Gwen Hart v. Louisiana-Pacific Corporation

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2375

GWEN HART, on behalf of herself and all others similarly
situated; LUCILLE DRUTHER; JOSEPH DRUTHER; EDWARD WUELLNER;
JENNIFER WUELLNER,

Plaintiffs - Appellants,

v.

LOUISIANA-PACIFIC CORPORATION,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:08-cv-00047-BO)

Argued: September 16, 2015 Decided: March 10, 2016

Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Gary Edward Mason, WHITFIELD, BRYSON & MASON, LLP,
Washington, D.C., for Appellants. Richard Thell Boyette,
CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for
Appellee. ON BRIEF: Daniel K. Bryson, Scott C. Harris, Raleigh,
North Carolina, Nicholas A. Migliaccio, WHITFIELD, BRYSON &
MASON, LLP, Washington, D.C.; Joel R. Rhine, Jean S. Martin,
RHINE MARTIN LAW FIRM, P.C., Wilmington, North Carolina; Auley
M. Crouch, III, Christopher K. Behm, BLOCK, CROUCH, KEETER, BEHM
& SAYED, LLP, Wilmington, North Carolina; Charles A. Schneider,
Martha B. Schneider, SCHNEIDER & SCHNEIDER, Washington, D.C.,
for Appellants. Meghan N. Knight, CRANFILL SUMNER & HARTZOG
LLP, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Gwen Hart, Lucille and Joseph Druther, and Edward and

Jennifer Wuellner (collectively “Appellants”) own homes that

were built using TrimBoard, a construction material manufactured

by Louisiana-Pacific Corporation (“Appellee”). TrimBoard was

sold with an express, ten-year warranty (the “Warranty”) that

provided a specific and limited remedy if the product failed to

live up to expectations. Over time, Appellants grew

dissatisfied with their TrimBoard, and filed a class action

asserting claims for breach of the Warranty. They also claimed

the limited remedy was unconscionable and sought compensatory

damages not contemplated in the Warranty.

The district court certified the class initially, but

later concluded that some class members’ claims -- including

Appellants’ claims -- were barred by an applicable statute of

repose. The district court granted summary judgment to Appellee

on the time-barred claims and opted to decertify the class.

We affirm, but for slightly different reasons. In our

view, Appellee is entitled to summary judgment because the

Warranty’s limited remedy is not unconscionable. As a result,

we do not consider the district court’s conclusion about the

timeliness of Appellants’ claims. We also affirm the district

court’s decision to decertify the class.

3
 I.

A.

Appellants are North Carolina homeowners. Gwen Hart

completed construction of her home in Dare County, North

Carolina, in 1999. The Druthers and the Wuellners live in Apex,

North Carolina, in houses that were completed in 2000 and 2001,

respectively.

Each home was built using TrimBoard, a composite

building material sold by Appellee through its subsidiary,

ABTco. TrimBoard was marketed for use as exterior trim,

“perfect for all trim applications, including corner board,

fascia, window and door trim.” J.A. 274. 1 It was sold with an

express, limited, ten-year warranty that guaranteed TrimBoard’s

“substrate” 2 against “delamination, checking, splitting, cracking

and chipping . . . for a period of ten years” from the date of

installation, as long as it had been “properly stored,

installed, maintained, and protected.” Id. at 247; see also id.

at 344 (“[TrimBoard] substrate will not delaminate, check,

split, crack, or chip for a period of ten years from the date of

1
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
2
TrimBoard consists of a composite base to which a
laminate finish is applied. The substrate is the base of the
product, as opposed to the finish applied to it.

4
installation under normal conditions of use and exposure,

provided the trim is properly stored, installed, maintained, and

protected . . . .”).

The Warranty also provided an exclusive, limited

remedy. Before 2005, Appellee promised to “compensate the owner

for repair and replacement of the affected trim no more than

twice the original purchase price,” if TrimBoard failed within

the ten-year period. J.A. 358. After 2005, Appellee offered to

“pay an amount equal to the cost . . . of replacing any such

failed [TrimBoard] if failure occur[red] within ten years after

the [TrimBoard] was installed.” Id. at 364. Both versions of

the Warranty disclaimed all other warranties, including the

implied warranty of merchantability, and specifically barred the

recovery of “any other damages or losses, including” incidental

and consequential damages. Id. at 358, 364.

