UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, 
2

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Unpublished opinions are not binding precedent in this circuit.
3

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.
4

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.
5

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 
6

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 
7

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?

 3 The 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. 
8

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/oralargument/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 
9

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.
10

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.
11

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 
12

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.
13

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-
14

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 
15

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 
16

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 
17

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., 
18

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 
19

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 
20

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 
21

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 
22

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 
23

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
24

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 
25

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. 
26

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 
27

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.
28

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.