7th Circuit Clarifies Comcast - Commonality of Damages

A recent decision by the Seventh Circuit further demonstrates the difficulty of defeating class certification based upon individual issues of damages.  Plaintiffs in multiple states brought claims against IKO Manufacturing and its affiliates, alleging IKO falsely claimed their roofing shingles met industry standards. Under 28 U.S.C. §1407, the suits were then consolidated to the Central District of Illinois. The district court subsequently denied the request to certify a class of shingle purchasers in eight total states. The plaintiffs sought interlocutory appeal in In the Matter of: IKO Roofing Shingle Products Liability Litigation (2014 WL 2958615). The district court denied class certification based upon the inevitable individual differences in actual shingle damages to each plaintiff, incorrectly concluding there could be no commonality of damages under Fed. R. Civ. P. 23(b)(3), relying on the Wal-Mart decision.  The Seventh Circuit explained that Wal-Mart Stores, Inc. v. Dukes (131 S. Ct. 2541) did not apply, as it concerned conduct common to class members relevant to liability, not commonality among damages. The Seventh Circuit held that Comcast Corp. v. Behrend (133 S. Ct. 1426) was controlling. Comcast, in discussing the role of injury under Rule 23(b)(3), requires matching a legal theory of liability to the economic injury from that event. The plaintiffs here had two possible matching theories: class members were injured by each shingle delivered that did not actually conform to the industry standards; or purchasers of tiles that actually failed were entitled to recover damages. The Seventh Circuit noted that the second theory would require individual hearings, but discussed various methods to frame issues of liability to suit class wide adjudication.

The Court stressed that the ruling did not require the district court to certify the class on remand. Additional practical considerations could persuade the district judge otherwise. The Seventh Circuit vacated the denial of class certification and remanded the case.