B.

Over time, the TrimBoard on Appellants’ homes began

splitting and cracking, absorbing moisture, and rotting and

degrading. Hart, for example, was told by a contractor that all

of the TrimBoard on her home was damaged and would need to be

replaced at an estimated cost of close to $5,000. She made a

claim under the Warranty in 2008. Appellee offered Hart

$3,772.32, but she rejected that offer because it was roughly

$1,300 less than the estimate she previously received. The

5
Druthers and Wuellners submitted claims under the Warranty in

2009. Appellee made offers to them as well, for $1,429.62 and

$820.95, respectively. Presumably, both offers were not

accepted.

After rejecting Appellee’s offer, Hart filed a

putative class action complaint in Dare County Superior Court on

October 22, 2008. Appellee removed the case to the District

Court for the Eastern District of North Carolina, after which

Appellants filed their operative amended complaint on September

21, 2009. That pleading was the first to include the Druthers

and Wuellners as named plaintiffs.

The amended complaint charged Appellee with “breach of

express warranty,” alleging TrimBoard “prematurely deteriorates,

rots, swells, buckles, delaminates, absorbs water, warps and/or

bulges under normal conditions,” resulting in “water and

structural damages[,] . . . growth of mold mildew, fungi, and

insect infestation in the structures in which it is installed.”

J.A. 141, 153. Appellants claimed the Warranty’s limited remedy

provision was unconscionable because Appellee allegedly knew

that TrimBoard was defective but sold it anyway. They

maintained they were, therefore, entitled to recover damages

otherwise excluded by the Warranty, such as compensatory

damages. Alternatively, Appellants alleged that Appellee

breached the Warranty by failing to “pay for 100% of the costs

6
associated with the removal of the defective [TrimBoard].” Id.

at 155. As a remedy for that alternative theory of breach, they

asked for “specific performance” of the “terms of [the

Warranty]” as originally drafted -- that is, an amount equal to

the cost of replacing defective TrimBoard. 3

On appeal, however, we consider only whether

Appellants are entitled to recover compensatory damages if they

succeed in proving that the Warranty’s limited remedy provision

is unconscionable. Appellants’ counsel made clear at oral

argument that Appellants were definitively abandoning any effort

to recoup the remedy provided under the terms of the Warranty as

written:

COURT: Are the plaintiffs still seeking to
press their claim to enforce the warranty as
written?

APPELLANTS’ COUNSEL: No, not as written,
Your Honor.

. . . .

COURT: [Y]ou’re not going to proceed on the
warranty as-written claim?

3The amended complaint identifies the cost of replacing
defective TrimBoard as the “sole remedy available for breach of
th[e] [W]arranty.” J.A. 155. As discussed above, however, the
limited remedy available under the Warranty varied over time.
The version of the Warranty in effect in 1999 when Hart’s home
was completed offered purchasers twice the purchase price for
failed TrimBoard.

7
 APPELLANTS’ COUNSEL: That’s correct. Our
claim is that there’s a breach of warranty
in that the limitations of the warranty
limiting us to two times . . . the cost of
repair is unconscionable given the
circumstances and facts of this case.

See Oral Argument at 00:27-01:20, Hart v. Louisiana-Pacific

Corp., (2015) (No. 13-2375), http://www.ca4.uscourts.gov/oral-

argument/listen-to-oral-arguments.

C.

The parties vigorously litigated the question of

unconscionability in the district court. On July 18, 2011, the

district court granted Appellants’ motion to certify a Rule

23(b)(3) class consisting of “[a]ll persons in the State of

North Carolina who own a home, office or other building in which

[TrimBoard] has been installed in the past 10 years.” J.A.

