the
shingles could be uniformly applied, there is no way to uniformly calculate the cost of repair.
Plaintiffs do not propose a uniform method for evaluating repair costs, and evaluating repair
costs on a case-by-case basis is yet another individualized inquiry in the case. In addition,
Defendant’s affirmative defenses, which include statute of limitations/statute of repose, accord
and satisfaction, and contributory negligence, also require consideration of individualized
evidence and present individualized inquiries. Thus, although the individualized damages
inquiry or affirmative defenses inquiry do not alone defeat class certification, the consideration
164
Naylor Farms, 923 F.3d at 798 (quoting Wallace B. Roderick Revocable Living Trust v. XTO Energy,
Inc., 725 F.3d 1213, 1220 (10th Cir. 2013)).
165
Sherman, 84 F.4th at 1194 (citation omitted); see also Nieberding v. Barrette Outdoor Living, Inc., 302
F.R.D. 600, 617 (D. Kan. 2014) (stating that “the individual questions posed by the statute of limitations issue are
not so serious or difficult to resolve that” they overwhelm the substantial common issues.).
166
Sherman, 84 F.4th at 1194.
38
of these questions, in addition to the other individualized issues above, weighs against a
predominance finding.167
iv. Predominance Summary
Each named Plaintiff relies on a unique set of facts, and although they assert some of the
same claims, the claims require the Court to apply a different state law to each of the claims.
There are numerous individualized factual issues as to each claim that cannot be proven by
common evidence. There are also individualized inquiries as to damages and affirmative
defenses. Although there are some common issues, the common issues do not substantially
outweigh the individualized issues. Instead, any common issues of law and fact are far
outweighed by the numerous individualized inquiries and applicable state laws. Accordingly, the
Court finds that Plaintiffs cannot establish predominance under Rule 23(b)(3).
b. Superiority
Federal Rule of Civil Procedure 23(b)(3) also requires that Plaintiffs demonstrate “that a
class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.”168 When determining superiority, the following factors may be relevant:
(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
167
See Gonzalez v. Owens Corning, 317 F.R.D. 443, 521–22, 523 (W.D. Penn. 2016) (stating that the
“plaintiffs failure to demonstrate that damages can be proven by common evidence further demonstrates that
certification of the proposed four-state class is improper” and that “[e]ven if the named plaintiffs could prove injury,
causation, and damages with common proof,” the individual statutes of limitation defenses prevented a
predominance finding).
168
Fed. R. Civ. P. 23(b)(3); see also In re Universal Serv. Fund Tel. Billing Pracs. Litig., 219 F.R.D. 661,
679 (D. Kan. 2004) (“The requirement that a class action be the superior method of resolving the claims insures that
there is no other available method of handling the litigation which has greater practical advantages.”).
39
(D) the likely difficulties in managing a class action.169
In this case, a class action is not a superior method to adjudicate these claims. First, as
noted above, there are numerous individualized inquiries. Based on the number of
individualized factual and legal inquiries, adjudicating these claims on a class-wide basis
presents practical and administrative problems.170
In addition, each class member’s individual recovery weighs against a finding that a class
action is the superior method for adjudicating claims. “‘The policy at the very core of the class
action mechanism is to overcome the problem that small recoveries do not provide the incentive
for any individual to bring a solo action prosecuting his or her rights.’”171 Here, the individual
recoveries are not small. Plaintiffs are seeking repair and/or replacement of their roofs, as well
as any other damages that may have been caused by damage to the roofs.172 In contrast to a case
where the individual class member’s recovery is measured in dollars, the recovery here could be
measured in the thousands and tens of thousands for each class member. Because of the amount
of recovery, Plaintiffs’ contention that class members would lack the incentive to proceed
individually is without merit.173
169
Fed. R. Civ. P. 23(b)(3)(A)–(D).
170
See In re Atlas Roofing, 2017 WL 2536794 at *13 (finding that superiority was not met because
“adjudicating these claims on a class-wide basis will likely present a manageability problem” as “[t]here will be
numerous fact-intensive individual inquiries, including physical inspection of class members’ [s]hingles and
individual testimony regarding when class members discovered the defect and provided notice to [the defendant].”).
171
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109
F.3d 338, 344 (7th Cir. 1997)).
172
For example, the Melnicks seek several thousands of dollars for damage to the inside of their house that
they contend was caused by the shingles’ failure.
