                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                               23
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.



                                        25
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.

                                            27
          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.




                                  28