1027-35. In doing so, the court reasoned that the case

presented several common questions of law and fact relevant to

the unconscionability issue, including: whether TrimBoard was

defective; whether Appellee knew TrimBoard was defective;

whether the Warranty’s limited remedies were unconscionable;

whether the Warranty failed of its essential purpose; and

whether the class members were entitled to remedies beyond those

provided by the Warranty.

Appellee thereafter filed two motions for summary

judgment. The first argued that the Warranty was not

8
unconscionable, but the district court disagreed. In the

district court’s view, “[a] manufacturer’s prior knowledge of an

inherent or latent defect” could support a finding “that a

contract or contract clause is both procedurally and

substantively unconscionable.” J.A. 2698. As a result, because

there was a genuine dispute of fact about whether Appellee knew

TrimBoard was defective when it issued the Warranty, the

district court reasoned it was too soon to decide whether the

Warranty was unconscionable.

Shortly before trial, Appellee again moved for summary

judgment, arguing Appellants’ claims were barred by a six-year

statute of repose. This time the district court agreed,

granting Appellee summary judgment because it was “undisputed

that this suit was filed beyond the six-year statute of repose

applicable to the claims of the named plaintiffs.” J.A. 3246.

The district court then elected to decertify the class, because,

in its view, determining which class members’ claims were

subject to the statute of repose “would necessarily require an

individualized determination” that would “destroy typicality,

. . . predominance, [and] otherwise foreclose class

certification.” Id. at 3247. Appellants timely noted this

appeal, challenging both the grant of summary judgment and the

district court’s decision to dissolve the class.

9
 II.

We consider first whether the district court properly

awarded summary judgment to Appellee. In doing so, we review

the district court’s legal conclusions de novo, Liberty Univ.,

Inc. v. Citizens Ins. Co. of Am., 792 F.3d 520, 523 (4th Cir.

2015), accepting Appellants’ evidence as true and drawing all

justifiable inferences in their favor, Tolan v. Cotton, 134 S.

Ct. 1861, 1863 (2014) (per curiam). We next review the district

court’s decision to decertify the class for abuse of discretion.

See EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014).

And we may, of course, affirm on alternate grounds apparent in

the record. See Ellis v. Louisiana-Pacific Corp., 699 F.3d 778,

786-87 (4th Cir. 2012).

III.

A.

The district court held Appellants’ claims were barred

by article 5, section 1-50(a)(5) of the North Carolina General

Statutes, which provides:

No action to recover damages based upon or
arising out of the defective or unsafe
condition of an improvement to real property
shall be brought more than six years from
the later of the specific last act or
omission of the defendant giving rise to the
cause of action or substantial completion of
the improvement.

10
N.C. Gen. Stat. § 1-50(a)(5). It is undisputed that Hart

finished building her home in 1999, but did not file the initial

class action complaint in this matter until 2008, placing her

claims well outside the repose period. The same is true for the

Druthers and Wuellners, whose homes were completed in 2000 and

2001, respectively. On the other hand, it is equally plain that

Appellants did file their claims within the Warranty period;

that is, within ten years of the TrimBoard being installed on

their properties. The case thus presents a knotty issue: If

goods are under warranty when the repose period runs out, may a

buyer still seek redress through a claim for breach of the

warranty?

As it happens, the North Carolina courts issued two

opinions analyzing that very question while this litigation was

unfolding. In Christie v. Hartley Construction, Inc. (“Christie

I”), 745 S.E.2d 60 (N.C. Ct. App. 2013), homeowners sued

Grailcoat WorldWide, LLC (“Grailcoat”), the manufacturer of a

waterproofing sealant called SuperFlex, seeking damages for

breach of warranty. Id. at 61. In response, Grailcoat moved

for summary judgment, arguing that the plaintiffs’ claims were

barred by a six-year statute of repose despite the fact that

SuperFlex was “fully warranted” for twenty years. See id. at

61, 63. The Court of Appeals of North Carolina agreed with

Grailcoat, holding, “a plaintiff whose action is not filed

11
within the time set forth in the statute of repose has no cause

of action for damages,” despite the existence of an extended

warranty. Id. at 63.

