A federal judge presiding over the IKO “organic” roof shingles multidistrict litigation has rejected class certification.
The plaintiffs wanted to certify a class for claims of breach of express and implied warranties, fraudulent concealment and consumer fraud violations involving plaintiffs who installed IKO organic mat shingles in Illinois, Iowa, Massachusetts, Michigan, New Jersey, New York, Ohio and Vermont. The plaintiffs’ theory is that the defendants did not make the shingles to American Society for Testing and Materials (ASTM) Standards, leading the shingles to decay prematurely.
U.S. District Judge Harold A. Baker said that the plaintiffs can’t show commonality of causation and damages, including because the testing by the plaintiffs’ expert showed no single defect was present in each of 165 shingles tested and because there are many variables as to why the shingles allegedly did not perform up to par.
The industry standards didn’t reference the “performance of the shingles,” so failure to conform to industry standard can’t support express warranty claims, said Baker, of the Central District of Illinois. The express warranty on the shingles also did not attest to how long the shingles would last, the judge said.
The defendants argued that “the questions of individual causation and the amount of individual damages are so disparate and dependent on individualized conditions that it is impossible to project common damages on a class-wide basis.”
The U.S. Supreme Court decisions in Wal-Mart Stores v. Dukes and Comcast v. Behrend “narrowed the plaintiffs’ remedies,” Baker opined. “In sum, the teachings of Wal-Mart and Comcast require the class plaintiffs to come forward with evidence that persuades the district court that there are common questions of law or fact (Rule 23(a)(2)), and if the plaintiffs proceed under Rule 23(b)(3), they must show that the class members will suffer the same damages occasioned by the conduct of the defendant. In short, the evidence must demonstrate that the plaintiffs will experience a common damage and that their claimed damages are not disparate.”
The Seventh Circuit’s decisions in Butler v. Sears, Roebuck and Co. and Parko v. Shell Oil also distinguish between broad injuries to a class of plaintiffs and plaintiffs’ more specific injuries, the judge said.
The plaintiffs also don’t fall into “homogenous subclasses” that would allow for class certification, as Circuit Court Judge Richard A. Posner described in Butler regarding a breach of warranty class action involving washing machines, Baker said.