On July 2, 2014, the U.S. Court of Appeal for the Seventh Circuit entered its opinion in IKO Roofing Shingle Products Liability Litigation, No. 14-1532 (7th Cir. July 2, 2014), and vacated a district court’s decision denying class certification.

A Seventh Circuit panel of Judges Wood, Easterbrook, and Kanne found that the district court erred when it interpreted the Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), as requiring plaintiff to demonstrate “commonality of damages.” Instead, the Seventh Circuit held that these SCOTUS decisions merely require plaintiffs to match their theory of loss to their theory of liability—a fact that is “equally true in a suit with just one plaintiff.”

We have previously blogged about the Seventh Circuit’s limiting interpretation of Comcast (read more here). The Seventh Circuit went further in IKO and essentially found the fact that Comcast involved a Rule 23 class action beside the point.

Although the IKO decision arose outside the employment context, we anticipate that plaintiffs’ counsel will argue that it spells bad news for employers faced with class claims, particularly in the Seventh Circuit, and that it further limits defendants’ ability to use disparate damages as grounds to oppose class certification.

Factual Background

Purchasers of organic asphalt roofing shingles brought suit against IKO Manufacturing contending that it falsely told customers that the shingles met an industry standard known as ASTM D225. Plaintiffs asked the district court to certify a class that would cover IKO’s sales in eight states since 1979. The district court denied the motion.

The district court noted that Comcast and Wal-Mart require proof that plaintiffs, “will experience a common damage” and that their claimed damages “are not disparate.” The district court found that the inevitable differences in consumers’ experiences with IKO’s tiles prevented class certification. Subsequently, Plaintiffs sought interlocutory review under Rule 23(f), which the Seventh Circuit granted.

The Seventh Circuit’s Opinion

The Seventh Circuit disagreed with the district court’s reading of Wal-Mart and Comcast.  It noted that, if the district court’s reading is correct, class actions about consumer products are “impossible.”

With respect to Wal-Mart, the Seventh Circuit explained that the case “has nothing to do with commonality of damages.” Instead, at least according to the Seventh Circuit, Wal-Mart deals with the need for “conduct” common to members of the class. In that case, damages differed but only because the underlying conduct differed. The Seventh Circuit reasoned that “[i]n a suit alleging a defect common to all instances of a consumer product, however, the conduct does not differ.”

With respect to Comcast, the Seventh Circuit recognized that the case “does discuss the role of injury under Rule 23(b)(3), though not in the way the district court thought.” The Seventh Circuit explained that, there, plaintiffs specified four theories of liability, and their damages expert estimated harm resulting from all four. Because the district judge certified a class limited to one of the four theories, plaintiffs lacked a theory of loss that matched the theory of liability.

The Seventh Circuit held that, in IKO by contrast, plaintiffs had two “theories of damages that match[ed] their theory of liability” and, therefore, plaintiffs did not run afoul of Comcast. The Seventh Circuit noted that, although a buyer-specific remedial approach (purchasers whose tiles actually failed are entitled to recover damages if non-conformity to the D225 standard caused the failure) “would require confining any class certification to questions of liability,” it “is not hard to frame liability issues suited to class-wide resolution.”

Implications for Employers

The Seventh Circuit’s ruling is plaintiff-friendly and cuts back on defenses that other jurisdictions have utilized to cabin class actions. In Comcast, the Supreme Court noted that, to meet the predominance requirement, plaintiffs must show that damages resulting from the alleged injury are “measureable ‘on a class-wide basis’ through use of a ‘common methodology.’” The Supreme Court went on to hold that plaintiffs’ model fell short of establishing that damages were “capable of measurement on a class-wide basis” and that, without another methodology, plaintiffs could not show Rule 23(b)(3) predominance:, “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.”

Despite the Supreme Court’s language, in IKO, the Seventh Circuit specifically held that a plaintiff need not demonstrate “commonality of damages” to obtain class certification under Rule 23(b)(3). It remains to be seen whether the Seventh Circuit’s interpretation is faithful to the Supreme Court’s intent, and whether this interpretation will be applied to workplace class actions.