The district court in this case diligently applied

Christie I, and concluded Appellants’ claims were likewise

untimely. But while this appeal was pending, a parallel appeal

of Christie I was working its way up the ladder in state court.

And, on December 19, 2014, the North Carolina Supreme Court

reversed Christie I, holding, “by contracting for a warranty

term that exceed[s] the repose period, [a seller] waive[s] the

protections provided by that statute and is bound by its

agreement.” Christie v. Hartley Constr., Inc. (“Christie II”),

766 S.E.2d 283, 284 (N.C. 2014).

The parties disagree sharply over the proper

interpretation of Christie II and its implications for this

case. Appellee concedes it is bound by the Warranty, but

maintains it agreed to extend its liability beyond the repose

period only on the limited basis set forth therein. Thus,

Appellee argues, if Appellants seek “relief beyond that to which

[Appellee] has agreed” and do so “outside the statute of repose,

. . . the rationale for the [Christie II] exception does not

apply, and the statute of repose bars the claim.” Appellee’s

Supp. Br. 9.

12
 In contrast, Appellants argue that the statute of

repose loses all force if a claim for breach of warranty is made

within the Warranty period. See Appellants’ Supp. Br. 7

(“[Appellee] . . . willingly agreed to waive the six year

statute of repose and [Christie II] makes clear that the statute

of repose is inapplicable -- for all purposes and with respect

to all provisions.”). In their view, the entirety of the

Warranty is fair game; if Appellee is entitled to enforce the

limited remedy provision, then Appellants argue they should be

entitled to attack its conscionability and, if successful,

invalidate it.

We do not need to resolve the parties’ conflicting

interpretations of Christie II in this case, however, because

even assuming Appellants are entitled to litigate the question

of unconscionability after the statute of repose has elapsed, we

conclude the Warranty at issue here is not unconscionable.

A court may refuse to enforce a contract for the sale

of goods, or any clause therein, if it finds the agreement was

unconscionable as a matter of law when it was made. See N.C.

Gen. Stat. § 25-2-302. In North Carolina, a party asserting

unconscionability must demonstrate that the contract or term is

both procedurally and substantively unconscionable. See Rite

Color Chem. Co. v. Velvet Textile Co., 411 S.E.2d 645, 648-49

(N.C. Ct. App. 1992) (discussing unconscionability under § 25-2-

13
302); see also Tillman v. Commercial Credit Loans, Inc., 655

S.E.2d 362, 370 (N.C. 2008) (discussing unconscionability

generally). “[P]rocedural unconscionability involves

‘bargaining naughtiness’ in the form of unfair surprise, lack of

meaningful choice, and an inequality of bargaining power.”

Tillman, 655 S.E.2d at 370 (quoting Rite Color). “Substantive

unconscionability . . . refers to harsh, one-sided, and

oppressive contract terms.” Id. Ultimately, the question,

after considering “all the facts and circumstances of a

particular case,” is whether the contract is “so one-sided that

the contracting party is denied any opportunity for a meaningful

choice” and whether the “terms are so oppressive that no

reasonable person would make them on the one hand, and no honest

and fair person would accept them on the other.” Brenner v.

Little Red Sch. House Ltd., 274 S.E.2d 206, 210 (N.C. 1981).

Appellants argued, and the district court agreed, that

the unconscionability question turned on whether and to what

extent Appellee knew that TrimBoard was defective before

offering it for sale under the terms of the Warranty. Citing

our decision in Carlson v. General Motors Corp., 883 F.2d 287,

296 (4th Cir. 1989), the district court reasoned “[a]

manufacturer’s prior knowledge of an inherent or latent defect

can serve as a basis upon which to find that a contract or

contract clause is both procedurally and substantively

14
unconscionable.” J.A. 2698. As a result, because Appellants

“proffered evidence that TrimBoard . . . is an unsuitable

material for use as exterior siding[, and that it] . . . fails

within its expected service life,” the district court found

summary judgment in Appellee’s favor inappropriate.