173
See Gonzalez v. Owens Corning, 317 F.R.D. 443, 524–25 (W.D. Pa. 2016) (finding that a class action
was not a superior method and noting that the claims were not financially insignificant because they ranged from
$5,000 to $22,000 which was in contrast to the harm in some class action cases that involved minor consumer
transactions amounting to approximately $30 each claim); In re Atlas Roofing, 2017 WL 2536794, at *13 (noting
that replacing a roof could be several thousand dollars and the case was “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,”
40
Furthermore, there are manageability problems with instructing the jury should the case
proceed. The jury would have to consider nineteen different causes of action under three
different state laws.174 Due to the individualized issues and variations in state law, the Court
finds that Plaintiffs cannot meet the superiority requirement in Rule 23(b).
B.
Rule 23(c)(4) Issue Certification
Plaintiffs alternatively request that if the Court declines to certify a class that the Court
certify common issues. “Rule 23(c)(4) advances judicial economy by allowing adjudication of
issues common to the class even when the entire case does not satisfy the requirements to
proceed as a class action.”175 To certify an issue class under Rule 23(c)(4), the issue class itself
must meet the requirements of Rules 23(a) and the predominance and superiority requirements of
Rule 23(b).176 Certifying an issue class is “inappropriate ‘if the noncommon issues are
inextricably entangled with common issues or . . . are too unwieldy or predominant to be handled
on a class action basis.’”177 Whether “resolution of the issue class will ‘materially advance’
resolution of the dispute” is a “pertinent consideration to finding whether Rule 23(b)(3)’s
superiority requirement is met.”178
Plaintiffs’ alternative argument as to issue certification is vague and cursory. They state
that “resolution of common issues—such as duty, breach, or liability—would substantially
thus disagreeing “with the plaintiff’s contention that the class members lack any significant interest in controlling
the litigation.”)
174
See, e.g., In re HomeAdvisor, Inc. Litig., 345 F.R.D. 208, 237 (D. Colo. 2024) (noting that a nationwide
class action with an additional nine state classes was not a superior method because the application of numerous
state laws and instructing the jury on the application of multiple state laws, was not manageable).
175
Black v. Occidental Petroleum Corp., 69 F.4th 1161, 1189 (10th Cir. 2023) (citation omitted).
176
Id. at 1188.
177
Id. (quoting In re Motor Fuel Temperature Sales Pracs. Litig., 292 F.R.D. 652, 665 (D. Kan. 2013)
(alteration in original)).
178
Id. (quoting In re Motor Fuel, 292 F.R.D. at 665).
41
advance the litigation for future resolution of any remaining individualized issues.”179 They
assert that the existence of a defect, Defendant’s duties, misrepresentations, knowledge, and
intent are all provable by common evidence. Plaintiffs, however, do not expand on this
argument or set forth any specifics.
The Court denies Plaintiffs’ request for issue certification. First, Plaintiffs’ cursory
reference as to what issues they seek to certify is insufficient. Presumably, Plaintiffs rely on the
same arguments that they asserted as to their claims, but it is Plaintiffs’ burden to demonstrate to
the Court, with specificity, what issues they seek certification for.180 In addition, they must set
forth how the issue class will satisfy predominance and how it is superior to other methods of
adjudication.181 Plaintiffs fail to do so.182
In addition, Plaintiffs do not adequately explain how certifying any issues would materially
advance the litigation. In analyzing Plaintiff’s claims above, the Court found that common
issues did not predominate over individualized issues. All of Plaintiff’s claims have numerous
individualized inquiries. Even though Plaintiffs set forth common issues, the individualized
issues still predominate, and there is no reason to find that an issue class is superior to other
methods for adjudicating an issue.183 Thus, certifying any issues would not promote judicial
179
Doc. 301 at 49.
180
As shown above, Plaintiffs’ claims (and thus the issues as well) are numerous.
181
See, e.g., Martinez v. FedEx Ground Package Sys., Inc., No. 20-1052 SCY/LF, 2023 WL 7114678, at
*16–17 (D.N.M. Oct. 27, 2023) (noting that the plaintiffs did not identify how the issue class would satisfy
predominance, nor analyze the superiority of an issue class, and thus because the plaintiff’s brief did not
“sufficiently address the factors required for the Court to certify an issue, they did not carry their burden to
demonstrate this case is suited for issue certification.”).
In their reply, Plaintiffs state that they propose certification of an issue class “centering on [Defendant’s]
liability.” Doc. 361 at 24. Yet, they still do not adequately elaborate on predominance and superiority with an issue
class.