This blog previously appeared on the Seyfarth Shaw website.

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The final attribute of the RIMS Risk Maturity Model should be of great interest to risk managers responsible for establishing an enterprise risk management (ERM) program. Without some level of business resilience and sustainability built into your program, the iterative, cultural changes that are created by the ERM process will wane and your exposure to loss events will increase.

Understanding Consequences

Traditionally, business continuity plans have focused on technology platforms, but resiliency means much more than ensuring that your information technology infrastructure is prepared for disaster recovery. Consider that the IT infrastructure that is the focus of your business continuity plans is likely to play a critical role in the execution of your mitigation activities (for example, a server that supports access rights and security). A lack of capability to explicitly identify relationships between these entities can result in huge increases in short term risk exposure at the worst possible time, as rapidly deteriorating business environments require even stronger change management ability.

Analysis Based Planning

The key is to determine the downstream dependencies and effects that various external events may have on your operations, and to re-evaluate and assess the potential impact of these events on a frequent basis. Typical business impact analysis (BIA) identifies critical functions, but does not account for a business area’s inherent risk exposures or confidence in mitigation plans.

An ERM approach prioritizes not just business functions, but also mitigation activity and emerging risks that require increased attention. These factors should be weighed against each other and reevaluated as part of the business continuity process. In fact, the concept of “Proactivity,” or the third dimension of the RMM assessment, is specifically geared to evaluate an organization’s ability to prepare for and manage surprises before they materialize.

Looking to integrate Business Continuity with Risk Management? Download our guide on Integrating Governance Areas with ERM.

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As the December 31, 2014 expiration of the Terrorism Risk Insurance Act inches closer, both chambers of Congress are moving forward with their version of a long-term extension. The Senate is expected to pass its version of an extension as early as Thursday while the House Financial Services Committee approved its version of an extension along party lines on June 20th. The House proposed extension would make substantial changes to TRIA that can be seen in the following table:

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Storm Surge Flooding MISHELLA / Shutterstock.com

More than 6.5 million homes along the U.S. Atlantic and Gulf coasts are at risk of storm surge inundation, representing nearly $1.5 trillion in total potential reconstruction costs, according to Corelogic’s 2014 Storm Surge Report. Of that risk, more than $986 billion is concentrated within 15 major metropolitan areas.

While many homes and businesses most vulnerable to hurricane damage are in Federal Emergency Management Agency flood zones, these represent just a fraction of the structures that suffer a hurricane’s effects. Homeowners who live outside the FEMA flood zones typically do not carry flood insurance, given that there is no mandate to do so, and therefore may not be aware of the potential risk storm surge poses to their properties, Corelogic explains.

Uncertainty about the geographical and meteorological risks may lull many into a false sense of safety. “This year’s season is projected to be slightly below normal in hurricane activity, but the early arrival of Hurricane Arthur on July 3 is an important reminder that even a low-category hurricane or strong tropical storm can create powerful riptides, modest flooding and cause significant destruction of property,” said Dr. Thomas Jeffery, senior hazard scientist for CoreLogic Spatial Solutions.

Florida ranks number one for the highest number of homes at risk of storm surge damage, with nearly 2.5 million homes at various risk levels and $490 billion in total potential exposure to damage. Here’s how all 19 states studied stack up, based on number of homes at risk:

State Table (Ranked by Number of Homes at Risk)

At the local level, the New York metropolitan area (including northern New Jersey and Long Island) contains not only the highest number of homes at risk for potential storm surge damage (687,412), but also the highest total reconstruction value of homes exposed, at more than $251 billion. Take a look at the storm surge risk for the top 15 metro areas:

Storm Surge Risk for Top 15 Metro Areas

Corelogic also noted variation in the costs of rebuilding, which does not directly correlate to the amount of property at risk. The total reconstruction cost value of homes along the Atlantic coast is nearly $951 billion, for example, which is approximately double the value of at-risk properties in the Gulf region’s $545 billion.

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