We assume without deciding that Appellee’s alleged

knowledge of TrimBoard’s ineffectiveness may be evidence of the

kind of disparity in bargaining power and unfair surprise often

indicative of procedural unconscionability. See Carlson, 883

F.2d at 296 (“When a manufacturer is aware that its product is

inherently defective, but the buyer has no notice of [or]

ability to detect the problem, there is perforce a substantial

disparity in the parties’ relative bargaining power.”

(alteration in the original; internal quotation marks omitted)).

But we fail to see, at least under these circumstances, how

advanced knowledge could have established substantive

unconscionability.

In Carlson, we found advanced knowledge of a latent

defect probative on the issue of substantive unconscionability

because it was alleged that the seller abused its superior

knowledge to unfairly limit the duration of an implied warranty

of merchantability. See Carlson, 883 F.2d at 295-96. As we

explained, “Evidence of the knowledge of [a] stronger party that

the weaker party will be unable to receive substantial benefits

15
from the contract . . . should in most cases contribute to a

finding of unconscionability.” Id. at 296 (internal quotation

marks omitted). The relevant question, in other words, was

whether one party used its superior knowledge to impose a

contractual term that was harsh, one-sided, or oppressive. And

because the plaintiffs in that case discovered latent defects

only after the duration of the defendant’s limited warranty had

elapsed, we held that the facts construed in the light most

favorable to the plaintiffs could withstand a motion to dismiss.

See Carlson, 883 F.2d at 296 (“[T]he district court erred by

dismissing the claims of those named plaintiffs who alleged that

they first encountered substantial difficulties with their . . .

cars only after the purported expiration of all express and

implied warranties.”).

But we think, for several reasons, that Carlson

provides scant support for the proposition that the limited

remedy in this case is substantively unconscionable. First, the

case is plainly distinguishable on its facts. There, consumers

alleged that a manufacturer concealed knowledge of a latent

defect, imposed a durational limitation on its warranty, and

that the defect only manifested itself after the limitation had

lapsed, effectively leaving the consumers with no remedy at all.

Here, by contrast, Appellants’ evidence tends to show that

Appellee knew TrimBoard would, on average, fail within nine

16
years, yet still warranted the product for ten years and offered

twice the purchase price or, after 2005, the cost of replacement

as a remedy. Indeed, each of the Appellants in this case

discovered the alleged defect in their TrimBoard within the

Warranty period, made a claim, and received an offer of

compensation from Appellee.

Moreover, we also do not read Carlson for the broad

proposition that the terms of a warranty are necessarily

substantively unconscionable solely because one party conceals

certain information during the bargaining process. Ample

authority supports this common-sense distinction. See, e.g.,

McCabe v. Daimler AG, 948 F. Supp. 2d 1347, 1358 (N.D. Ga. 2013)

(“Plaintiffs have failed to identify any authority from the

relevant jurisdictions supporting their position that a

warranty’s time and mileage limitations may be rendered

unconscionable simply because a manufacturer knowingly sells a

defective product. Instead, the cases upon which they rely show

that additional allegations are necessary to support their

theory of unconscionability.” (discussing Georgia, California,

Florida, Illinois, and Virginia versions of § 2-302 of the

Uniform Commercial Code)); Weske v. Samsung Elecs., Am., Inc.,

934 F. Supp. 2d 698, 705-06 (D.N.J. 2013) (“[F]ailing to

disclose a known defect does not, by itself, make a warranty

unconscionable.” (construing Minnesota law)); Liparoto Const.,

17
Inc. v. Gen. Shale Brick, Inc., 772 N.W.2d 801, 805-06 (Mich.

Ct. App. 2009) (“Plaintiff also failed to establish that the

one-year limitations provision was substantively unconscionable

because the defect was not detectable for several months. The

record reveals that the bricks were shipped in December 2004 and

installed in early 2005. The record also shows that plaintiff

became aware of the problem by summer 2005. Consequently, there

is no support for plaintiff’s argument that the alleged defect

remained undetectable until it was too late to bring an action

for relief. Under these circumstances, plaintiff has not shown

that the one-year limitations provision shocks the

conscience.”).

