Roof shingles on top of the house.

Often when I get a pitch about a lawyer's big win, I think “Well, sure you won. Look at the facts. You clearly had the better case.”

That's what makes a series of victories by litigators at Skadden, Arps, Slate, Meagher & Flom so impressive. Because when I look at the facts in those cases, my reaction is “What? They totally deserve to lose!”

And yet, by and large, they haven't—not at the district court level in Florida, California and Illinois. Now, solidifying the wins, the Skadden team just prevailed on behalf of Tamko Building Products Inc. before the U.S. Court of Appeals for the Eleventh Circuit. (The team did come up short in Missouri state court.)

So take a bow, partners John Beisner and Jessica Miller and counsel Geoffrey Wyatt. You're crushing it for Tamko —even if I'm sort of appalled by your success.

The litigation, which I first wrote about last year, concerns roof shingles—a decidedly un-sexy product. But the underlying issue is a hot one: what constitutes a valid arbitration agreement?

The Eleventh Circuit considered an appeal from two sets of Florida homeowners who lost before a federal judge in Tampa. Both homeowners hired roofers to install Tamko shingles on their roofs, but were unhappy with the results. They said the shingles were cracking and discolored, and that the granules were falling off. Alleging a design defect, they sought to file a class action.

Tamko customers with similar complaints in other states have tried to do the same.

Here's where it gets interesting. Tamko asserts that all its customers must arbitrate their claims individually.

And how exactly did their customers agree to this?

When their roofers opened the bundles of shingles. The agreement was printed on the wrapper.

To be sure, there's an established line of cases holding that when people open various items—shrink-wrapped packages of software or prepaid cell phones, for example—they're bound by the agreements on the packaging.

But when some guy you hired to replace your roof does it? And you never even saw the packaging, let alone opened it?

“Plaintiffs knew that they had agreements with their roofers to install shingles on their roofs,” wrote Karla Gilbride of Washington, D.C.-based Public Justice for plaintiffs Stephen Dye and Douglas Bohn. “But to infer that the roofers also knew that by opening the shingles they were binding plaintiffs to arbitrate all future disputes with Tamko, including disputes unrelated to the limited warranty, requires several additional steps that this court cannot and should not take.”

The court could and did.

Judge Kevin Newsom, a former partner at Bradley Arant Boult Cummings who was appointed by President Donald Trump in 2017, wrote the unanimous decision, joined by Gerald Bard Tjoflat and Stanley Marcus.

Newsom has a reputation as a lively writer, and his opinion upholding the lower court's decision is a good read.

It begins, “You've undoubtedly heard of—and for that matter probably accepted the terms of—a 'shrinkwrap' agreement, which binds a software (or small-electronics) purchaser to an inside-the-box contract if she opens the product and retains it for some specified time. In this cyber age, you've also almost certainly assented to the terms of a 'clickwrap' or 'scrollwrap' agreement—for instance, by hitting 'I accept' when installing the latest operating system for your smartphone.

“This case—not quite as hip but governed by the same basic principles—requires us to determine the enforceability of what, for lack of a better label, we'll call a 'shinglewrap' agreement.”

If you were a person who was installing your own roof (and hey—apparently some people do) I'd be with him all the way. You buy and open your own packs of shingles, and it's on you if you don't read the wrapper.

But the rest of us? The normal people who hire roofers?

The court's view of agency is what I have such a hard time accepting

“Neither party seriously disputes that the roofers were the homeowners' agents for purposes of purchasing and installing shingles,” Newsom wrote. “Both homeowners expressly delegated those tasks to their roofers, their roofers accepted those tasks by signing contracts, and the homeowners maintained control over their roofers' completion of those tasks pursuant to those contracts.”

He continued, “Purchasing a product necessarily and by definition encompasses accepting the terms of that purchase. The homeowners here expressly delegated to their roofers the task of purchasing shingles, and yet they now contest terms—in particular, those requiring mandatory arbitration—that are part and parcel of that purchase.”

To me, it's disingenuous of the court to lump it all together. As far as I'm concerned, a roofer as my agent can accept roof-related purchase terms—like, say, if hail damage isn't covered by the warranty.

But my right to go to court? To have my case heard by a jury of my peers? Sorry, but access to justice is not something for my roofer to decide.

 

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