182
183
See In re Atlas Roofing Corp. Chalet Shingle Prods. Liab. Litig., No. 1:14-cv-3034-TWT, 2017 WL
2536794, at *14 (N.D. Ga. June 9, 2017) (finding that a Rule 23(c)(4) issue class should not be certified and noting
that “[t]he [p]laintiffs’ case for certification collapses when it confronts the fact that certification of a common issues
42
efficiency or materially advance the litigation. Accordingly, Plaintiffs’ request for issue
certification is denied.
C.
Proposed Rule 23(b)(2) Class
Plaintiffs also seeks to certify the following 23(b)(2) class:
All individuals and entities that own homes, residences, buildings
or other structures physically located in Connecticut, Ohio or
Illinois on which TAMKO Heritage shingles purchased between
January 1, 2000 and November 20, 2004 are currently installed.
Excluded from the class are (i) TAMKO and its affiliates,
subsidiaries, employees, and current and former officers, directors,
agents, and representatives; and (ii) members of this Court and its
staff.184
They seek declaratory and injunctive relief, including a declaration that “all Heritage Shingles
manufactured by [Defendant] during the class period suffer from an inherent defect rendering
them unfit for their ordinary and anticipated use”; a declaration that Defendant “knew of the
defects in its shingles and that the limitations contained in the warranties accompanying [the]
shingles are unenforceable”; an injunction requiring that Defendant “establish an inspection
program and protocol” which would “require [Defendant] to inspect, upon request, a class
member’s [shingles] to determine whether they exhibit product deterioration or failures”; and an
injunction requiring that Defendant “establish a program to re-audit and reassess all prior
warranty claims on [its] shingles, including claims previously obstructed or denied in whole or in
part.”185
Under Rule 23(b)(2), Plaintiffs must demonstrate that “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final injunctive relief
class will not dispose of a single case or eliminate the need for a single trial”) (quoting In re Conagra Peanut Butter
Prods. Liab. Litig., 251 F.R.D. 689, 701 (N.D. Ga. 2008)).
184
Doc. 301 at 49.
185
Id.
43
or corresponding declaratory relief is appropriate respecting the class as a whole.”186 “Rule
23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to
each member of the class.”187 Class certification under this provision is not authorized when
individual class members would be entitled to different injunctive or declaratory relief.188 In
addition, “it does not authorize class certification when each class member would be entitled to
an individualized award of monetary damages.”189
Plaintiffs argue that any monetary damages Defendant may have to pay as a result of the
injunctive relief are incidental. The Court disagrees. As noted by the Supreme Court, monetary
claims may only proceed in a Rule 23(b)(2) class if they are incidental to the injunctive or
declaratory relief.190 Plaintiffs’ request for injunctive relief would effectively result in
individualized monetary damages for each of the putative class members because it requires
Defendant to establish a program for inspecting class members’ roofs with the ultimate result of
replacement or repair of the allegedly defective product. Thus, the Court denies Plaintiffs’
request for certification of a class under Rule 23(b)(2).
D. Summary
In sum, the Court denies Plaintiffs’ request for class certification. Plaintiffs cannot meet
the typicality and adequacy requirements under Rule 23(a), and Plaintiffs cannot satisfy the
186
Fed. R. Civ. P. 23(b)(2).
187
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).
188
Id.
189
Id. at 360–61; see also Brayman v. KeyPoint Gov’t Sols., Inc., 83 F.4th 823, 836 (10th Cir. 2023).
190
Wal-Mart Stores, 564 U.S. at 360; see also Hummel v. Tamko Bldg. Prods., Inc., 303 F. Supp. 3d 1288,
1300–01 (M.D. Fla. 2017) (declining to certify a Rule 23(b)(2) sub-class by finding that the monetary damages
sought in the case were not incidental to the plaintiff’s declaratory relief); In re Atlas Roofing Corp. Chalet Shingle
Prods. Liab. Litig., No. 1:14-cv-3034-TWT, 2017 WL 2536794, at *14 (N.D. Ga. June 9, 2017) (denying the
plaintiff’s proposed Rule 23(b)(2) class that requested the declaratory relief that the shingles were defective and that
the warranties were void because it was “clear that the monetary damages [were] not incidental to the requested
declaratory relief”).
44
predominance and superiority requirements under Rule 23(b)(3). In addition, the Court denies
Plaintiffs’ request for class certification under Rule 23(b)(2) because Plaintiffs are effectively
seeking monetary damages rather than injunctive or declaratory relief. Finally, the Court denies
Plaintiffs’ request for an issue class under Rule 23(c)(4) because Plaintiffs fail to adequately
address the requirements and do not demonstrate that an issue class would advance judicial
economy.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Class Certification (Doc.
300) is denied.
IT IS SO ORDERED.
Dated: March 27, 2024
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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