Instead, like Carlson, cases finding substantive

unconscionability based on an inherent defect in a warranted

product require some link between the defect and the objective

unfairness of the warranty terms. See, e.g., DJ Coleman, Inc.

v. Nufarm Americas, Inc., 693 F. Supp. 2d 1055, 1073 (D.N.D.

2010) (“The clause at issue here would limit DJ Coleman’s remedy

for a breach of an express warranty to the purchase price of

Assert® or the replacement of the product. The Court finds that

the limitation of remedies provision is substantively

unconscionable. [T]he farmer is required to expend large sums

of money before any defect [ ] is noticeable, and once a defect

is found an entire year’s crop might be worthless. Once the

18
crop has failed, the farmer’s only recourse is monetary

compensation to cover his lost profit and expenditures;

replacement and repair are not viable options.” (internal

quotation marks omitted; alterations in the original)); Lennar

Homes, Inc. v. Masonite Corp., 32 F. Supp. 2d 396, 401 (E.D. La.

1998) (“The Court agrees that shipping a product with a known

latent defect may infect a limitation with unconscionability.

This limitation is not prima facie unconscionable, but Lennar

has sufficiently raised material issues of fact regarding

Masonite’s knowledge of defects to preclude summary judgment.”

(citation omitted; emphasis supplied)); Majors v. Kalo Labs.,

Inc., 407 F. Supp. 20, 22-23 (M.D. Ala. 1975) (“In summary, the

situation presented here is one of an alleged latent defect in a

product whose effectiveness was known by its manufacturer to be

questionable and an exclusion which has the effect of

foreclosing any recovery by a farmer for large and foreseeable

consequential damages for crop failure. This is, therefore, a

proper case for a determination that the attempted exclusion is

unconscionable, and such is the opinion of this Court.”).

Bussian v. DaimlerChrysler Corp., 411 F. Supp. 2d 614

(M.D.N.C. 2006), another case on which Appellants principally

rely, illustrates the difference. There, as in Carlson,

plaintiffs challenged a durational limitation in a warranty,

alleging that the manufacturer concealed information about a

19
latent defect. The court acknowledged the “broad, nearly

universally accepted proposition that a latent vehicle defect

known to the manufacturer at the time of sale that does not

manifest itself until after expiration of the express warranty

does not, in and of itself, give rise to a breach of express

warranty claim.” Id. at 621. But, critically, the plaintiff in

Bussian, as in Carlson, alleged “that the limits of the express

warranty [were] unconscionable because” the latent defect only

manifested itself after the warranty had lapsed, leaving the

plaintiff with no warranty remedy at all. See id. at 617-18,

621-22. As the Appellants’ own experience demonstrates, that is

not the factual scenario we are confronted with here.

Even if we read Carlson as broadly as Appellants would

like, we would not be bound by it because Carlson did not

interpret North Carolina law which, as a federal court sitting

in diversity, we must apply. In this case, Appellants allege

that Appellee knew TrimBoard was likely to fail within nine

years, yet still agreed to cover its product for ten years. And

although the Warranty disclaimed consequential damages, Appellee

nevertheless offered to pay to replace defective TrimBoard or

refund twice the purchase price paid for TrimBoard that failed

within ten years of purchase. Our task, then, is to assess

whether North Carolina courts would consider those terms

substantively unconscionable because they are “so oppressive

20
that no reasonable person would make them on the one hand, and

no honest and fair person would accept them on the other.”

Wilner v. Cedars of Chapel Hill, LLC, 773 S.E.2d 333, 337 (N.C.

Ct. App. 2015) (quoting Brenner, 274 S.E.2d at 210). We predict

that North Carolina courts would not reach that conclusion.

To begin with, contractual provisions disclaiming

consequential damages for economic loss are authorized under

state law and not presumptively unconscionable. See N.C. Gen.

Stat. § 25-2-719(3). And a disclaimer of consequential damages

can be valid even if a warranty’s limited remedy proves less

than ideal. See Stutts v. Green Ford, Inc., 267 S.E.2d 919, 926

(N.C. Ct. App. 1980) (upholding a limitation on consequential

damages even though plaintiff was entitled to recover cover

damages for a vehicle that could not adequately be repaired, as

contemplated by the warranty). State law also permits remedies,

similar to the ones at issue here, that limit a buyer’s recovery

to the purchase of replacement goods or the repayment of the

purchase price, see id. § 25-2-719(1)(a), and such remedies have

been upheld in cases where the consumer suffers only economic

harms. See, e.g., Byrd Motor Lines, Inc. v. Dunlop Tire &

Rubber Corp., 304 S.E.2d 773, 776-77 (N.C. Ct. App. 1983)

(limited warranty providing for purchase of replacement tires

was not unconscionable, even though tire failure was alleged to

have caused accidents resulting in damage to plaintiff’s

21
trucks); Billings v. Joseph Harris Co., 220 S.E.2d 361, 366

(N.C. Ct. App. 1975) (limited warranty remedy consisting of

return of the purchase price of seeds valid despite farmer’s

loss of crops “given the inherent element of risk present in all

agricultural enterprises”).

If the terms of the limited remedy are not per se or

categorically unconscionable, our next task is to measure their

fairness in the context of this case. To do so it is useful to

consider the default remedies that would otherwise have been

available to Appellant in the absence of the Warranty’s

limitations. The standard measure of damages for breach of

warranty in North Carolina is “the difference at the time and

place of acceptance between the value of the goods accepted and

the value they would have had if they had been as warranted,”

N.C. Gen. Stat. Ann. § 25-2-714, plus incidental and

consequential damages “[i]n a proper case,” id. § 25-2-714(3)

and -715. And when calculating damages under § 25-2-714, “[t]he

purchase price is strong evidence of the value of the goods as

warranted.” Riley v. Ken Wilson Ford, Inc., 173, 426 S.E.2d

717, 723 (N.C. Ct. App. 1993).

So here, assuming the value of the defective TrimBoard

is zero, Appellants’ damages (the difference between the value

of the goods as warranted and the value of the defective goods

accepted) would have been equal to the TrimBoard’s original

22
purchase price. The Warranty remedy applicable to Appellants’

TrimBoard, by comparison, provides twice that amount. And even

if we further assume in the absence of the Warranty’s

limitations that Appellants could have recovered some

consequential and incidental damages, such as “expenses or

commissions in connection with effecting cover” or “injury to

. . . property proximately resulting from [the] breach,” id.

§ 25-2-715(1) and (2)(b), we still cannot say that North

Carolina courts would find the Warranty oppressively one-sided

in every case. Hart, for example, received an offer under the

Warranty equal to roughly 75% of the lone estimate she obtained.

That disparity is a far cry from the circumstances in which

other courts have found limited remedies unconscionable. See,

e.g., Kalo Labs., Inc., 407 F. Supp. at 22-23 (holding that

remedy limited to return of purchase price was unconscionable

where seed manufacturer allegedly knew of defect in seed that

caused farmer to lose his entire crop, the purchase price remedy

was 30 cents an acre, and the farmer’s losses were between $90

and $100 per acre).

Finally, by offering a ten-year warranty, Appellee

granted Appellants a limited remedy in years seven through ten

that would otherwise have been extinguished after the expiration

of the repose period. If Appellee had not offered a ten-year

warranty, purchasers like Appellants who filed suit beyond the

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six-year repose period would have had no remedy at all.

Instead, under the terms of the Warranty, Appellants had the

chance (before they abandoned it) to recover twice what they

paid for the defective TrimBoard. That may not be the remedy

Appellants want, but it is substantially more valuable than

nothing at all. And that additional benefit must be considered

in measuring the Warranty’s overall fairness.

In sum, assuming the truth of Appellants’ evidence,

Appellee knew TrimBoard was likely to fail within nine years,

but nevertheless agreed to warrant the product for ten years and

offered purchasers twice their money back or the cost of

replacement if and when their TrimBoard did fail. The Warranty

also extended that remedy beyond the point that Appellee’s

liability would otherwise have been extinguished by the statute

of repose. We doubt that North Carolina courts would find that

bargain harsh, oppressive, or one-sided. See Harbison v.

Louisiana-Pacific Corp., 602 F. App’x 884, 887 (3d Cir. 2015)

(holding, in a similar case involving TrimBoard, “because the

warranty . . . provides [consumers] with a benefit [they] would

not otherwise have, the damages limitation [is] not

unconscionable”). As a result, Appellee’s alleged advanced

knowledge about TrimBoard’s ineffectiveness alone will not

sustain a finding under North Carolina law that the Warranty’s

limited remedy is unconscionable. Cf. Rite Color, 411 S.E.2d at

24
649-50 (contract not substantively unconscionable where price

charged was higher than price available from other sellers,

making it irrelevant that the trial court did not assess

allegations of fraud bearing on potential procedural

unconscionability).

Accordingly, in light of the fact that Appellants have

abandoned any attempts to recover the limited remedy provided by

the Warranty as written and proceed only on the theory that the

Warranty is unconscionable, we affirm the district court’s grant

of summary judgment.

B.

We now consider the district court’s decision to

decertify the class. Class actions are “an exception to the

usual rule that litigation is conducted by and on behalf of the

individual named parties only.” Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2550 (2011) (internal quotation marks omitted).

To obtain class certification, plaintiffs bear the burden of

showing

(1) the class is so numerous that joinder of
all members is impracticable; (2) there are
questions of law or fact common to the
class; (3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and (4) the
representative parties will fairly and
adequately protect the interests of the
class.

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Fed. R. Civ. P. 23(a). In addition to meeting those

requirements of numerosity, commonality, typicality, and

adequacy, the proposed class must also satisfy at least one of

the requirements of Rule 23(b).

Here, Appellants sought class certification pursuant

to Rule 23(b)(3), which requires a showing that “(1) common

questions of law or fact . . . predominate over any questions

affecting only individual class members; and (2) proceeding as a

class [is] superior to other available methods of litigation.”

EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014); see

also Fed. R. Civ. P. 23(b). The district court initially

certified a class consisting of “[a]ll persons in the State of

North Carolina who own a home, office or other building in which

[TrimBoard] has been installed in the past ten years.” J.A.

1036. But the district court later concluded decertification

was appropriate because the statute of repose issue undercut

typicality, among other things. We find no abuse of discretion

in that decision, particularly in light of our decision

concerning the issue of unconscionability.

As noted, Rule 23(b)(3) requires common questions of

law or fact to predominate over any questions affecting only

individual class members. Almost all of the predominate

questions identified by the district court centered on the issue

of unconscionability, including “[w]hether Trimboard is

26
defective[,] . . . [w]hether [Appellee] knew or should have

known of the defect[,] . . . [w]hether [Appellee’s] limitations

on the express warranty [we]re unconscionable[,] [w]hether the

express warranty fail[ed] of its essential purpose,” and whether

Appellants were entitled to compensatory damages beyond the

Warranty’s limited remedy. J.A. 1032. Our conclusion that the

Warranty’s limited remedy provisions are not unconscionable,

therefore, calls into serious doubt the central attributes of

the class initially certified by the district court.

That aside, Rule 23(a)(3) requires “the claims . . .

of the representative parties” to be “typical of the

claims . . . of the class.” As noted, Appellee provided

different versions of the Warranty with different remedy

provisions for TrimBoard sold before and after 2005. The class

originally certified by the district court took no account of

this distinction and, although the problem may ultimately be

addressed by the creation of subclasses, this multiplicity of

warranties undermines typicality. As we have previously

observed, “plaintiffs simply cannot advance a single collective

breach of contract action on the basis of multiple different

contracts.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155

F.3d 331, 340 (4th Cir. 1998). The same logic holds in this

context and provides additional support for the decertification

order.

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 Accordingly, we affirm the district court’s decision

to decertify the class.

IV.

For the foregoing reasons, the judgment of the

district court is

AFFIRMED.

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